drugs in racing | Horse Racing Free Tips

Judge Denies Defendant Motions To Dismiss, Request For Recusal In Federal Drugs Case

Ever since March of last year, when more than two dozen trainers, veterinarians, and others were indicted for using or selling misbranded and adulterated drugs, racing fans everywhere have been asking – when is the next round of federal indictments coming? A May 14 status conference in the case provided no more clarity on whether or when a new indictment could be filed.

U.S. District Judge Mary Kay Vyskocil pressed prosecutors on the question Friday, since they – and The Jockey Club, which claims responsibility for part of the federal investigation – have talked about the possibility of a superseding indictment for months. The topic has come up in court before, since defense counsel argue they can't reasonably prepare a defense when they don't know if there are new twists coming for their clients. (A superseding indictment would replace an older indictment, and could include new charges for existing defendants, as well as the addition or removal of defendants.)

“It's certainly not our intention to announce a superseder next week or next month,” said Assistant U.S. Attorney Andrew Adams. “As we sit here today I am not able to say that we are certainly or even likely to add charges in this case. This is all speculation and it need not delay moving the case forward.”

“At some point the government needs to get real and stop speculating here,” replied Vyskocil. “This case is moving forward, and I'm certainly not going to hold anything up for the government.”

Vyskocil was asked by defense attorneys to stretch out the schedule outlining when motions and responses needed to be filed in the case, as they say they're still awaiting documentation on the wire taps used by the FBI. She declined to delay things further.

Previous discussions in the case suggested that the defendants may be split into three groups and tried in three separate trials, and Vyskocil hopes the first one can begin later this year, with the other two in early 2022.

Vyskocil also reacted to a letter motion from defense attorneys requesting she recuse herself from the case, expressing frustration and disgust over the motion, which she said contained “multiple plainly false statements.” Among other things, the defense had claimed Vyskocil could not be objective because she had previously had a financial interest in the outcome of four races, in which horses she co-bred ran against trainees of indicted trainers Jorge Navarro and Jason Servis. Vyskocil pointed out that she did not own the two horses making those four starts by the time they started their careers, and that none of those four starts could have resulted in breeder awards for her.

“All of the information upon which the defense relies has been publicly available since the case was assigned to me,” she said. “This meritless motion appears to be a calculated attempt to divert attention from the serious crimes with which the defendants have been accused and to obstruct and delay the orderly administration of the case. The motion is denied as frivolous, and obvious tactical gambit to delay the determination of the defendants' motion to dismiss.”

Vyskocil said she had been close to ruling on several defendants' motions to dismiss just before receiving notification they were about to ask her to recuse herself. At Friday's hearing, she denied those motions to dismiss.

Attorneys on both sides were given 30 days to confer about the proposed defendant groupings for trial and about the expert witness list each will call. Vyskocil anticipated the next status conference would be held in early September.

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National Media Reacts To Medina Spirit Scandal With Skepticism, Outrage

As the situation surrounding Medina Spirit's positive betamethasone test has evolved through the course of this week, racing and mainstream media have covered the story extensively. The revelation that the 2021 Kentucky Derby winner failed an initial post-race drug test has also garnered op/eds from industry and non-industry publications. Most of those headlines express little patience for trainer Bob Baffert's explanation of the drug's presence.

In the interest of understanding how racing and its issues are viewed in the broader, non-racing world, the Paulick Report staff has compiled a sampling of those opinion and analysis pieces here, along with observations therein that we found particularly interesting. We encourage you to click the underlined links to read the full op/eds.

The Kentucky Derby Deserves Better Than This Butt Rash Of A Mess, WDRB
Writer Eric Crawford mourns the reputation of the Run for the Roses, which he says will be tarnished in the future by what he calls Baffert's “clear negligence.” Crawford also points out that both Baffert and his veterinarian were required to sign a document as a condition of stabling acknowledging their intent to follow rules and regulations laid out by the Kentucky Horse Racing Commission, including the body's medication regulations.

No, Failed Derby Drug Test Is Not 'Cancel Culture.' But Racing Needs Culture Change, Lexington Herald-Leader
Columnist Linda Blackford, writing before Baffert's Tuesday statement attributing the betamethasone test to an anti-fungal ointment, took exception to Baffert's declaration on Fox News Monday that Churchill's immediate ban on his entries constituted “cancel culture.” Blackford also pointed out that the Baffert case demonstrates the need for the Horseracing Integrity and Safety Act (HISA), under which medication rules will be the same across the country, reducing the likelihood of therapeutic drug positives.

Bob Baffert's Leaking Credibility Reaches Saturation Point After Derby Drug Positive, Sports Illustrated
Pat Forde sees Baffert's history of drug positives — albeit, therapeutic positives — as eroding confidence in America's most recognizable trainer, particularly when his explanations for them seem designed to excuse them. Individually, Baffert's explanation for each positive seems plausible, but together they begin to sound hollow to Forde.

“Ultimately, this very much seems like the same sad song, different verse, when it comes to drug testing and sports,” he writes. “The denials are always vigorous. They are often fanciful. They are rarely compelling.”

Opinion: As Another Excuse Arises, Pimlico Won't Hold Bob Baffert Accountable For Medina Spirit's Positive Test, USA Today
Dan Wolken expresses frustration that Pimlico did not follow the lead of Churchill Downs and decline to allow Baffert entries until the scandal over the betamethasone overage is resolved. He points out that without Baffert's two runners — Medina Spirit and Concert Tour — this year's Preakness would have a historically weak field. If either horse wins, racing will be in an especially awkward position in the event Medina Spirit's Derby victory is eventually stripped. Wolken makes clear that he doesn't expert racing commissions to take significant action against the trainer even if that disqualification happens.

“True accountability, in the end, is going to have to come from within,” he wrote, pointing out that Spendthrift has removed horses from Baffert's care.

Baffert In Spotlight For Wrong Reasons Going Into Preakness, Associated Press via Seattle Times
While Baffert and his team couldn't get enough of the media Sunday and Monday, Associated Press reporter Stephen Whyno writes that assistant Jimmy Barnes has refused to answer questions about the ongoing Medina Spirit debacle. And while the atmosphere at Pimlico is different this year, Whyno said one fixture, trainer D. Wayne Lukas, is still lingering outside the stakes barn and giving his opinion to whoever wants to hear it.

Lukas, for his part, believes the commission should raise the threshold for therapeutic substances “to what's realistic” and said he wishes he was still on the Kentucky commission to impact the outcome of any hearing Baffert may go through.

“I would absolutely today tell my colleagues that we need to just dismiss this, throw it out, put the Derby winner back on the throne and move on,” he said. “Obviously (21) picograms or whatever that horse had had no effect on the race or his performance. And every vet and every scientist and every lab will tell you that. You almost think the lab should probably have poured it down the sink in the first place.”

Sullivan: Bob Baffert Needs New Strategy After Betamethasone Claims Backfire, Louisville Courier-Journal
Tim Sullivan, who has been covering the scandal since the beginning, anticipates that Baffert's legal strategy will be to attack the credibility of the regulation guiding betamethasone withdrawal. Unfortunately for him, Sullivan believes Baffert's intent behind using an anti-fungal cream containing betamethasone isn't relevant based on how the rules are written. He points out that the phenylbutazone rule that resulted in the disqualification of Dancer's Image in 1968 wasn't changed until 1974, and in the meantime the Kentucky Supreme Court validated the stewards' decision to disqualify Dancer's Image under the rules in place when the horse ran.

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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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Irwin: Medina Spirit Positive Test A Shot Heard ‘Round The World

What's the deal with Bob Baffert and his rash of positives over the past year or so, during which time he has run afoul of the rules on five occasions?

Is Bob just unlucky? Is he running a sloppy shop? Are his vets dropping the ball on his behalf? Are the racetracks, racing regulators or racing associations somehow out to get him? Is he a victim of some sort of foul play?

Or, as the subject himself said after he announced over the weekend that his Kentucky Derby winner has tested positive for betamethasone (now where have we heard the name of that drug before, hmmm?), “…there's definitely something wrong. Why is it happening to me?”

Although lacking first-hand knowledge, experienced horsemen and vets with whom I have spoken ever since the betamethasone overage was revealed, to a man believe that the positive finding is a result of Baffert's Derby winner being injected in a joint (ankle or hock) too close to Kentucky Derby Day.

The vets' conjecture is that Baffert took a chance that the unpredictable and unreliable nature of the drug used would not rear its ugly head before the race and hopefully go undetected in the post-race analysis. They say that even if the withdrawal time is closely adhered to and even if a few extra days are tacked on, betamethasone reacts differently in every horse based on the make-up of its bodily systems. In other words, the recommended withdrawal times are best guesses and not carved in stone.

So, these vets believe, Baffert may have just taken a shot.

Or Baffert, in his arrogance, may have figured that even if a trace showed up it just might be ignored, because after all it was the Derby, and popular myth says that anything goes in the Derby.

Arrogance in the case of Baffert is completely understandable. Why wouldn't he be arrogant? He keeps getting in trouble and he keeps escaping unscathed. When this happens time after time after time after time, the escapee tends to become a bit unwary of possible pitfalls that might stand in his way. He becomes emboldened.

Within days after Baffert had basically skated from his two lidocaine positives in Arkansas, an emboldened Baffert (opined the experts) may have had betamethasone injected into a joint of Medina Spirit.

If Baffert, or Baffert at his direction to his vet, did in fact order the injection, he took a risk not just for himself and the horse's owner, but this time for the well being of the entire Thoroughbred industry. Now that would be total arrogance, because today there is not a major news outlet that did not cover Baffert's Derby positive in the shot heard 'round the world.

The arrogance required for such an act can come from one who feels that the rules do not apply to him.

Seemingly forever in Thoroughbred racing the phrase “nobody is bigger than the game” has been axiomatic. Well, I humbly submit to the readers that Baffert not only thinks he is bigger than the game, the ruling in Arkansas more of less proved it to be true.

Now, all of a sudden, seemingly out of the blue, Churchill Downs racetrack—an outfit known forever as an entity that would do and say anything to protect the sanctity and history of The Derby — has stepped up and closed its entry box to Bob Baffert until the current mess can be straightened out.

As excited as I am about the impending seating of the board and standing committees of the Horseracing Integrity and Safety Authority in advance of getting it up and running next summer, this advent of Churchill Downs taking responsibility in the aftermath of the Derby positive is just as riveting and exciting. I for one look forward to following the Baffert positive in the days, weeks, months and, likely, years to come, as Baffert will no doubt once again fail to take responsibility for his own actions and place the entire industry in peril.

Barry Irwin is the founder and CEO of Team Valor International

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