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CHRB Denies Stay of Justify Decision, Will Entertain Appeal

In the latest detour in the exhaustive legal saga stemming from Justify's 2018 GI Santa Anita Derby win, the connections of the horse during his racing career filed a notice last week with the California Horse Racing Board (CHRB) requesting that the agency entertain an appeal of a recent board of stewards decision disqualifying the horse from the race and to stay the purse distribution.

In response, the CHRB have denied a stay of the stewards' decision but stated that it will “assign a Hearing Officer in this matter where the issue of timeliness of the appeal and appeal itself will be heard and a proposed decision submitted to the Board for consideration,” according to an order issued by the CHRB Tuesday.

The plaintiffs in the appeal are owners China Horse Club International Limited, Head of Plains Partners, Starlight Racing, WinStar Farm, jockey Mike Smith and trainer Bob Baffert.

After the New York Times first reported that Justify had tested positive post-race for scopolamine, Mick Ruis, owner-trainer of the runner-up that day, Bolt d'Oro, sought to have the result of the race overturned with Bolt d'Oro declared the winner.

Ruis alleged that the CHRB failed to follow its own rules when it decided not to pursue penalties after Justify's positive test. The CHRB argued that Justify should not be disqualified because the positive test was the result of contamination linked to jimson weed.

At the end of last year, a Los Angeles County Superior Court judge ordered the CHRB to set aside the stewards' 2020 decision and issue a new ruling disqualifying winner Justify from the Santa Anita Derby.

Early in March, the CHRB reached a separate settlement that called for the agency to pay Ruis $300,000, and to order a redistribution of the $1-million purse.

In last week's notice, Amanda Groves, who represents Justify's connections, argued that grounds for an appeal included how the plaintiffs were not a party to the lawsuit between Ruis and the CHRB, leading to “Procedural irregularities and denial of due process and/or a fair and impartial hearing.”

Groves also reiterated the CHRB's original claim, writing that “it is undisputed that the positive scopolamine test was a result of environmental contamination due to inadvertent exposure to jimsonweed in hay/straw.”

BloodHorse reported that Ruis's attorneys had filed a response arguing that none of the grounds raised in the appeal are relevant.

When asked about the contents of the letter, Darrell Vienna, who represents Ruis, told the TDN that the CHRB issued the disqualification order “because they were ordered to do so by the court.”

The court did not demand that the CHRB hold another hearing on the matter, Vienna added. “It just issued an order to disqualify the horse, Justify, and to redistribute the purse,” he said.

“If the Justify parties have issue with that, that issue should be addressed at the Superior Court, in my opinion,” said Vienna. “If the court orders a subordinate agency to do something, they must do it.”

According to last week's notice of appeal, Justify's first-place finish in the Santa Anita Derby accrued the owners a combined $585,000, while Smith and Baffert each received $58,450.

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Milton Pineda Banned 15 Years, Fined $195,000

Southern California-based trainer Milton Pineda has been banned for 15 years and ordered to pay a total of $195,000 in fines and legal fees after an arbitration panel found him guilty of seven rule violations under the Horseracing Integrity and Safety Unit (HIWU)'s Anti-Doping and Medication Control (AMDC) program, according to a final decision dated Mar. 12.

Between June 2 and July 4 last year, seven different Pineda-trainees tested positive for Diisopropylamine—a banned substance under the Horseracing Integrity and Safety Act (HISA)—after running at Santa Anita and Los Alamitos. During that period, the Pineda-trained Bella Renella (Clubhouse Ride) ran and won twice at Santa Anita.

The ruling followed a full in-person evidentiary hearing at the JAMS Resolution Center in Irvine, California, on Feb. 27, presided over by arbitrator Nancy Holtz.

“One of the arguments that I made but that I believe in is that the punishment should fit the violation or the crime. But in this case, there is no connection between the conduct or the alleged conduct of Mr. Pineda and the 15 years and the nearly $200,000 in fines,” said attorney Darrell Vienna, who represented Pineda.

“This is just another example of the overreach and the unfairness of HISA and HIWU,” said Vienna, adding that he was unsure whether Pineda would appeal the decision.

Holtz's ruling is by far the harshest penalty meted out since the federal ADMC program went into effect last May.

HIWU classifies Diisopropylamine (DIPA) as a vasodilator, which is a substance that dilates the blood vessels to allow blood to flow more freely through them. Diisopropylamine is also found in several everyday items like tobacco and beauty products, and hand sanitizer.

Indeed, according to the final ruling, Pineda argued that he had “never knowingly or intentionally administered DIPA to his horses,” and that the positive tests likely resulted from the use of certain feed supplements, or cross-contamination through the use of hand sanitizers by official testing barn personnel at Santa Anita Park or Los Alamitos.

Among other claims, Pineda argued that the chain of custody of certain samples “was not done in a way to preserve the integrity of the samples,” and that the testing conducted on one of Bella Renella's B-Samples “was not properly conducted” either, according to the final ruling.

Holtz dismissed these arguments.

“Mr. Pineda has failed to establish no fault or negligence or no significant fault or negligence,” the ruling states, arguing that Pineda failed to prove that the “source was contamination of feed supplements,” and that “there is unrefuted evidence that the hand sanitizer at the test barn of Santa Anita Park and Los Alamitos was not used” by the official personnel.

Holtz also found that Pineda's challenges to the proper chain of custody of the samples failed “at the first step, as he has not established any departure from the Laboratory Standards,” and that questions surrounding the validity of Bella Renella's B-Sample analysis is moot due to the positive findings of the other samples.

A maximum first anti-doping rules violation under HISA for a Diisopropylamine positive is two years. Holtz determined that the seven separate rules violations came to 14 years to be served consecutively.

On the back of his provisional suspension, Pineda transferred care of his horses to trainer Salvador Naranjo, who in turn hired Filberto Alvarado, a former employee and groom of Pineda.

Holtz's rulings finds Pineda guilty of “program training” in breach of his provisional suspension, for which HIWU sought an additional one year ban and $5,000 fine for aggravating circumstances.

“There is evidence that Mr. Pineda has flagrantly disregarded the ADMC Program by breaching his Provisional Suspension and prior Ineligibility, and also exhibited deceptive or obstructive conduct by refusing to allow HIWU investigators to search his phone,” the rulings states.

“Throughout his Provisional Suspension (September 15, 20, 22, 26 and October 19), Mr. Pineda was seen on multiple occasions attending at Los Alamitos watching his Covered Horses train and meeting with both Mr. Naranjo and Mr. Alvarado,” the ruling states.

According to the final ruling, Pineda admitted that he went to the track regularly, “but not to 'program train' (i.e. not to provide instructions to Mr. Naranjo or Alvarado on how to train his former horses), but rather only to pass the time.”

Aside from Bella Renella, the other six Pineda trainees who tested positive for Diisopropylamine were Flatterwithjewels, Big Splash, Chollima, Catbernay, Keep Your Coil and Wegonahaveagoodtime.

These trainees all won the respective races for which they subsequently tested positive, except Flatterwithjewels, who finished second at Santa Anita on June 9 last year.

Holtz fined Pineda $180,000 and ordered him to pay $15,000 towards HIWU's share of the arbitration costs of the proceedings. His 15-year suspension began Mar. 12.

Pineda has worked in the racing industry as a groom, exercise rider, pony rider, assistant trainer, and trainer for most of his life, the ruling states. According to Equibase, Pineda has been training since 2019, winning 49 races from 333 runners.

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The Week in Review: Takeaways from Justify-Scopolamine Verdict, and Other Thoughts

The long-running battle to decide whether or not Justify (Scat Daddy) should have been disqualified from his win in the 2018 GI Santa Anita Derby seems to have come to a conclusion last week when the team representing Mick Ruis, the owner and trainer of runner-up Bolt d'Oro (Medaglia d'Oro), obtained an order from Los Angeles County Superior Court Judge Mitchell L. Beckloff, directing the California Horse Racing Board Stewards to set aside their Dec. 9, 2020 decision and issue a new ruling disqualifying Justify from the 2018 Santa Anita Derby. With the ruling, Bolt d'Oro has been declared the winner.

At issue was a report in the New York Times that revealed that Justify had tested positive for the substance scopolamine in the Santa Anita Derby. At the time, scopolamine was on a list of substances that, when found in a horses's system, required that the horse be disqualified. According to reports and Ruis's lawyer, the CHRB acted on recommendations from then-executive director Rick Baedeker and equine medical director Dr. Rick Arthur. It was their call that Justify should not be disqualified because the positive test was the result of contamination linked to jimson weed.

Had the New York Times not broken the story some 17 months after the Santa Anita Derby, probably, no one would have ever known that the horse had tested positive. Once the story was brought to light, Ruis went to work and hired attorney Darrell Vienna. Ruis stood to make $400,000, the difference between first and second-place money in the $1-million Santa Anita Derby.

There are, however, a few remaining questions:

1) Is this the final word or may there be still more appeals and fights in the courts?

“There is the potential for appeal,” Vienna said. “My understanding of the judge's order is that the stewards must now issue an order to disqualify Justify. There's the potential that the stewards' ruling can't be appealed. That's kind of confusing because they're under the order of the court. Now, is there going to be an appeal to the judgment of the Superior Court judge. They could appeal to the stewards, the court, one or the other or both. Hopefully, there will be no more appeals and we can just move on.”

2) All of the qualifying points for the Kentucky Derby that Justify picked up came from the Santa Anita Derby. Had the California stewards disqualified him from that race and did so in a timely manner, he would not have been eligible to run in the Kentucky Derby and obviously wouldn't have won the Triple Crown. Do the owners of the horses who finished behind Justify in the Triple Crown races have a case and could, say, Good Magic (Curlin) eventually be declared the winner of the 2018 Derby?

“I don't think so,” Vienna said. “I am aware of a case in California in which there was the appeal of a winner of a race who had subsequently been disqualified from a qualifying race that got him into the race he won. In that case, the California courts held that the horse's eligibility was determined at time of nomination and participation. Under those circumstances, I don't believe there will be any change in the order of the Kentucky Derby or the other Triple Crown races.”

A spokesperson for Churchill Downs told Horseracing Nation that the track has no plans to alter the result of the 2018 Derby.

3) How did this ever become the mess that it did? And why didn't the CHRB follow its own rules?

Vienna maintains that if the California Horse Racing Board followed it own rules the case would have been cut and dried and dealt with promptly. He maintains that the rules were simple and not open to interpretation. He says that any horse that tested positive for a prohibited substance had to be disqualified.

“It's all very simple,” he said. “All they had to do was follow their own rules. There was never any real determination of what happened after the closed session. The closed session lacked finality and lacked all the indices of true decision making. There was no notice to the involved parties. There were no witnesses. All you had was Dr. Rick Arthur making the argument that scopolamine was the result of contamination. The problem is the rules in California at the time called for the disqualification of a horse who was positive for a prohibited substance that was in classes 2 through 3, which scopolamine was. They could have correctly absolved Mr. Baffert or any one else of any responsibility and still under law be required to disqualify the horse. That was the gist of our case. That's all we ever asked for. Our case was based solely on the fact that there was prohibited medication in that horse's system and, as a result of that, the rules called for the horse to be disqualified. I don't think it was very confusing at all.”

4) The process dragged on for some 4 1/2 years and if not for the New York Times report, it may never have been known that Justify tested plosive for the substance. Was the CHRB trying to sweep this under the rug?

“I think that is the case,” Vienna said. “In one executive session, they were provided with one side of the story and they wanted it to go away. There is a process in California law that provides for dismissal of a complaint, but if you look at the history of the statute in California it really applies to charges against a trainer and not the dismissal of a disqualification. That would conflict with another statute in California that says that no horse can benefit if they are carrying a degree of a substance in his system.

“Mick, like all of us is worn out, but he is pleased. This happened in 2018 and no one knew anything about it until 2019. That's a tremendously long journey for something. It could have been settled right away if horse racing board simply decided to follow their owns rules.”

Can Full-Brothers Win the Derby Back to Back?

With his win in the GII Remsen S., Dornoch (Good Magic) is on his way to the GI Kentucky Derby, where will try to pull off something that has never been done. He is a full-bother to GI 2023 Kentucky Derby winner Mage and siblings, either full-brothers or half-brothers, have never teamed up to win the Derby.

To show just how difficult that feat is, take Secretariat. His dam, Somethingroyal, produced four foals who made it to the races after Secretariat. They combined to win three races with total earnings of $38,241.

There have been a couple of dams who produced more than one win in a Triple Crown races. Thanks to research done by Randy Moss of NBC Sports, we know that the dam Leisure produced two Preakness winners in Royal Tourist (1908) and Holiday (1914). Better Than Honour was the dam of 2006 GI Belmont S. winner Jazil (Seeking the Gold) and 2007 winner Rags to Riches (A.P. Indy).

As for Dornoch, a lot will have to go right for him to win the 2024 Derby, but at this point in the game, he's far ahead of where Mage was at the same point. The Remsen was Dornoch's fourth career start and with the Remsen, he has added a graded stakes win to his record. Mage didn't start until Jan. 28 of this 3-year-old year and had not won a stakes race coming into the Kentucky Derby.

Noble Indy Makes It Home

Remember the story of Noble Indy (Take Charge Indy), the winner of the 2018 GII Louisiana Derby? He never ran back to that race and wound up being sent to Puerto Rico, where racing can often lead to the worst possible outcomes. Well, Fred Hart, who owned the dam of Noble Indy, Noble Maz (Storm Boot) was determined to bring him back home. Working together with Caribbean Thoroughbred Aftercare Inc., he has made that happen and Noble Indy landed at Old Friends last week. It's worth noting that Mike Repole and WinStar Farms, who were two of his owners during his prime racing days, foot the costs required to transport the horse back to the U.S. It's good to see owners accept the responsibilities that come with providing a good life for their horses after their careers are over.

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Hong Kong Harry Disqualified from Second Place in GI Turf Classic

Hong Kong Harry (Ire) (Es Que Love {Ire}), who crossed the wire second in the GI Old Forester Bourbon Turf Classic S. at Churchill Downs on Kentucky Derby Day was officially disqualified by the Churchill Downs stewards in an Aug. 26 ruling. The ruling came after the post-race urine sample and a subsequent split sample tested positive for the substance mofebutazone.

In addition, trainer Phil D'Amato was fined $1,000 and owners Scott Anasstasi, Jimmy Ukegawa and Tony Valazazz had to forfeit $194,000 in purse earnings. D'Amato and the owners waived their right to a formal hearing.

The Blood-Horse was the first to report the story.

Mofebutazone is a drug used for joint and muscular pain, but is not approved by the Federal Drug Administration for use in any species. Because it is not FDA approved, it is considered a banned substance under the Horse Racing Safety and Integrity Act (HISA). However, HISA's Anti-Doping and Medication Control Program did not go into effect until May 22. Had HISA rules been in place, D'Amato could have been charged with using a banned substance, which can result in a suspension of up two years and a $25,000 fine.

At deadline for this story, D'Amato's attorney Darrell Vienna had not returned a phone call from the TDN. He told the Blood-Horse, “We presented some evidence and it was reviewed by the stewards,” Vienna said. “Based upon the specific facts and circumstances in the case, the stewards reached what in my opinion was a fair and appropriate decision. What we're talking about is a substance that is essentially very weak (phenylbutazone). The substance, to my client's knowledge, he neither administered nor caused it to be administered. It was basically of unknown origin.”

This was the third disqualification from a race run during Kentucky Derby week due to a drug positive. In 2020, Gamine (Into Mischief) was disqualified after crossing the wire third in the GI Kentucky Oaks after testing positive for betamethasone for trainer Bob Baffert. The following year, the Baffert-trained Medina Spirit (Protonico) also tested positive for betamethasone after crossing the wire first in the GI Kentucky Derby. Owner Amr Zedan is still contesting Medina Spirit's disqualification in court.

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