Henry Greenberg | Horse Racing Free Tips

NYRA Vs. Baffert Hearing Concludes; Several Steps Remain Before A Decision

Attorneys presented their closing arguments Friday in the week-long hearing between the New York Racing Association and trainer Bob Baffert in NYRA's pursuit to suspend Baffert.

(Read our recaps of previous hearing sessions here, here, here, and here.)

Closing arguments largely reviewed the evidence heard from witnesses over the previous four days. Henry Greenberg, representing NYRA, reiterated the company's concerns were not just based on the six drug violations Baffert picked up in 14 months or the fact that he had two adjudicated violations and an additional, unheard case on Grade 1 races, but also his public handling of those cases.

“He's got a playbook,” said Greenberg. “…Misstate facts, blame others, and avoid responsibility.

“Amongst the Derbies he has won is the Excuse Derby.”

Greenberg also pointed out that while Baffert's attorneys made much of the fact his drug violations took place outside the state of New York and resulted in no penalties by the New York State Gaming Commission. In fact, Greenberg said, as the owner of NYRA Bets, NYRA takes an interest in integrity issues which impact racing outside New York as well as customers wagering from out of state, and that those comprise a majority of the company's business.

W. Craig Robertson, summarizing Baffert's case for the defense, took issue with what he characterized as inaction by NYRA in previous cases, saying the organization's “hypocrisy knows no bounds.” Rick Dutrow, who was handed and ultimately made to begin serving a 10-year suspension, was allowed to continue racing there while he was appealing the case, and Linda Rice, who had her license revoked with the condition she not reapply for three years, is still saddling horses at its tracks. (Greenberg would later point out that Rice has a temporary restraining order in place preventing that license revocation from becoming active.)

Robertson also pointed to the case of Wayne Potts. NYRA said this week it had launched an investigation into the trainer's status following a report he refused to let one of his horses be loaded onto an equine ambulance in New Jersey this summer. When the Maryland Jockey Club determined in 2020 that Potts had been program training for embattled colleague Marcus Vitali however, NYRA released a statement saying, in part, that it would not revoke his entry privileges because he'd had no license taken against his license in that case.

Vitali will be facing a similar hearing to Baffert regarding possible suspension from NYRA in March.

Robertson said the racetrack ownership group seemed uninterested in Baffert's previous drug cases until last year's Kentucky Derby.

“That's what this case is all about,” he said. “Make no mistake about it, Your Honor. This case is about the Kentucky Derby and nothing else.”

“What are they so upset about?” said Robertson. “It comes down to a press conference and three interviews … A man wearing his heart on his sleeve, and now they want to crucify him for it.”

Robertson said Baffert's career was in the hands of Justice O. Peter Sherwood, pointing out that a suspension from NYRA facilities would negate his ability to ever win another Triple Crown.

Greenberg did not apparently dispute that the Derby and Baffert's subsequent mainstream media interviews which Greenberg said impugned racing officials' credibility was a tipping point for NYRA.

[Story Continues Below]

“Here's what we would expect [of Baffert after the Derby] — that he'd honor the profession that has been so good to him,” said Greenberg “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'll do better in the future.' That's all we'd expect, that's all anyone would expect. And what we saw was the exact opposite.”

The procedures handbook set out by NYRA indicates that following the conclusion of the hearing, Sherwood will issue a hearing report which will be disseminated to both sides' attorneys and a panel of people appointed by NYRA's president. From there, both sides have one week to submit additional evidence or disagreements with the contents of the report. The panel will review Sherwood's report and any additional materials filed, and will “have the discretion to adopt, modify or reject any or all of the hearing officer's report, including, but not limited to, the appropriate disposition of the proceeding.”

There are ten days allocated for that review process, after which the panel will issue a final decision which is not appealable within NYRA's oversight.

The post NYRA Vs. Baffert Hearing Concludes; Several Steps Remain Before A Decision appeared first on Horse Racing News | Paulick Report.

Source of original post

‘Are You Calling Me A Liar, Sir?’ Fireworks On Day 3 of NYRA/Baffert Hearing As Dutrow Case Recalled

Wednesday's session of the ongoing hearing between the New York Racing Association and embattled trainer Bob Baffert finished with fireworks during the testimony of retired New York state steward Stephen Lewandowski.

NYRA concluded the presentation of its case just before lunch, and Baffert's attorneys called their first few witnesses in the afternoon.

Lewandowski was called on behalf of Baffert and, under questioning from Baffert's attorneys, said he had no dealings with Baffert on any integrity or rule violation issues in his time serving as a steward in the state. Lewandowski said he called Baffert sometime after he was suspended by NYRA to offer his support.

“I feel like he's been unfairly taken advantage of,” Lewandowski said. “He's never had any problems in New York.”

On cross examination, NYRA attorney Henry Greenberg questioned that point by Lewandowski, bringing up the controversy about Baffert's non-coupled entry in the 2018 Belmont Stakes. Baffert saddled both Triple Crown winner Justify in that race as well as Restoring Hope, who was piloted by Florent Geroux. Mike Repole, co-owner of Vino Rosso and Noble Indy, would later complain to New York Post writer Tom Pedulla that Geroux put in a “reckless” ride aboard Restoring Hope, possibly in an attempt to block some of Justify's competitors.

Headlines in the Post questioned officials' decision not to launch an investigation into the race. Lewandowski said that he eventually spoke to Repole but also that he did not recall Repole's complaint. He said he did not speak to Baffert about the incident, and said he did not recall subsequent media coverage questioning the stewards' lack of investigation. He also said he did not recall eventually reversing course and speaking to Geroux, nor did he recall a meeting with the other stewards, who Greenberg suggested disagreed with each other on the best way to handle the situation.

Then, Greenberg asked Lewandowski about his support of Rick Dutrow, who was suspended 10 years and fined $50,000 after one of his horses tested positive for butorphanol and three hypodermic needles were discovered in a desk drawer in Dutrow's office. Following his retirement in 2019, Lewandowski wrote a letter to the Gaming Commission and to the Queens County District Attorney saying that Braulio Baeza Jr., then a NYRA steward, told him the syringes were planted.

Baeza later denied he told Lewandowski this.

Baffert attorney Clark Brewster objected to the scope of Greenberg's questions but was overruled by Justice O. Peter Sherwood, the presiding hearing officer. As Greenberg asked about the fallout from Lewandowski's letter, Lewandowski became agitated and began shouting. The New York commission released a statement following publication of Lewandowksi's letter in the media. Lewandowski also said he heard from New York's Joint Commission on Public Ethics, though it's not clear in what capacity.

“How can they run something without even speaking to me?!” Lewandowski cried. “I know, NYRA does the same thing. They just decide to suspend Bob Baffert without even telling him. How is that right? You're an attorney, you tell me. … That's what you're doing to Bob Baffert. How about talking to him about charges in Kentucky that haven't even been filed yet. … If I were him I wouldn't answer any questions. … He's a person who has been so kind as to show his horses to everybody who asked. All of NYRA's executives went down there, and Bob pulled him out and they took pictures with him and did all that.

“I never went down there, and why? I thought it was improper to do that.

“And another thing about Rick Dutrow, I never spoke to him, before, until I retired.”

Lewandowski said he asked about how Dutrow could go about reapplying for a license, and passed that information along.

“It took six months to even get an answer from the Gaming Commission, whose job is to protect people like him, not hurt them,” Lewandowski yelled to Greenberg, who by then had stopped questioning him. “It's their job, that's what they're supposed to do. They're here for the people, not for purses. And nowhere and no how has these charges ever been … 10 years and $50,000 … and you know another thing? They took his $50,000. There was an ongoing push to get Rick Dutrow reinstated. They made him pay $50,000 and then here's a man who's totally destroyed. Has no money. Nothing. He's completely broke. They made him pay $50,000 and then told him he can't be licensed. … I would never do that to a licensee. I would never take your money when I know you can't work.”

As to the dispute in stories between himself and Baeza, Lewandowski let loose.

“Braulio Baeza, one of us is lying. It's either Braulio Baeza or me. Are you accusing me of lying?” yelled Lewandowski. “One of us is lying. Why would Braulio Baeza speak to me about Rick Dutrow, who he had nothing to do with. One of us is lying. And I'm not accusing anybody. But it's either him or me. And believe me, he said it to more than one person.

“…Are you calling me a liar, sir? Are you calling me a liar? I am not a liar … I thought Braulio Baeza was a good man. One of us had the information to help a man who was wiped out.

“…Braulio Baeza is not a nice person, no.”

Wednesday's session also included testimony from NYRA lead equine safety investigator Tony Patricola, NYRA veterinary services director Dr. Anthony Verderosa, general manager of NYRA Bets Matthew Feig, and vice president of marketing for NYRA and NYRA Bets Donald Scott. At the start of Baffert's case, testimony came from Hall of Fame jockeys Mike Smith and John Velazquez.

[Story Continues Below]

Wednesday's session opened with Sherwood chastising Baffert attorney Brewster for providing a statement to media about Tuesday's proceedings. Greenberg entered the Paulick Report's recap of the Jan. 25 hearing into the record because it contained the statement, distributed on behalf of Brewster by public relations and crisis communications firm Trident DMG. Greenberg called the statement “highly unprofessional at best.”You can find the Jan. 25 recap here.
Baffert attorney W. Craig Robertson said he had nothing to do with the statement.

Brewster tried to say Greenberg posted similar content on his firm's website. This publication has not received statements from the firm.

“Fortunately this proceeding is not going forward before a jury,” said Sherwood. “I'd be much more sharp-tongued if we had a jury here, sir. I do think these kinds of comments by a lawyer during a proceeding are inappropriate. I would ask you to restrain yourself.”
NYRA's attorneys had two primary focuses from witnesses on Wednesday: the potential for therapeutic drugs to impact pre-race veterinary examinations and injury, and the public reaction to Baffert's recent high-profile drug positive in the Kentucky Derby. Verderosa and Patricola both testified that therapeutic, permitted medications given outside time regulations could make their jobs more difficult in terms of identifying sore horses. They also testified to the danger posed to jockeys, grooms, and veterinary personnel by catastrophic injuries suffered on track.Baffert's counsel clarified that neither official had fielded complaints or themselves flagged horses for further examination from Baffert's barn on the basis they were unsound. (Baffert is primarily based in California and does not, according to Patricola, maintain a barn in New York year-round.) Robertson also pointed out that this summer, when protestors demonstrated their upset over the equine fatality rate in New York, Baffert did not have any trainees in the list of dead horses.
Both Feig and Scott agreed they received feedback from NYRA Bets customers following Baffert's announcement that Medina Spirit had a positive post-race drug test. Feig in particular cited a 20 percent increase in customer service queries on the day Baffert held his press conference, and continued with an elevated number of requests from players the next day.“We had a lot of questions regarding, 'Are you going to refund my wager because I bet on the second-place horse, Mandaloun?' or 'Are you going to give me the money I'm owed?'” recalled Feig.
Feig said there is no mechanism for NYRA Bets or any of its competitors to refund parimutuel wagers based on a change in race results after the race goes official. To date, Medina Spirit has not been disqualified from the Kentucky Derby.

Feig said he also heard from customers with queries or complaints about other trainers, any time there are headlines about an integrity issue. That includes Linda Rice, who had her license suspended by the New York Gaming Commission but who is still permitted to race at NYRA while she is appealing that case.
Feig also said that in the course of applying for the required licenses for NYRA Bets to take wagers from customers outside New York, the organization gets a fair number of questions from regulators about various aspects of its business, including finances, policy, and integrity proceedings. The organization also deals with banks and credit card companies to enable it to do business. Feig said that he did get questions “in passing” about the Baffert situation after the announcement of Medina Spirit's positive from regulators, financial entities, underwriters, and banking institutions. Regulators did not ask him questions about Rice or Wayne Potts, who is currently being investigated by NYRA.
Robertson was interested in the fact NYRA Bets saw a wagering record during the time Baffert was permitted to run horses at Saratoga. He and Feig examined handle figures for a couple of races in which Baffert trained entrants. Feig pointed out that one was a stakes race, which usually gets higher handle than non-stakes races, and the other was the start of the Pick 5 and Pick 6. Typically, Feig said he projects and analyzes handle based upon the number of entries and the wagering menu for that race; trainer of entrants don't normally factor into his forecasts.
Jockeys Mike Smith and John Velazquez testified on Baffert's behalf, saying they have always felt safe riding his horses and agreeing they would like to ride more for him. Both said they did not believe Baffert is a threat to the integrity of racing, nor have they ever witnessed Baffert do anything against the rules of racing during their time spent in his barn.

The post ‘Are You Calling Me A Liar, Sir?’ Fireworks On Day 3 of NYRA/Baffert Hearing As Dutrow Case Recalled appeared first on Horse Racing News | Paulick Report.

Source of original post

‘A Wrecking Ball … To Integrity’: Lawyers For Baffert, NYRA Trade Barbs On Day One Of Exclusion Hearing

There's going to be a lot to unpack in this week's hearing of the New York Racing Association versus trainer Bob Baffert.

In opening statements made by attorneys for the respective sides on Jan. 24, representatives of each made clear that they see a key two-year period in Baffert's career very differently.

Henry M. Greenberg, shareholder in Greenberg Traurig and attorney for NYRA, laid out the organization's frustration with Baffert's recent history of therapeutic drug violations and also his handling of those violations in the national and trade media, highlighting what NYRA sees as a refusal to consistently accept responsibility for those violations.

“What this case is about and what the evidence will show is how one man — this man, the respondent — took a wrecking ball over a one-year period to the integrity of the sport that was so good to him for so many years,” said Greenberg. “He sullied and soiled, in one year, 365 days, three of the great races in America — the Arkansas Derby, the Kentucky Oaks, and the Kentucky Derby. Throughout that period, not once did he take responsibility for his actions, did he express contrition. Time and again, again and again, six times, he would blame others to try to avoid responsibility for his own actions.

“In 2020 and 2021, the only Triple Crown he's responsible for is destroying three Grade 1 races.”

On the first day of the hearing, Greenberg tracked the changes in Baffert's responses to Medina Spirit's post-Kentucky Derby betamethasone overage in the national media — from the trainer denying the horse received the drug at all in a press conference he called after learning of the overage to his insistence days later that the overage was due to the administration of a topical ointment — as well as his representations that other overages, such as Gamine and Charlatan's lidocaine tests in Arkansas and Merneith's dextrorphan test in California, were due to environmental contamination.

“The evidence will show NYRA had an obligation to act,” Greenberg said. “It had an obligation to protect the sport of Thoroughbred racing and its integrity … Racetrack operators like NYRA and Churchill Downs have a social license, you will hear, with the public.”

Attorneys for Baffert say NYRA's objections are overblown and beyond the organization's authority.

“The facts in these case are going to be nothing like what you just heard,” said W. Craig Robertson in his opening statement, following Greenberg's. “Bob Baffert is one of the most respected individuals in racing not just now, but in all time. NYRA, which they've just started, is going to throw at you innuendo, speculation and downright distortions. What I'm going to focus on are facts.”

Robertson pointed out that the drug positives at the heart of NYRA's case — six picked up in a span of 14 months from July 2019 to September 2020 — are for therapeutic substances whose thresholds are measured in small concentrations. Further, he said, racetracks should not be allowed to take regulatory action against a licensee.

“The actions being taken by NYRA are unprecedented,” he said. “You're the only thing standing between NYRA and [this suspension] happening.

“I'm not asking that you treat him any better than any other trainer. I'm just asking that you don't treat him any worse.”

Robertson also chastised NYRA for taking action against Baffert before a ruling has been made in the Kentucky Derby betamethasone case. According to Baffert's attorneys, no hearing has yet taken place in that case before the Kentucky stewards. The Kentucky Horse Racing Commission would not confirm to the Paulick Report last week whether one had been scheduled yet.

Only one witness was called to the stand in the first day of testimony — Rick Goodell, a regulatory attorney who has represented the New York State Gaming Commission in many drug and other rule violations cases over the past 20 years. Part of Goodell's duties in New York were to recommend potential penalties for various rule violations, including drug violations. Greenberg asked Goodell to run through the list of Baffert's drug positives and respective penalties in the context of his experience working for the state of New York. In the case of a lidocaine positives, which comprised two of the six violations at question, Goodell said he would have expected to pursue a 45-day suspension in each case, but offer the trainer 30 for their first lidocaine violation if they agreed not to pursue an appeal. In the case of phenylbutazone, which accounted for two more of the six violations, he expected to pursue 14 but offer a trainer seven days' suspension if they agreed not to appeal.

All told, Goodell said a trainer with Baffert's record in New York would have racked up 240 days' suspension if he did not decline to appeal cases. Baffert did not serve days for any of the six.

(Those six overages were a phenylbutazone from a July 27, 2019 race at Del Mar; a phenylbutazone from an Aug. 3, 2019 race at Del Mar; two overages of 3-hydroxylidocaine at Oaklawn May 2, 2020; one dextrorphan in a July 25, 2020 race at Del Mar, and a betamethasone in the 2020 Kentucky Oaks in September. The Medina Spirit test is not counted towards the six since it hasn't yet been adjudicated.)

Goodell also said that by his reading of the current draft of proposed regulations of the Horseracing Integrity and Safety Authority (HISA), the same record in the same period of time could result in a suspension as long as 18 months.

Of course, as Baffert attorney Clark Brewster pointed out, none of these violations took place in New York under current New York regulations, nor did they take place under HISA regulations, which are still in development. It remains somewhat unclear what could have been called a positive in New York because Goodell said New York keeps a document with drug testing thresholds but that Dr. George Maylin, director of the drug testing lab for New York state, maintains the right to call a positive if he believes a sample indicates a drug was given outside the regulated timeframe, even if it's under the threshold.

Brewster and Robertson also suggested that NYRA's actions here could be motivated by key New York racing personalities who may be “jealous” of Baffert and his success, or tired of losing to him. Goodell maintained he was not qualified to speculate on that.

Goodell's testimony continues on Jan. 25. The hearing is projected to take three to five days total.

The post ‘A Wrecking Ball … To Integrity’: Lawyers For Baffert, NYRA Trade Barbs On Day One Of Exclusion Hearing appeared first on Horse Racing News | Paulick Report.

Source of original post

Judge Says Baffert Reply is Admissible

The federal judge presiding over the Bob Baffert versus the New York Racing Association ban case ruled Thursday that Baffert's affidavit, filed Wednesday as part of a 434-page “reply memorandum of law in further support of motion for preliminary injunction” of NYRA's ban, would not be stricken or disregarded, as NYRA had requested.

NYRA's attorney, Henry Greenberg, argued that the reply included new information that the NYRA did not have time to investigate and that the entire filing or the affidavit should be stricken or disregarded.

NYRA informed Baffert on May 17 after Medina Spirit's Derby positive for Betamethasone became public that he was temporarily not welcome to stable or race at Aqueduct, Belmont or Saratoga.

On June 14, Baffert filed a civil complaint against NYRA, alleging that the association's ban violates his Fourteenth Amendment constitutional right to due process.

On June 30, NYRA filed a 236-page memorandum in opposition to granting Baffert an injunction. Baffert's attorneys filed their 434-page reply on Wednesday.

On a conference call at 2:30 p.m. Thursday, Judge Carol Bagley Amon ruled that all of the arguments and exhibits in Baffert's July 7 filing were admissible.

On the call, Greenberg told the judge that the filing of the paper was a “classic sandbag” on the part of Baffert's attorneys.

“The moment we saw the plaintiff's papers, especially the plaintiff's affidavit, we were shocked and disturbed,” Greenberg told the judge. “Because frankly, the plaintiff's submission was the most abusive use of a reply submission that I have ever seen.”

Greenberg argued that many of the claims made in the filing were not in reply to NYRA's response, nor were they substantiated. As an example, he cited the well-documented loss by Baffert of several top WinStar horses.

The Baffert filing details how WinStar had moved its horses to other trainers as a result of the NYRA ban.

“As for harms that have already occurred as a result of NYRA's ban, one of Baffert's major clients, WinStar Farm (“WinStar”) has moved all of its horses to other trainers. This included significant thoroughbreds LIFE IS GOOD (this year's Kentucky Derby favorite before he suffered a minor injury) and COUNTRY GRAMMER (Grade I winner of the Hollywood Cup and an early favorite for this year's Breeders' Cup Classic). This loss is substantial to Baffert, not only be because of the quality of the horses he lost, but because he has successfully trained many horses owned by WinStar, including recent Triple Crown winner JUSTIFY. WinStar's CEO, Elliott Walden, has publicly stated that he pulled these horse from Baffert partially due to NYRA's suspension because Baffert's current ability to enter horses in prestigious races is `limited.'”

The filing includes a copy of several stories from industry press detailing the incident and quoting Walden.

But Greenberg argued, “First of all, we have no idea if that's true or not. Second of all, WinStar is a corporation, not a person. Third of all, it's hearsay. Fourth of all, it's conclusive.”

“Who said these things?” Greenberg asked.

But Baffert's attorney Craig Robertson pointed out that Walden was indeed named in the filing, but was quoted in press clippings that were also provided. The TDN covered the story on June 24.

In the story, it quotes a text to the media from Walden which says, “The plan is to ship to Todd Pletcher in the coming weeks with a possibility of running in New York later this year. With the ban on Bob in Kentucky and New York right now, our opportunities are limited. We will continue to evaluate the situation with Bob and appreciate everything he has done with Life is Good.”

“They said Mr. Baffert has not given any specifics about horses who have been removed from his care, and that that was an important component,” Robertson said. “And so, in response to that, we drafted our reply and we addressed those specific points. They allege that we hadn't met our burden in response, which is exactly what we're allowed to do. We address the importance of New York racing to Mr. Baffert, and we address the specifics that they were claiming that were missing.”

Judge Amon said that while she hadn't expected to rule on any motions in the conference call, she was now being called upon to do so.

“There has been a motion to strike the affidavit of Mr. Baffert. Based on what I have heard today in this conference, I'm going to deny the motion to strike the affidavit,” she said.

She also recommended that Baffert be in court Monday in case he were called upon to testify to settle any disputes. She asked Robertson if Baffert were asked to testify that it was Walden who had talked to Baffert, would he be able to say that Walden had told him that?

“Yes, your honor,” said Robertson.

Robertson said that he would also provide the judge with other owners' names for whom Baffert had lost horses due to the NYRA ban by noon tomorrow.

The post Judge Says Baffert Reply is Admissible appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post