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The Friday Show Presented By Monmouth Park: Lawyering Up

Attorney Bob Heleringer authored the book, Equine Regulatory Law, so there may be no one better to help us understand the legal questions surrounding the potential drug disqualification of this year's Kentucky Derby winner, Medina Spirit, and the two-year suspension of trainer Bob Baffert handed down on Wednesday by Churchill Downs.

What legal standing does Churchill Downs have to banish Baffert, since it is not a regulatory agency? What are the Hall of Fame trainer's options and how have the courts ruled on similar actions by track owners? What happens next with the Kentucky Horse Racing Commission, now that a test of the split sample from Medina Spirit confirmed the initial finding of the corticosteroid betamethasone in a post-race sample?

eleringer – a native of Louisville who in addition to his law practice served 11 terms in the Kentucky House of Representatives – joins publisher Ray Paulick and editor-in-chief Natalie Voss in this week's edition of the Friday Show to answer those questions and more.

He also offers some historical perspective on a previous case that led to the drug disqualification of Dancer's Image from his 1968 Kentucky Derby victory.

Watch this week's show, presented by Monmouth Park, below:

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Split Sample Confirms Betamethasone Positive In Kentucky Derby Winner Medina Spirit

The New York Times reported Wednesday morning that a split sample from Bob Baffert-trained Medina Spirit, who crossed the wire first in this year's Kentucky Derby, has confirmed the presence of betamethasone. A statement from Baffert's lawyer, attorney Craig Robertson, said the confirmed concentration was 25 pg/ml.

One week after this year's Derby, Baffert told media that he had been informed initial testing on post-race samples from Medina Spirit had detected the corticosteroid, which is not permitted for use within 14 days of a race in Kentucky. At the time, split sample testing had not yet been completed to confirm the finding.

Attorney Clark Brewster, who represents Medina Spirit owner Amr Zedan, revealed that the University of California-Davis performed the split sample test, which was aimed at confirming or denying the original finding of Industrial Laboratories.

Learn more about split sample testing in this May 21 feature.

Brewster told writer Joe Drape that UC-Davis did not do any further analysis on the sample to see whether it contained other substances that could give clues as to the origins of the betamethasone. (This type of additional analysis is not typically part of a split sample test.) Brewster will request further analysis be done on the post-race samples by a different laboratory.

Robertson released the following statement, which indicated DNA testing would also be done on the sample:

“In response to the inquiries, this will acknowledge that the Medina Spirit split sample confirmed the finding of betamethasone at 25 picograms. There is other testing that is being conducted, including DNA testing. We expect this additional testing to confirm that the presence of the betamethasone was from the topical ointment Otomax and not an injection. At the end of the day, we anticipate this case to be about the treatment of Medina Spirit's skin rash with Otomax. We will have nothing further to say until the additional testing is complete.”

Baffert initially told media he did not know why the horse had betamethasone in its system, and cast suspicion that he was a victim of some kind of tampering or sabotage. Two days later, he announced that Medina Spirit had been treated with a topical cream that contained betamethasone while treating a skin rash on the horse's hindquarters.

Betamethasone is a corticosteroid which is often used therapeutically to assist with reducing inflammation in equine joints, although it is also present in some topical applications like Otomax. Kentucky changed its regulations governing corticosteroid joint injections last August, pushing out the pre-race administration time to 14 days pre-race and removing the drug threshold from its code, meaning no level of the drug is acceptable in a post-race finding. (The commission said at the time that testing could not detect administrations farther than 14 days out.)

In the wake of the Santa Anita breakdowns, Kentucky was one of several states that began requiring private veterinarians to examine horses several days pre-race in addition to the traditional pre-race examination from commission veterinarians. Commission staff had expressed concern that additional pre-race veterinary exams taking place farther ahead of race time could be influenced by the anti-inflammatory effects of corticosteroids and non-steroidal anti-inflammatories.

Baffert has had multiple high-profile therapeutic drug positives in the past year and a half, including one in Kentucky for betamethasone after the rule change when Gamine tested positive following the Kentucky Oaks.

Heleringer: Will The Absolute Insurer Rule Save Racing … Again?

“Doped” horses. “Hopped” horses. “Drugged” horses. Cheating. Indictments. Scandals. Let the bettor beware.

Those terms don't describe the current conditions in horse racing, but the overarching problems that dogged the sport nearly 90 years ago when racing had basically no reliable security system in place to protect the betting public. As is the case today, horse racing in the United States had no national governing body that set uniform standards and rules to police the sport. (Thankfully, this will finally change on July 1, 2022, with the federally mandated Horseracing Integrity and Safety Authority.)

Until his death in 1924, August Belmont Jr. could unofficially govern the game by the sheer force of his name and prestige — he had created the concept of a racing commission in 1895 and then persuaded a New York legislature dominated by Republicans to enact it into law. (Belmont was a staunch Democrat.) But at his passing, there still was no effective means – no proven scientific process – to combat racing's biggest challenge: how to detect and thwart the cheaters, the unscrupulous horsemen who drugged horses to reap huge “scores” at the betting windows.

Joseph Widener, in an attempt to both reform a sport he loved and, less altruistically, protect the sizeable investment he was making in the total transformation of Hialeah Park in south Florida, dispatched Marshall Cassidy in 1934 to France to study the post-race drug-testing system of a horse's blood/saliva the French racing authorities had conceived to police their own game. Cassidy brought the system back to the United States and installed it for Widener at Hialeah (overcoming a brief but bitter strike of horsemen in the process).

That single act, with stout punishment for offenders, copied nationally by a burgeoning racing industry that couldn't build racetracks fast enough, may have single-handedly saved the sport of horse racing from itself. The fans that fueled this explosive growth could now push their money through the windows with some degree of confidence they were betting on an honestly-run sport.

The simple, uncomplicated standard that governed was called the “absolute insurer rule.” The person doing the “absolute” insuring was a horse's trainer of record. It didn't matter if that trainer was (theoretically) on a three-year shuttle to Mars, if he ran a horse during that time anywhere in America and was the listed trainer of record; he was totally and exclusively liable for the consequences of any failed post-race drug specimen – not the groom, the hotwalker, a veterinarian, or even the familiar “disgruntled former employee.” Confirmed “positives” meant, automatically, the DQ of the winner, loss of purse by the owner, and a fine/suspension or both for the trainer. But how would the reviewing courts interpret such a unique guilty-until-proven-innocent standard? The answers were not long in coming.

In a landmark case with a number of similarities to the current Bob Baffert imbroglio, in late 1945, prominent trainer Tom Smith, the man who had trained the immortal Seabiscuit, was suspended for an entire year by New York's racing board after one of his grooms had been observed in the paddock at Jamaica spraying a “substance,” later confirmed as ephedrine, into the nostrils of Smith's horse. (Smith wasn't even at the racetrack that day.) In a battle of experts sure to be reprised when the Baffert hearing begins, Smith's expert testified the ephedrine's effect on the horse was “negligible” while New York's chemist believed the drug “might [key word] affect a horse … by increasing its respiratory capacity.” The racing board's harsh penalty was upheld by New York's appellate court. (Smith was even ordered to pay the board's court costs of $50.)

But, at least initially, no other state was inclined to follow New York's lead. Perhaps as a consequence of the strong (but widely unpopular) sanction meted out to Tom Smith, Maryland's highest court – barely two months after the Smith decision was handed down – affirmed a lower court's decision declaring Maryland's own absolute insurer rule unconstitutional. Trainer J. Dallett “Dolly” Byers had a winning steeplechase horse at Pimlico test positive for “benzedrine,” a stimulant. Echoing Mr. Baffert's initial defense after Medina Spirit's positive for betamethasone, Mr. Byers testified at his hearing that he was totally innocent and had no idea how the prohibited drug got into his horse's system. Byers' defense, complete with character witnesses, was found unavailing and he received the same one-year suspension that Tom Smith had gotten. A reviewing trial court threw out the suspension and the law/regulation on which it was based, calling the rule's “conclusive presumption of guilt” a “great vice.” A unanimous Maryland court of appeals affirmed and went even further: “This irrebuttable presumption [of guilt under an absolute rule] destroyed the right of [Byers] to offer evidence to establish his innocence. If this is 'just,' then the term 'unjust' has no meaning.”

Florida's Supreme Court weighed in the following year (1947), striking down that state's own absolute standard in the Baldwin case, holding for the first time anywhere that a horseman's license was “a valuable property right” that could not be suspended without due process of law, i.e., without some finding of guilt based on evidence not a mere violation of an automatic rule.

But just when it looked like the absolute insurer rule was going to be ruled off, California's Supreme Court upheld the beleaguered standard in 1948. In a 5-2 decision that the two dissenting justices called “un-American,” the majority reinstated a six-month suspension of trainer W.L. Sandstrom's license after his winning horse at Del Mar, Cover Up, tested positive for a “caffeine-type alkaloid.” Sandstrom's sanction, said the high court, was not “unreasonable, arbitrary, or capricious” since the absolute rule upon which it was based “was designed to afford the wagering public a maximum of protection against race horses being stimulated or depressed” and was a “reasonable exercise of California's 'police powers.'”

Over time, the Sandstrom decision became the consensus view of nearly every court that considered constitutional challenges to racing's single most important rule. (Both the Byers and Baldwin cases were eventually overruled.)

With the hiring of Spencer J. Drayton in 1946, wooed away from the upper leadership of the FBI, and his national efforts to “clean up racing” with the Thoroughbred Racing Protective Bureau (TRPB) that included the agency's aggressive enforcement of absolute insurer rules, horse racing became a major recognized sport in the United States, as honestly-run and incorruptible as humanly possible. The game enjoyed its “golden age” thereafter up through the 1970s.

The question must be asked, in the crucible of the serial Bob Baffert “medication” controversies, which supplanted the serial Rick Dutrow “medication” controversies, can horse racing survive in this country without a drug-testing system that is NOT based on the strict enforcement of an absolute insurer rule that the betting public can rely upon with the utmost confidence?

While every horseman's constitutional right to due process of law must be protected, at the same time, does the sport's leadership seriously believe that the wagering public (or their elected representatives) will tolerate a drug-enforcement apparatus that, far from the zero tolerance standard it adopted barely a dozen years ago (and has obviously been discarded), permits a chaotic system that allows excuses, explanations, and prevarications for drug positives that are only limited by a licensee's imagination? Exactly how is the public interest served if horsemen can plead, not just in mitigation, but as an affirmative defense, “environmental contamination,” transferred lidocaine patches, innocent applications of ointment, and wide-open-to-varying-interpretations how many picograms of a “therapeutic” (but nevertheless prohibited during races) medication “affects” a horse's performance during a race that lasts perhaps a minute and a half?

Now that the abandonment of the former “absolute” standard is on full display in the aftermath of a positive drug screen of the winner of the world-renowned Kentucky Derby, with the attendant incalculable damage to horse racing's “brand,” is it time once again to resume the strict application of an absolute insurer rule to save an industry that employs tens of thousands and is enjoyed by millions?

Bob Heleringer is a Louisville, Ky., attorney, former racing official and author of the legal textbook Equine Regulatory Law, the second edition of which will be released later this year by the University Press of Kentucky.)

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Hair Testing – What It’s Good For, What It’s Not Good For

After last weekend's revelation that Kentucky Derby winner Medina Spirit had tested positive for betamethasone post-race, trainer Bob Baffert outlined a few different methods for figuring out how the drug got into the horse's system, including hair testing the horse to look for the presence of the drug. On Tuesday, it seemed the need for investigative work was through, since Baffert admitted the horse had indeed been treated with a topical prescription that contained betamethasone.

Still, his suggestion raised questions about how hair testing can help in cases like that of Medina Spirit. Many have hoped hair testing would be the next great advance in racing's drug testing program, able to detect what blood tests cannot.

Hold your horses, experts say.

Using hair to detect the presence of drugs works because a stand of hair contains melanin, which gives it color and which carries a slight negative ionic charge. That means that when drugs go through a horse's system, those with a slightly positive ionic charge bind to the melanin of the hair at the base where it's growing out from the horse's skin. Laboratories can find the resulting band of the drug in question sitting crossways inside the hair shaft if they have a sample of the hair. Horses with black hair will bind drugs easily; those with less melanin in their hair, like grays and roans, do not retain drug remnants in that hair as readily.

Only the drugs with a slightly positive charge are going to bind to hair well enough to be detected. Dr. Rick Sams, equine drug testing expert and former lab director for HFL Sport Science, said this works well for certain types of drugs.

“Clenbuterol has a negative charge on it, it binds to melanin and it can be detected at a very low level because a lot of it binds to the hair,” said Sams. “Negatively-charged substances like flunixin, like phenylbutazone, are repelled by the negative charge on melanin and do not readily bind to the hair sample even though the blood concentration may be substantially higher than the concentration of substances like clenbuterol.”

Steroids – both anabolics and corticosteroids – are neutral, so they're not attracted to hair. Anabolic steroids are excreted through skin glands and may appear on the outside, rather than the inside, of the hair shaft, but that makes it difficult to say whether a horse was exposed to the steroid externally or internally.

A hair test would probably not detect a corticosteroid like betamethasone in a horse, because it wouldn't bind well to the melanin. If hair testing had been done on Medina Spirit, it wouldn't show the drug but that would be because it couldn't, not because it had never been given.

Then there's the question of gathering that hair sample.

“There are lots of challenges with hair testing that would need to be addressed and standardized,” said Scollay. “For example, I'm terrible at pulling manes, just terrible. I have a hard time with one pull or even two pulls getting a sufficient sample. I'm pulling and pulling and pulling and I finally get what I need. There are some people who just use scissors. If you look at those samples, they're not necessarily even cuts. If you're at the laboratory, you don't know how much hair remained on the neck between the site of the cut and the hair follicle itself.”

Without the root of the hair, Scollay pointed out there's also no way to conduct DNA testing on a sample, should there ever be a question about whether the sample came from the horse in question – and of course, with the majority of Thoroughbreds being bays, the color of the hair isn't going to be much help.

Hair testing also doesn't provide particularly specific information about drug administration, and that's why it's most commonly used to find prohibited substances that are never supposed to be given to horses. Finding a little band of drug in a hair shaft tells the tester that the drug was administered, but not how much was given, how it was given, or exactly when. A three- to four-inch length of hair represents about six months of growth. Most often, laboratories could give a range of time when the drug exposure might have happened but it's usually a range of days or weeks, not hours. Some drugs, like clenbuterol, require multiple exposures of a drug before it will show up in hair. Labs can cut the hair into sections to try to narrow the timeframe a drug was given, but that method isn't always a good one.

“The problem is hair sometimes stops growing before it falls out,” said Sams. “The hair shafts grow at basically the same rate but some of them stop growing, so if you do a sample even in sections, you're going to see a distribution of the drug probably through multiple sections just due to the fact some of those hairs stopped growing. It's an imprecise science.”

A hair test is only useful if enough time has elapsed since the administration of the drug for the hair to grow long enough that it can be taken in a sample. Sams said that in research settings, hair has been sampled using a set of clippers and revealed drug administrations from one or two days before – but that in the field, there's no standardized way to take a sample, and it's unlikely a test barn will be able to successfully cut that close to the skin. Scollay said she wouldn't use a hair sample as a basis to confirm a drug administration more recently than two weeks to a month after administration.

Clenbuterol was recently banned in racing Quarter Horses, and as a result, the American Quarter Horse Association conducts hair testing on horses ahead of major stakes races. There have been cases where a hair test has been negative for clenbuterol but a post-race sample has been positive, resulting in sanctions. Ironically, some of those cases were overturned by courts on appeal because trainers successfully argued that the post-race positive must be a mistake due to the negative pre-race hair test. In reality, Scollay said, it's possible two different labs could use different methodologies on the same horse's hair and come up with different results, neither of which should invalidate a post-race test on blood or urine.

Because of these inconsistencies, both experts agree it will be some time before hair testing becomes the go-to in the United States – if it ever does.

“You have to decide what your purpose is with hair testing; it's not going to replace blood and urine testing. It's not going to do it,” she said. “It's a regulatory tool. It's part of your arsenal, but relying on it solely – unless you're dealing with a prohibited substance – you're going to have a challenging time.”

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