craig robertson | Horse Racing Free Tips

Team Medina Spirit Goes to Court to Force Alternate Urine Testing

The connections of GI Kentucky Derby winner Medina Spirit (Protonic) have filed a civil complaint against the Kentucky Horse Racing Commission (KHRC) in an effort to force the agency to turn over the colt's post-race urine sample so it can be tested in a way that trainer Bob Baffert and owner Zedan Racing Stables, Inc., believe will prove that a betamethasone finding resulted from an ointment to treat a skin condition (Otomax) and not from an intra-articular injection.

According to a June 7 filing in Kentucky's Franklin County Circuit Court that seeks an injunction to keep the KHRC from allegedly violating their due process rights, attorneys for both Baffert and Zedan Racing's founder, Amr Zedan, outlined a process by which they made “demands” to the KHRC on how split-sample testing should be conducted to either confirm or deny the initial finding from the commission's lab.

The filing contends that the KHRC initially refused the plaintiffs' terms of how and under what circumstances the referee sample would be tested. But then, after the KHRC acquiesced in part to an alternate proposal, the portion of Medina Spirit's biological sample that was to be used for that purpose got damaged in transit and was rendered untestable by the time the package reached the lab.

Jennifer Wolsing, the general counsel for the KHRC, did not reply to an emailed query for comment prior to deadline for this story.

“[T]here has been an absolute firestorm surrounding Media Spirit and the alleged test results,” the complaint states. “Specifically, Baffert has been excoriated by some members of the press and public who have accused him of 'injecting' Medina Spirit with Betamethasone in an effort to cheat to win the Kentucky Derby. This public discourse has frequently suggested that Betamethasone is a 'banned' substance and that Medina Spirit was subjected to 'doping.' Neither

are remotely true.”

Betamethasone is a corticosteroid allowed in Kentucky as a therapeutic medication, but state rules require at least a 14-day withdrawal time before racing. Any level of detection on race day is a Class C violation, with no distinction listed in the rules pertaining how the substance got inside a horse.

No ruling has been issued to date in this case, although Baffert's attorney, W. Craig Robertson, confirmed in a June 1 statement that split-sample blood testing from Medina Spirit had come back and that it did confirm the presence of betamethasone.

But even while that analysis was being conducted at an accredited referee lab, another subplot was unfolding behind the scenes. The June 7 court filing explains it.

According to the complaint, on May 14, Baffert and Zedan's counsel informed the KHRC that the plaintiffs wanted both blood and urine samples to be tested from Medina Spirit's splits, and that they wanted an expert of their choosing to be able observe the analysis at their chosen lab.

They also asked for what is called a “limits of detection” test to be performed that could allegedly show not just that betamethasone was present, but that other compounds in Otomax were there too–namely clotrimazole, gentamicin, and betamethasone valerate.

The KHRC refused these demands (beyond allowing them to choose the accredited lab). So on May 19 the legal team made the request a second time, this time in writing along with rationale and legal support to explain their demands. This too was denied by the KHRC on May 21.

On May 24, the complaint states that a compromise was reached between the parties: The KHRC would allow plaintiffs to send the part of the biological samples that remained from Medina Spirit's primary samples (that had already been tested) to an accredited lab for the different form of testing the plaintiffs wanted.

“The KHRC represented to the Plaintiffs' that these 'remnants' were in good condition and in sufficient quantity to allow scientific testing,” the court filing states.

But on June 1–the same date that Medina Spirit's referee sample was announced by Robertson as positive–the KHRC informed Baffert and Zedan that the remnants had been damaged during transport to the testing lab.

“The manner in which the Betamethasone found its way into Medina Spirit is critical,” the complaint states. “There is a huge difference in a Betamethasone finding due to an [intra-articular] joint injection versus one from a topical ointment—both from a regulatory and public relations standpoint. The testing the plaintiffs' seek would provide empirical and scientific reasonable certainty that the miniscule and materially irrelevant reported positive in Medina Spirit's post-race sample was innocuously sourced from the topical Otomax.”

The attorneys for Baffert and Zedan allege in the complaint that they have a workable Plan B that would allow for the more detailed testing they seek–but that the KHRC purportedly won't allow it.

“There currently sits in the KHRC freezer and unopened, untested, and hopefully pristine split sample of Medina Spirit's urine. Given the foregoing, the plaintiffs requested that the urine be immediately shipped to the agreed-upon lab for testing of all components in Otomax. The KHRC has refused this reasonable request and has indicated it has no intention of allowing the urine split sample to be tested in any way.

“The urine sample is the best method available to determine whether the Betamethasone in Medina Spirit was present due to an injection or the topical cream Otomax,” the complaint sums up. “Time is of the essence, as biologic samples degrade with each passing day. Without intervention from this Court, Plaintiffs will forever lose the opportunity to test, analyze and cross-examine the only evidence that purports to establish a violation of the KHCR's regulations.”

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Show Us The Paper, Bob: Records To Back Up Baffert’s Story Remain A Matter Of Trust

The number of people inclined to nod along when Hall of Fame trainer Bob Baffert says, “Just trust me,” is getting smaller and smaller these days. First there was Justify, then Charlatan/Gamine, then Merneith, then Gamine again, and now Medina Spirit – five drug violations in the past year and six in recent memory. This time, Baffert told media on Sunday, he was getting out in front of the issue, not waiting for a split sample test came back positive before announcing that his horse had failed a post-race test. He has since told mainstream media that he didn't want to repeat his mistakes in the Justify case, where he and the California Horse Racing Board were widely criticized for keeping the colt's test for scopolamine a secret until the New York Times reported on it months later.

The advantage of being transparent about something like this is that you can control the narrative, and since the Kentucky Horse Racing Commission isn't permitted to discuss a positive before a split sample test and a ruling, Baffert and his legal team have arguably been able to do just that. Baffert has made quite the media tour since Sunday morning, appearing on CBS, Fox News, and elsewhere to tell his side of the story, which seemed to mostly amount to 'I don't know what happened but testing is too strict.'

When Baffert's public stance evolved from 'I didn't do it' to 'Ok, I did it, but it was a mistake,' there was ample opportunity to keep a strong public front. On Tuesday, a statement distributed via Baffert attorney Craig Robertson blamed the betamethasone positive on Otomax, an anti-fungal cream made for dogs which contains betamethasone. This, Robertson said, was used on dermatitis on Medina Spirit after the Santa Anita Derby daily until the day before the Kentucky Derby.

“As I have stated, my investigation is continuing and we do not know for sure if this ointment was the cause of the test results, or if the test results are even accurate, as they have yet to be confirmed by the split sample,” read Baffert's Tuesday statement. “However, again, I have been told that a finding of a small amount, such as 21 picograms, could be consistent with application of this type of ointment. I intend to continue to investigate and I will continue to be transparent.”

So, be transparent.

The beautiful thing about the administration of a prescription therapeutic drug in either California or Kentucky is that it should leave quite a paper trail. First, there would be the prescription itself, which would appear on the box the ointment container came in (the same box that lists betamethasone as an ingredient) or possibly the tube itself (which also lists the ointment's ingredients). The prescription would include a date, instructions for use, and the veterinarian's name. Then, administration of a prescription to a horse in California should trigger a daily treatment report to the California Horse Racing Board. Treatment of a Derby horse in Kentucky would also trigger a daily treatment report, given to the Kentucky Horse Racing Commission. The prescribing veterinarian would also have a record of dispensing the medication – probably more than once, as it comes in a small container intended for dogs – alongside a diagnosis and dates.

Unlike other types of records, veterinary records that are provided in the course of reporting to the state racing commissions do not become subject to public records requests. In general terms, veterinary records are owned by the owner or manager of the animal, not the veterinarian, clinic, or any third party. So Kentucky and California cannot release what records they have (or don't have) about this lengthy prescription treatment, but Baffert could. Likewise, he could authorize the release of his veterinarian's records. In fact, he was asked during Sunday's news conference whether he planned to release his records and his response was that he intended to release them to the Kentucky commission.

When this reporter asked whether there were treatment reports submitted to the CHRB for Otomax, Robertson responded with the following: “I do not know. As you can imagine I have had my hands full. What I do have are the vet records showing the treatment.”

When asked whether Baffert intended to provide evidence of the vet's prescription of Otomax, Robertson replied “We have those vet records and have provided them to Pimlico.”

While it's certainly understandable that Baffert doesn't want the general public, with its lack of veterinary knowledge, rifling through his horse's medical history, he's the one who started this.

When asked whether the prescribing veterinarian, who so far Baffert has declined to name, had a rationale for choosing Otomax as a treatment for skin disease over other treatments that don't contain betamethasone, Robertson said he didn't know.

A photo provided with Tuesday's statement showed an image of a dark bay horse's right hindquarter, dotted with areas of skin irritation characteristic of the dermatitis described by Baffert. What wasn't specified in the statement was the date the photo was taken; since it was provided as evidence of a condition the horse was treated for from around the April 3 Santa Anita Derby until the day before the May 1 Kentucky Derby, one may assume it was intended to show the condition as it appeared during that timeframe. However, metadata on the image indicates it was taken with an iPhone around 7 a.m. on May 11. If Baffert's veterinarian had been made available to the press and the public, it would be logical to ask why four weeks' worth of prescription treatment had apparently not resolved the issue, which was also visible in images and video of the horse taken at Pimlico Wednesday morning.

A follow-up question asking Robertson about the timing of the image was not answered.

As a reporter, I can appreciate any subject's attempts to be transparent – it's supposed to make my job easier. But true transparency, particularly from someone who hasn't always provided it, means more than just “trust me.”

The post Show Us The Paper, Bob: Records To Back Up Baffert’s Story Remain A Matter Of Trust appeared first on Horse Racing News | Paulick Report.

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Baffert, Maryland Jockey Club Reach Agreement For Medina Spirit To Run In Preakness

Bob Baffert's attorney Craig Robertson announced Tuesday afternoon that an agreement has been reached for Kentucky Derby first place-finisher Medina Spirit, and his stablemate Concert Tour, to run in Saturday's Preakness Stakes at Pimlico Race Course.

The following letter sets out the conditions of that agreement. It was sent by Robertson to Alan Rifkin, attorney for The Stronach Group, operator of Pimlico.

Dear Mr. Rifkin,

In the best interest of horse racing, and the integrity of the sport, Mr. Baffert consents to blood testing, monitoring and medical record review by the Maryland Jockey Club (“MJC”) on the horse Medina Spirit, and two other horses trained by Mr. Baffert. Medina Spirit and Concert Tour are presently entered in the Preakness Stakes and Beautiful Gift is presently entered in the Black Eyed Susan Stakes.

In addition to the testing and monitoring conducted by the Maryland Racing Commission (“MRC”) and/or in cooperation with the MRC, the horses were tested upon arrival at Pimlico and further blood samples will also be drawn today and as may be further determined by MJC from each of the horses. The MJC blood samples will be tested by a lab chosen by the MJC.

Consistent with the fair procedure process provided by The Stronach Group, Mr. Baffert consents to information regarding the results of the MRC and MJC tests, and other relevant medical and administrative records relating to the horses being disclosed to the MJC and Dr. Dionne Benson, The Stronach Group Chief Veterinary Officer.

If any of the three horses test positive for a banned substance, or at a level for a permitted therapeutic substance which is above the designated limit, or if reasonable conditions warrant after MJC's review of the medical or administrative records, Mr. Baffert, or MJC on his behalf, will scratch that horse from the upcoming race in which that horse is entered this weekend at Pimlico.

Mr. Baffert has given these consents to further the interests of horse racing and the public. MJC may provide this letter and consents herein to the MRC and Mr. Baffert consents to the public release of this letter and all testing results. Mr. Baffert represents that he has authority to grant the consents represented herein on behalf of the owners of the aforementioned horses.

The integrity of the sport is of the upmost importance to Mr. Baffert and by consenting to this testing regimen and monitoring he reaffirms his commitment and dedication to the sport. Please let me know if you have any questions.

Sincerely yours,

Craig Robertson

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Baffert Team Will Fight If Banned From Preakness

While awaiting word from the Maryland Jockey Club concerning the status of Bob Baffert and Medina Spirit (Protonico) for the GI Preakness S., Baffert's lawyer Craig Robertson said he will seek a temporary restraining order if Medina Spirit is not allowed to run.

His status became unclear Sunday when Baffert informed the media that he had been told by the Kentucky Racing Commission that Medina Spirit had tested positive for the corticosteroid betamethasone in tests conducted following the race. A few hours later, 1/ST, the owners of Pimlico, put out a press release stating they were still reviewing the situation. They bought themselves a bit of time when deciding to move the draw for the Preakness from Monday to Tuesday.

“Pimlico has not taken such action yet, Robertson said in a text message. “However, if they do, I will file such a TRO. There is something called due process of law and any rush to judgment or punishment at this point would be premature and unlawful. If anyone takes such action before the split comes back, we will act.”

Baffert told the TDN that he will not, no matter his personal status, be attending the Preakness.

The Kentucky Racing Commission has had little to say about the matter, which probably won't change until after a second lab has tested a split sample. Robertson has already set the ball in motion regarding the testing of the split sample.

“We will be given a list of labs by the Kentucky Horse Racing Commission from which we can chose to send the split,” he said via text. “That list has not been provided yet. No definitive time frame, but past experience tells me that from this moment until split results come back will be at least a couple of weeks.”

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