Santa Anita Stewards Dismiss Complaints Against Justify, Hoppertunity

The latest development in a long, tumultuous and litigious journey saw the California Board of Stewards dismissing complaints filed by the current California Horse Racing Board (CHRB) regarding the scopolamine positives incurred by Justify (Scat Daddy) and Hoppertunity (Any Given Saturday) following their runs in the 2018 GI Santa Anita Derby and the GIII Tokyo City Cup S. respectively.

The CHRB filed the complaint as part of a legal settlement with trainer Mick Ruis, owner of Santa Anita Derby runner-up Bolt d’Oro (Medaglia d’Oro).

According to attorney Darrell Vienna, who represents Ruis, he filed a claim Thursday evening with the CHRB requesting that the board overturn the steward’s decision. The claim, he said, concerns a statute in the state’s Business and Professions Code.

The decision was issued Thursday evening following an Oct. 29 hearing on the matter. A TDN report on the hearing can be read here.

“I’m happy with the decision—mostly importantly for Justify. He is a great horse and deserves his undefeated record,” said Bob Baffert, trainer of both horses, in response to the decision.

In a 10-page ruling, the stewards framed the decision as one that came down to the following: “Whether, at the times of the races, Scopolamine was a class 3 or a class 4 prohibited substance as classified by the CHRB.”

Boiled down to its component parts, the decision circled two main CHRB rules: rule 1843.2, regarding drug classifications; and rule 1859.5, regarding disqualifications following a positive test.

The evidence as to what class of substance Scopolamine was listed in April, 2018, when the two horses competed, was “conflicted,” the stewards admitted.

“At the time of the races in April of 2018 the CHRB rules considered Scopolamine a class 3 prohibited substance,” the decision states. In California, class 3 drug positives trigger automatic disqualification of horses, regardless of trainer intent or culpability.

The CHRB, however, based its rules on the Association of Racing Commissioners International (ARCI) guidelines. The ARCI Uniform Guidelines for Foreign Substances was changed in December of 2016 to list Scopolamine as a class 4 substance.

“If this change in the ARCI Guidelines were to prevail in the interpretation of the 2018 version of rule 1843.2, then the disqualification of the two horses would not be necessary as the prohibited substance would not fall into a class 1-3 category,” the stewards’ decision states.

The slow-moving wheels of California administrative law, however, meant that the CHRB hadn’t formally adopted ARCI’s guidelines at the time of the two races.

At a CHRB board meeting on Aug. 23, 2018, the CHRB finally voted to adopt a rule amendment which formally changed Scopolamine from a class 3 to a class 4 prohibited drug, which wouldn’t require disqualification.

The CHRB, however, must formally adopt a rule change to 1843.2 before any changes in drug substances become effective, the stewards’ decision states. As such, “It is the Stewards’ opinion that had this Board of Stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified,” the decision states.

Crucially at that same meeting on Aug. 23, however, the attending commissioners voted in executive session not to move forward with charges in the Justify matter, heeding the advice of former CHRB executive director Rick Baedeker and Rick Arthur, CHRB equine medical director.

For one, the CHRB knew at that time that the ARCI had changed its classification guidelines to reflect that Scopolamine was now a class 4 prohibited substance, the stewards’ decision states.

Secondly, “Dr. Rick Arthur was of the opinion that the Scopolamine found in Justify and Hoppertunity, as well as five other horses tested in April and May 2018, was the result of environmental contamination and that the matters should be dismissed. He believed it was the right thing to do,” the decision states.

Furthermore, “Testimony by Dr. Arthur indicated that he felt the change in the ARCI Guideline Classifications for Scopolamine from a class 3 to a class 4 in December of 2016 was sufficient enough for him to consider the rule amended because the rule changing process in California is cumbersome and inefficient,” the stewards’ decision adds.

“Even if this panel were to disagree with the CHRB’s decision to dismiss these matters or the way the CHRB handled the situation, it cannot be argued that the CHRB lacked the authority to do so,” the decision states. “The law specifically allows such actions to take place and the CHRB followed the law.”

Following the law the CHRB may have, but the lack of transparency with which the whole matter was handled has eroded public trust in the board, as Arthur feared at the now infamous executive session in August of 2018.

That day, Arthur warned of a perceived lack of transparency should the CHRB fail to go public with the decision, the stewards write. A little more than a year later, the New York Times published its explosive story which confirmed Arthur’s fears as it pulled back the curtains on the board’s inner workings.

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Northview Set for Fasig-Tipton Midlantic December

   Northview Stallion Station will be busy at the upcoming Fasig-Tipton Midlantic December Mixed and Horses of Racing Age Sale on Tuesday, Dec. 8. The consignment will offer nearly 50 head, including a 27-horse reduction of breeding stock for Joseph Besecker.

Perhaps more importantly, the annual Midlantic sale will allow the Chesapeake City, Maryland-based farm the opportunity to show off stock from their growing stallion roster, including the first weanlings from Irish War Cry (Curlin) and Hoppertunity (Any Given Saturday).

“Our game is to bring the best we can for the market in the Mid-Atlantic region and in Maryland and not to price ourselves out of the market,” said Northview’s Bloodstock Manager Paul O’Loughlin. “We try to go for sire power and horses with pedigree, and what’s affordable to the Maryland breeders.”

A New Jersey-bred and homebred for Isabelle de Tomaso, Irish War Cry shone as a juvenile, breaking his maiden on debut and then taking the Marylander S. On the Derby trail at three, he won the GII Holy Bull S. and GII Wood Memorial S., and later ran second to Tapwrit (Tapit) in the GI Belmont S. He came back at four to win the GIII Pimlico Special S.

O’Loughlin says that Irish War Cry’s first crop was popular with breeders from the beginning.

“It’s always a good sign when you see the first foals and people come back again. Then you know they’re good,” he said. “He’s giving them the Curlin stamp and they look pretty good from what I’ve seen. All the breeders are still interested in him and there have been inquiries already for the coming year.”

Northview will offer one Irish War Cry weanling, a colt out of the stakes-placed Pret Say Eye (Ready’s Image), selling as Hip 118.

Northview’s other first-crop weanling sire Hoppertunity began his career at stud as the richest stallion to enter stud in the Mid-Atlantic. The Bob Baffert trainee earned a pair of Grade I scores in the Clark H. at three and Jockey Club Gold Cup S. at five. In his 34 starts, he ran in the money 22 times, and was seven-times Grade I placed. At seven, he retired with earnings of over $4.7 million.

“Hoppertunity doesn’t need any introduction,” O’Loughlin said. “He ran all over the world and danced every dance with every horse around the country. He’s stamping his progeny pretty well. They’re big, strong, and have plenty of bone. They look very racey.”

The son of Any Given Saturday stood his first two seasons at Northview’s Pennsylvania location, but upon the farm’s recent consolidation, he will stand his first year in Maryland in 2021.

“He bred over 100 mares in his first two seasons, so especially now being in Maryland, it looks like he’ll continue to be popular,” O’Loughlin noted.

Northview will consign Hip 132, a son of Hoppertunity out of the Silvikova (Badge of Silver) at the upcoming Fasig-Tipton sale, while two additional weanlings by the young sire will be offered as Hip 94 with Becky Davis and Hip 127 with Bill Reightler.

In addition to watching the development of the progeny from Hoppertunity and Irish War Cry, Northview also anticipates seeing the first crop of 2-year-olds hit the track next year for three-time graded stakes winner Madefromlucky (Lookin at Lucky).

“He didn’t have huge books, but he had enough to sustain a good 2-year-old season,” O’Loughlin said. “The yearlings are pretty sharp-looking for a horse that was a distance horse, so we’re excited.”

Founded in 1989 by Richard Golden, Northview Stallion Station has since been home to several of Maryland’s leading sires including Not For Love (Mr. Prospector), who topped the state’s sire list on 14 occasions, as well as Great Notion, Maryland’s leading sire by earnings since 2018.

While restricted to a smaller book nowadays at the age of 20, Great Notion is still producing winners. During this year’s Maryland Million program at Laurel Park, his progeny accounted for four of the eight winners on the stakes card.

“He’s loved by everybody in Maryland,” O’Loughlin said. “Outside of Maryland, they show up everywhere. He’s even had runners at Royal Ascot. It’s an honor for Northview to have the best active stallion in the Mid-Atlantic at the minute.”

O’Loughlin said that Golden’s son Michael oversaw the operation’s consolidation process this year and has additional plans to better the farm moving forward.

“Michael is very enthusiastic. He’s serious and plans to do a lot of remodeling. We’re going to make it a powerhouse moving forwarding, bringing new stallions and rebuilding the farm–what Maryland needs.”

O’Loughlin said he is confident in Maryland’s breeding program, and has high hopes for Northview’s growth in the coming years.

“The Maryland Horse Breeders’ Association is doing a great job in getting people to stay and breed here,” he said. “Northview Stallion Station is doing their utmost best to bring in the best stallions they can and afford people to keep them in Maryland. It’s encouraging for the future. To have better horses, we need better mares and we need more people to stay here. But it’s working.”

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Baffert Scopolamine Hearing Unfolds in Complicated, Twisting Fashion

After 2 1/2 years of closed-session decision-making by the California Horse Racing Board (CHRB) and a complicated court battle to publicly reopen the case over whether to disqualify 2018 Triple Crown winner Justify over a scopolamine positive from when the colt won that year’s GI Santa Anita Derby, the initial back-and-forth legal salvos in an Oct. 29 stewards’ hearing on the matter indicate that the argument could come down to whether scopolamine was a Class 3 or Class 4 substance at the time of the post-race test.

The difference in classification might seem pretty simple to determine. And the distinction is of the utmost importance in California, where Class 1 through 3 drug positives trigger automatic disqualification of horses, regardless of trainer intent or culpability.

But as four-plus hours of back-and-forth testimony and cross-examination repeatedly underscored Thursday, a definitive answer on the drug’s technical classification remains elusive and open to interpretation because of the cumbersome, bureaucratic way the CHRB has to codify its rules to comply with state law (explained below).

Beyond the objection-laden testimony over scopolamine’s classification at the time of Justify’s positive, an attorney for Bob Baffert, the colt’s trainer, argued that the stewards shouldn’t even be re-hearing the case at all because the CHRB already adjudicated it without imposing any penalization or race disqualification in an August 2018 executive session.

That controversial 2018 commission vote took place privately after a detailed–but not publicly disclosed at the time–investigation that led to the exoneration of Justify and Baffert based on a finding of accidental environmental contamination by jimson weed.

“This case was correctly decided by the CHRB in 2018. It was a final and binding decision. And nothing has changed since then, and you all should simply affirm that decision so that we can put this matter to bed once and for all,” said Baffert’s lawyer, W. Craig Robertson III.

“When that investigation was complete, there were two things that were clear, undisputed and undeniable,” Robertson continued. “Number one, that this was a case of innocent environmental contamination from hay and it was not a case of any intentional administration of any drug or medication. And number two, that the trace levels of scopolamine … had no effect on the performance of these horses and no effect on the races.”

But Robert Petersen, an attorney representing the CHRB, said he disagreed “with the idea that this is somehow a re-do of some earlier adjudication. I think the facts clearly show there has never been a full adjudication on the merits of this issue … People may have an issue with the rule [mandating Class 3 disqualifications being too] draconian. But that’s what the rule is. I can’t change the rules.”

Although Justify is the “headline horse” in the case, the stewards were combining two cases into one hearing Thursday. Also up for potential re-adjudication was the scopolamine positive of MGISW Hoppertunity, another Baffert trainee who tested dirty when winning the GIII Tokyo City Cup S. the day after Justify won the Santa Anita Derby.

For context, the two positives of the Baffert trainees were not isolated cases. In roughly the same time frame in 2018, the CHRB received positive post-race tests for scopolamine on five other horses, and the CHRB eventually treated them all as unintentional jimson weed contaminations from ingesting tainted hay.

Thursday, the CHRB’s equine medical director, Rick Arthur, DVM, was the chief witness called by Baffert’s attorney to defend the new complaint.

Arthur, who led the 2018 scopolamine investigation and had recommended not penalizing Justify, Baffert, or any of the other horses or trainers based on the findings and mitigating circumstances, testified under the unusual circumstances of disagreeing with the CHRB’s decision to have the Santa Anita stewards revisit the case. (It should be noted that the CHRB is no longer comprised of the same makeup of commissioners who were on the board in 2018).

“The entire case [of all scopolamine positives during that time frame] was dismissed. And I’m actually pretty shocked the state’s arguing otherwise,” Arthur said.

“I stand by my recommendation to the executive director and the board 100%,” Arthur continued. “This was the correct decision. It was the fair decision. Usually, regulatory agencies don’t have the guts to do what’s fair and right, and this board made that decision appropriately. I think they could be questioned about the lack of transparency. And I warned them that this was not going to stay a secret at that time. But that was their decision, not mine.”

Background on the case

Arthur’s point about the lack of transparency factors centrally in the way the Justify and Hoppertunity positives were handled in 2018. No complaints were issued at the time of findings, and the CHRB’s investigation unfolded behind the scenes while the nation was watching Justify win race after race en route to an undefeated, Triple Crown-winning season.

When the CHRB finally did vote not to penalize Justify or Baffert, it was August 2018, and their unanimous executive-session decision was not made public.

It was more than a year before news about Justify’s positive and non-penalization became widely known. On Sept. 11, 2019, the New York Times broke the story that Justify tested positive when he won the Santa Anita Derby, a GI Kentucky Derby points qualifying race that vaulted him into contention for the Triple Crown.

That revelation sparked a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d’Oro. In his suit, Ruis alleged that the CHRB’s secret vote to dismiss the case led Ruis to suffer “the loss of purse caused by the CHRB’s failing to disqualify Justify and re-distribute the purse for the positive test result.”

Eight months later, as part of a negotiated settlement to get Ruis to drop his lawsuit, the CHRB again met in closed session, voting Aug. 20, 2020 to reverse its previous course of no action and to proceed with a complaint seeking the disqualification of Justify and the redistribution of the purse from that stakes.

So is scopolamine Class 3 or 4?

The new complaint that the stewards were tasked with adjudicating Thursday pertains to possible race disqualifications for Justify and Hoppertunity, and not punishment of Baffert.

The bone of contention that came up early and often was how California classified scopolamine at the time of the offenses.

The CHRB, by its own regulation, follows the Association of Racing Commissioners International (ARCI) Uniform Classification Guidelines for Foreign Substances and Recommended Penalties when establishing model rules for drugs. The ARCI once classified scopolamine as a Class 3 drug (lower-number classifications are more severe). But in December 2016, the ARCI reclassified it to a lesser Class 4 offense.

Arthur testified that the CHRB fully intended to follow the ARCI’s model rule that reclassified scopolamine (and other drugs that also changed classes). But since California’s Office of Administrative Law doesn’t allow the CHRB to change rules by automatically referencing another authority’s code, the racing agency has to go through a drawn-out process to make even minute changes such as drug reclassifications.

So because of this bureaucratic backlog, scopolamine in 2018 was still technically Class 3 in California, even though Arthur and the CHRB considered it to match the ARCI’s newer Class 4 downgrade.

Arthur explained how as the equine medical director, he has regulatory leeway to take into consideration mitigating circumstances, and that’s what he did when recommending no initial penalties for the scopolamine positives.

“It is inherently unfair to hold somebody to a classification that is outdated because of regulatory inefficiency,” Arthur said.

But Petersen, the CHRB attorney, said regardless of Arthur’s intent and interpretation, that’s not how the scopolamine rule was on the books at the time Justify and Hoppertunity tested positive.

“It is true that scopolamine was later reclassified as Class 4. But that did not happen until January 2019,” Petersen said.

In concluding remarks, Robertson urged the stewards to consider the wider, precedent-setting implications of not allowing the scopolamine adjudications from 2018 to remain intact.

“You, as stewards, always have discretion to do what’s right and just,” Robertson said. “And not only do you have that discretion, you should exercise that discretion. Not just for the parties in this case, but for the horse industry as a whole.”

CHRB steward John Herbuveaux, who moderated the proceedings, cautioned all parties at the conclusion of the hearing that a decision is “not going to be something that’s going to happen in the very near future.”

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Justify, Hoppertunity Disqualification Hearings Should Be Held, California Judge Rules

The connections of 2018 Triple Crown winner Justify and Grade 1 winner Hoppertunity on Thursday were thwarted in their attempt to stave off an Oct. 29 hearing before California Horse Racing Board stewards concerning possible disqualification from April 2018 victories by the two horses at Santa Anita Park because of failed drug tests.

Both horses tested positive for the banned substance scopolamine: Justify, after his win in the Grade 1 Santa Anita Derby; and Hoppertunity in the Grade 3 Tokyo City Cup.

Los Angeles Superior Court Judge James C. Chalfant denied an application for a temporary restraining order requested by attorneys for WinStar Farm, China Horse Club, Head of Plains Partners, and Starlight Racing, the owners of Justify, and Michael Pegram, Karl Watson and Paul Weitman, the owners of Hoppertunity. Trainer Bob Baffert and jockeys Mike Smith and Flavien Prat were also named as petitioners in the case.

Earlier this year, the CHRB settled a lawsuit filed by Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, conditional on the stewards conducting a hearing into Justify's positive drug test. The case was not pursued in 2018 after CHRB members voted unanimously in closed-door executive session – upon the recommendation of equine medical director Dr. Rick Arthur and then-CHRB executive director Rick Baedekr – not to file complaints. Arthur and Baedeker had investigated the cases and concluded the positive tests were a result of hay contaminated with jimson weed.

Ruis filed suit after learning of the CHRB's actions from a 2019 report in the New York Times.

Attorneys for the connections of the two horses argued  that the CHRB was violating government code by reopening a case more than two years after the fact. Attorneys for the state said the petitioners were premature in seeking judicial review because the cases had not yet gone through the administrative process (i.e., a stewards hearing).

“At this hearing, the parties will have the opportunity to present evidence and make argument,” the state said in its opposition to the restraining order. “After the hearing, the Board of Stewards will render a decision. The decision by the Board of Stewards could be in favor of Petitioners or could be against Petitioners. If Petitioners take issue with the decision by the Board of Stewards following the Oct. 29, 2020, hearing, they can file a petition for writ of mandate. … Instead of following the procedures set forth by California law, Petitioners want this court to prematurely intervene and short-circuit the administrative processes of the CHRB.”

Darrell Vienna, an attorney for Ruis, issued a statement after the ruling that stated: “We are pleased that Judge Chalfant saw through this flimsy attempt to delay or avoid a long overdue and proper treatment of the positive tests involving these two horses.”

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