Master of Excuses or Victim of Vendetta? Caustic Baffert/NYRA Hearing Closes

Bob Baffert's five-day hearing on “detrimental conduct” charges levied by the New York Racing Association (NYRA) closed Friday with NYRA's attorney arguing that the Hall-of-Fame trainer has trashed the sport with such an unprecedented litany of medication violations that NYRA needs to be allowed to punish him, while Baffert's lawyer countered that the real extraordinary aspect of the case involves vendetta-based accusations that could result in draconian sanctions NYRA has never before attempted to impose upon any other trainer.

“Bob Baffert is not a cheater,” the trainer's attorney, W. Craig Robertson III, told hearing officer O. Peter Sherwood during the Jan. 28 proceeding. “NYRA used Bob Baffert when it was convenient for them…. Now, they want to kick him out, kick him to the curb…. Your honor, Mr. Baffert's career is in your hands. And that is not an exaggeration.”

NYRA's lawyer, Hank Greenberg, put his closing argument this way: “The statement of charges in this case charges [Baffert] with three violations: That he is a detriment to the sport of Thoroughbred racing, that he is a detriment to the safety of horses and jockeys, and that he is a detriment to NYRA and its business…. We respectfully submit that we have established our case, we have met our burden, and we respectfully urge you to recommend a lengthy suspension.”

The next step in the process is for the hearing officer to write up a report containing findings of fact, conclusions, and a recommended disposition. That report–there is no timetable for when it's due, according to rules that were created last year by NYRA–will then go to both parties and an adjudicatory panel appointed by NYRA's president and chief executive officer, David O'Rourke.

Patrick McKenna, NYRA's vice president of communications, told TDN via email Friday that members of that panel will be selected in the coming days. Asked who is eligible to be selected for it, he wrote, “Although there are no restrictions or required qualifications, individuals who possess an understanding of horse racing or its regulatory framework will be preferred.”

Within a week of the report's issuance, either party may submit written exceptions to it, and then the panel will have the discretion to adopt, modify or reject any or all of the hearing officer's report or recommended disposition. The panel will then issue a final decision that will include a statement setting forth the facts that form the basis of their decision, which shall take effect immediately and is not appealable to NYRA itself (although Baffert could once again bring the matter back before a court of law).

Although Baffert's legal team has previously protested the alleged “fait accompli” fairness of NYRA coming up with the rules for this hearing, its process, the charges, and the appointment of both the hearing officer and the deciding panel, a federal judge ruled last week that NYRA has a right to move ahead in that manner.

Because NYRA has the burden of proof, its legal team was permitted to start Friday's proceedings by offering both the first closing argument and then getting a rebuttal after Baffert's counsel had its turn. This last-at-bat arrangement that gave NYRA two turns to speak was unsuccessfully protested by Robertson as being “inappropriate” in the setting of a hearing, but Sherwood permitted it, presumably because that's how trials in court usually work.

Greenberg led off by accentuating how testimony this week had revealed that no witnesses could ever recall any other Thoroughbred trainer besides Baffert racking up six equine medication positives within a 14-month period, three of which occurred in Grade I stakes (the 2021 Kentucky Derby, the 2020 Kentucky Oaks, and the 2020 Arkansas Derby).

“What is presented to you by this case with these facts, your honor, are a rampage of positive drug tests and violations in frequency in number that has no precedent in the modern history of the sport,” Greenberg argued. “As a consequence of those violations, it is also undisputed and undisputable that there was an avalanche of extraordinary, negative, critical coverage of this great sport…. The consequences of that, the damage that it did to the reputation of the sport, is incalculable.”

Greenberg said testimony proved how NYRA goes to great lengths on a daily basis to make sure horses are fit and safe to race. He described the need to conduct pari-mutuel wagering anchored by integrity and brand equity as being the “lifeblood of existence for NYRA.”

Even if Baffert's recent history of equine drug violations occurred in other jurisdictions, it still “hurts NYRA” because of the “saga that was consuming the sport over that 14-month period as each violation came and each excuse was given,” Greenberg said.

“That harm, that fallout, was caused by one person–this person, your honor,” Greenberg said, referencing Baffert sitting off to the side in the Manhattan conference room, wearing a black sweater and black pandemic mask, his eyes and posture suggesting weariness at the end of a long week.

When Robertson had his turn at the podium, he underscored that NYRA was essentially attempting to re-litigate violations that had already been adjudicated by other regulatory bodies (none of which resulted in suspensions for Baffert), which he said is a violation of the legal principle res judicata.

“Your honor, when this matter started, I told you that NYRA was going to throw at you a bunch of inuendo, speculation and distortion. And that is exactly what they have done throughout this proceeding…” Robertson said. “At the beginning of this case, I said that vindictiveness, the bias, the unfairness of NYRA has no bounds. I should add to that the hypocrisy of NYRA has no bounds.”

By way of example, Robertson pointed out that NYRA never attempted to initiate any form of exclusion against two other high-profile trainers who had much more serious penalties handed down by New York regulators within the past decade.

One was Rick Dutrow, Jr., who in 2011 was suspended 10 years and fined $50,000 by the predecessor agency of the New York State Gaming Commission (NYSGC) after one of his Aqueduct winners tested positive for an opioid analgesic and syringes containing a painkiller and a sedative were found in Dutrow's stable office. Robertson said Dutrow was allowed to start 516 horses at NYRA tracks while he unsuccessfully tried to appeal that ruling, and NYRA never once independently tried to banish him.

The other is Linda Rice, who in 2021 was given a three-year license revocation and $50,000 fine for “improper and corrupt conduct” by the NYSGC for receiving race-entry information about rival horses from NYRA employees. She is currently still actively racing at NYRA tracks after obtaining a court injunction that allows her to participate while she appeals the NYSGC ruling, but, like Dutrow, NYRA never initiated its own separate exclusion against her.

“So when Mr. Greenberg, with all due respect, says there's no evidence of a vendetta, why absolutely there is. It's the first time they've ever done this to somebody,” Robertson said.

Greenberg, in his rebuttal, said Baffert shouldn't be one to complain about not getting his figurative day in court.

“There isn't a person in this country that gets more [due] process than Bob Baffert, from more courts and more tribunals. He's maxxing out on due process. I don't know that anyone's ever seen anything quite like the amount of process he gets by courts, administrative agencies, and [other ruling bodies],” Greenberg said.

Robertson told the hearing officer that it was significant how NYRA, during this past week of hearings, didn't produce a single witness to substantiate or even read through its own statement of charges. NYRA's testimony had instead largely relied upon various specialists and experts who tried to paint a wide-ranging picture of how NYRA was accountable to many state entities and how the magnitude of Baffert's alleged harms put its franchise at risk.

“What's worse, your honor, is that the individuals at NYRA who created these trumped-up charges didn't have the guts to come here and testify about them,” Robertson said. “Where are the NYRA board members? Where was NYRA's CEO?  Where [were] any NYRA executives to testify about this? If this matter is of such great importance to them and their business operations, where are those individuals?…They at least ought to have shown up and looked him in the eye and explained why they're taking their actions against him…

“On the other hand, Mr. Baffert showed up and stood up…” Robertson said, alluding to Baffert's half-day of testimony Jan. 27. “There wasn't a single question that he didn't answer in a genuine manner.”

In his rebuttal, Greenberg blasted Robertson for even bringing that up. He pointed out that in comparable settings in a courtroom, it is not customary for prosecutors to introduce then go through an accusatory document like a statement of charges paragraph by paragraph. Plus, he added, it wouldn't have been appropriate to call NYRA's CEO as a witness, because he's the same person who will be appointing the adjudicatory panel.

“The most Derbies [Baffert] has won is the 'Excuse Derby,'” Greenberg said. “Maybe it's [a groom] urinating in [a stall] or back patches on assistant trainers or drugs being planted and rewards being offered, or it's the veterinarian's fault. Again and again and again, excuses.”

Most meritless of all of the claims made during the heated week of hearings, Greenberg said, is the notion presented by Baffert's legal team that the trainer just wants to be treated like anyone else.

“No he doesn't…not even close….. Mr. Baffert does not want to be treated like everyone else,” Greenberg said, implying that Baffert wants–and gets–special treatment.

Robertson scoffed at that assertion.

“So yes, when I say I want Mr. Baffert to be treated like anybody else, absolutely,” Robertson said. “Because they've singled him out…and in the face of [other] individuals found guilty of serious, serious violations, NYRA says, 'Come on in, you're welcome at our tracks–unless your name is Bob Baffert.'”

Friday's closing arguments marked exactly 257 days since NYRA initially tried to rule off Baffert back on May 17, 2021, in the wake of now-deceased Medina Spirit's Derby drug positive for betamethasone.

Greenberg, near the end of the proceeding, answered his own rhetorical question about what NYRA would have expected with respect to Baffert's initial disclosure about that test result, alluding to the series of press conferences and media appearances in which Baffert at first denied treating Medina Spirit with betamethasone, then later claimed the positive was the result of applying a skin ointment he didn't know contained that drug.

“What would we [have expected from Baffert]?” Greenberg said. “That he honor the profession that has been so good to him. That he comport himself with dignity. That if he made a mistake, it's not a shameful thing to say, 'I'm sorry. I regret it. I will do better in the future.' That is all we would expect. That's all we could expect. And what we saw was the exact opposite.”

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NYRA’s Pre-Suspension Hearing Against Bob Baffert To Begin Monday; Judge Dismisses Trainer’s Lawsuit

Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York officially dismissed a lawsuit brought by Hall of Fame trainer Bob Baffert on Friday, reports the Daily Racing Form, allowing the New York Racing Association's pre-suspension hearing to begin as scheduled on Monday, Jan. 24.

Amon's ruling indicated that the pre-suspension hearing fulfills Baffert's right to due process.

“NYRA is gratified by Judge Amon's decision to dismiss Mr. Baffert's suit in its entirety,” Patrick McKenna, a spokesman for NYRA, told DRF. “As we have said throughout this process, NYRA's focus in this matter is protecting the integrity of the sport of Thoroughbred racing in New York.”

Amon's ruling also states that Baffert will be able to pursue a separate judicial review of a suspension after the hearing is completed.

“Whether NYRA is a biased agency and whether suspension is a 'fait accompli' will certainly be clearer after the hearing has run its course and NYRA has decided to suspend Baffert,” Amon wrote.

NYRA had notified Baffert ahead of the Belmont Stakes that it was suspending his ability to enter horses in races or have stall space at its racetracks due to his recent history of medication violations (five over a one-year period), the conflicting statements he provided to media around the Medina Spirit scandal, and Churchill Downs' suspension of the trainer.

Amon determined that NYRA's suspension of Baffert should not have taken place without some sort of hearing allowing him to address the organization's accusations against him. Although NYRA was asserting its private property rights in the case, Amon said the organization is closely entwined enough with the state that its suspension of Baffert constituted a state action, thereby requiring due process.

NYRA issued a statement of charges against Baffert and fellow trainer Marcus Vitali on Sept. 10.

The upcoming hearing process, laid out by NYRA in its official statement on Sept. 10, is not expected to be brief. O. Peter Sherwood, the retired New York State Supreme Court justice, will serve as a NYRA-appointed hearing officer. The hearing may last several days, and Sherwood is not required to issue his post-hearing report with recommendations within a specific period of time.

Once that report has been issued, a panel will review it and issue a final decision within 10 days

Read more at the Daily Racing Form.

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Baffert Amends Lawsuit to Attack NYRA’s Alleged ‘Sham’ Hearing

Bob Baffert filed an amended complaint on Friday in his ongoing constitutional rights court battle against the New York Racing Association (NYRA). The new sections of the revised lawsuit contain no new bombshell allegations, and largely mirror points previously voiced by his legal team regarding what they have described as a “sham” hearing process initiated by NYRA to determine if Baffert will be excluded from New York's premier tracks.

“The Sept. 10, 2021, 'Statement of Charges' which NYRA has asserted against Baffert are unquestionably vague and entirely subjective,” the amended complaint states. “The 'Statement of Charges' alleges that Baffert has engaged in: 1) 'conduct detrimental to the best interest of racing'; 2) 'conduct detrimental to the health and safety of horses and jockeys'; and 3) 'conduct detrimental to NYRA business operations.'”

The Nov. 19 revision filed in United States District Court (Eastern District of New York) goes on to state that “there are no articulable standards for establishing whether Baffert's conduct in other jurisdictions was detrimental.”

Thus, the amended complaint further states, “Under this vague framework, NYRA seeks to ignore [legal matters that have already been decided] in other jurisdictions and impose its own arbitrary punishment.”

The Hall of Fame trainer's initial version of this lawsuit dates back to June 14. It alleged NYRA violated his constitutional right to due process by trying to bar him over his history of equine medication violations.

NYRA had banished the seven-time GI Kentucky Derby-winning trainer back on May 17 after the Baffert-trained Medina Spirit (Protonico) tested positive for a betamethasone overage while winning the May 1 Run for the Roses.

That case has still not resulted in any Kentucky ruling against Baffert. In a separate testing endeavor, Baffert is trying to prove that Medina Spirit's betamethasone finding was the result of the application of an anti-fungal ointment and not an injection of that drug. The Blood-Horse reported Thursday that long-delayed testing of a urine specimen won't even begin until next week.

But NYRA's desire to rule off Baffert goes beyond Medina Spirit's still-in-limbo Derby penalization status. In the 12 months prior to Medina Spirit's positive, four other Baffert trainees also tested positive for medication overages, two of them in Grade I stakes.

On July 14 the court granted Baffert a preliminary injunction that allows him to race at New York's premier tracks until his lawsuit gets adjudicated in full.

But judge Carol Bagley Amon also wrote in that ruling that “Baffert should have been given notice of all of the reasons that NYRA intended to suspend him….[The] benefits of providing notice and a pre-suspension hearing would likely have been substantial.”

So in the wake of that decision, NYRA drafted a new set of procedures for holding hearings and issuing determinations designed to suspend licensees who engage in injurious conduct.

After those rules were made public, NYRA wrote a Sept. 10 letter summoning Baffert to appear at an exclusion hearing.

On Sept. 22, Baffert filed a motion asking the judge to hold NYRA in civil contempt for trying to schedule such a hearing and to stay the hearing itself. Both requests were denied.

  1. Craig Robertson, the lead attorney on Baffert's legal team, then wrote an Oct. 21 letter to the judge asking to be allowed to amend the initial complaint to address the allegedly unfair hearing process. His argument, in part, stated that “The rules and procedures which NYRA has concocted for Baffert were all created after the fact.”

On Nov. 9, in an effort to move along the already cumbersome litigation process, Amon said she would allow Baffert to amend his complaint, because if she didn't, it is likely that he would simply file a new, separate lawsuit to get his allegations about the exclusion hearing ruled upon in court.

“NYRA purports to act pursuant to a new 'rule' that supposedly gives it the right to suspend Baffert for conduct occurring 'in any jurisdiction,'” the amended complaint now states.

“However, prior to this case, NYRA never had such a rule in place and never attempted to punish a trainer for conduct that occurred outside of the state of New York,” the complaint continues. “It created this rule (and the associated procedures) after the alleged misconduct occurred. It is a fundamental due process violation for NYRA to enact rules and procedures and attempt to apply them ex post facto.”

The new allegations further state that “There are numerous other trainers who, unlike Baffert, have actually run afoul of New York's rules of racing, but who NYRA continues to allow to race. NYRA's duplicitous actions make it clear that it has simply chosen to target Baffert for disparate treatment.”

Even as Baffert's legal team is fighting the exclusion hearing, it still must prepare for that process in the event that the court does not intervene to cancel it. The parties have mutually agreed to a Jan. 24 start date.

NYRA has until Dec. 3 to file its response to the amended complaint. When NYRA previously addressed the issue of the hearing in court documents, it termed Baffert's characterization of the process as “misguided,” noting that “Plaintiff s argument that he had no notice of the conduct prohibited by NYRA likewise fails given that common law has long recognized the standards and interests NYRA intends to uphold.”

NYRA had also previously pointed out to the judge that it was “providing Plaintiff exactly what he argued he was entitled to in support of his motion for a preliminary injunction-notice and an opportunity to be heard.”

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NYRA: Hearing For Marcus Vitali Scheduled For March 1

A scheduling conference on Oct. 13 revealed that NYRA-appointed hearing officer Robert Smith has set March 1, 2022 as the date for trainer Marcus Vitali's disciplinary hearing to begin, reports bloodhorse.com.

The New York Racing Association issued a statement of charges and notice of hearing to both Vitali and trainer Bob Baffert on Sept. 10, 2021. The charges include both conduct detrimental to the best interests of racing and conduct detrimental to the business interests of NYRA.

NYRA's public statement from that day reads, in part: “NYRA contends that Mr. Baffert and Mr. Vitali have engaged in conduct that is detrimental to the best interests of the sport of Thoroughbred racing or potentially injurious to the health or safety of horses or riders. Further, as detailed in the respective statements of charges, this conduct warrants revocation or suspension of their right to train horses, enter races, or engage in any racing-related activity at all NYRA properties including Aqueduct Racetrack, Belmont Park and Saratoga Race Course.”

Vitali raced just one horse at a NYRA track this year, sending out Red Venus to finish last of seven in the fourth race on July 22 at Saratoga. After not starting any horses from July 21, 2019, until Jan. 4, 2021, Vitali has saddled 14 winners in 2021, primarily racing at Turf Paradise, Lone Star, and Presque Isle.

NYRA's statement of charges against Vitali begins: “From between in or about 2010 and in or about 2020, Respondent amassed an extensive record of medication violations, lengthy suspensions, improperly using 'program' or 'paper' trainers during suspensions and obstructing an investigation into alleged wrongdoing. In the past five years, Respondent was denied entry, ejected and/or had license applications denied by regulators of Thoroughbred racing in Florida, Pennsylvania, West Virginia, New York and Delaware; and was sanctioned by the Jockey Club for violating a racing statute, rule or regulation relating to prohibited or restricted drugs, medications or substances seven times in a single year.”

Vitali has made headlines many times over the years, first for numerous therapeutic medication violations, then for avoiding sanctions for positive post-race drug tests by turning in his license in FloridaIn 2016, reporting by the Paulick Report revealed Vitali was training horses at Gulfstream Park under the name of Allan Hunter; Vitali and Hunter were subsequently barred from the entry box there and at Tampa Bay Downs. Vitali reapplied for a trainer's license in Florida, where state officials credited him with time served for his medication overages.

The Jockey Club denied Vitali Stud Book privileges for two years, starting January 1, 2017, for being determined to have violated on seven occasions a racing statute, rule or regulation relating to prohibited or restricted drugs, medications or substances in a Thoroughbred on seven occasions within a 365-day period.

Vitali sent out just 29 starters in 2017, mostly at Gulfstream and Gulfstream Park West, but returned with a stronger hand in 2018, with 334 starters, also mostly in South Florida.

In 2019, Vitali's license was suspended for one year when he interfered with a search conducted by Delaware Park security of his employee's dorm, bursting into the room and absconding with an object which was never recovered. Vitali claimed the object was a container of marijuana. His employee at the time said it was an unlabeled vial containing a clear liquid of some type which Vitali asked her to keep in her refrigerator. He has completed that suspension.

In 2020, the Maryland Jockey Club told the Paulick Report that it had given trainer Wayne Potts one week to vacate his barn at Laurel Park, where he keeps 30 horses, after track officials say they discovered Potts was program training for Vitali. Vitali reportedly could not get stalls at racetracks in the area. Maryland officials said they discovered the connection between the two when horses based at Rising Sun Training Center in New Jersey were entered under Potts's name at Laurel and turned up with health certificates that had been altered to white out Vitali's name. A cluster of horses appeared at Rising Sun around that time from longtime Vitali clients, primarily from Florida. That cluster included Be Gone Daddy.

After Potts was told to vacate Laurel, Vitali applied for a training license in Illinois afterwards but was unsuccessful in receiving one. The horses formerly based at Rising Sun ran at Arlington Park and Hawthorne under trainer Dino DiZeo. Many of the same group from Rising Sun posted workouts at Turf Paradise in the days before Vitali saddled his first runner there.

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