Baffert Takes Stand in Day One of ’21 Derby DQ Appeal

Trainer Bob Baffert spent 2 1/2 hours on the witness stand testifying at a Kentucky Horse Racing Commission (KHRC) appeal hearing Monday.

Baffert's intent by filing the appeal is to clear from his record a 90-day suspension he has already served while also reversing the KHRC's disqualification of Medina Spirit from the 2021 GI Kentucky Derby.

Those penalties were the result of the Baffert-trained colt returning a positive for betamethasone after crossing the finish wire first in America's most historic and important horse race.

Beyond the already-served suspension (which ran from early April through early July) and a pending KHRC fine for $7,500 (that is also being appealed), Medina's Spirit's betamethasone overage also triggered separate banishments and sanctions from racing at the Churchill Downs, Inc. (CDI) portfolio of racetracks, plus at the New York Racing Association tracks.

Baffert has either fought or is in the process of fighting both of those sanctions in court, but right now he is precluded from having a trainee in the 2023 Derby because of CDI's actions against him (as part of a two-year ban, CDI had also denied Derby participation to the Hall-of-Fame trainer in 2022).

Monday's hearing rekindled many of the same pro-and-con arguments that have been repeatedly articulated by both sides over the past 16 months in various courtroom and hearing settings.

This latest KHRC hearing process could last the entire week.

Horse Racing Nation (HRN) published live updates of the Aug. 22 proceedings in Frankfort, Kentucky.

HRN reported that Jennifer Wolsing, general counsel for the KHRC, framed the case in straightforward terms during her opening statement.

“This is a very simple case,” she stated. “Betamethasone is a class C medication which has been prohibited in Kentucky.”

Clark Brewster, who represents Baffert, countered with his own opening statement that focused on disputing the KHRC's claim that there was an applicable “limit of detection” rule while also disputing the KHRC's assertions that Baffert had a pattern of medication rulings against him.

HRN also reported that, “Brewster also sought to discredit Industrial Labs, which returned the positive test on Medina Spirit, suggesting that the company needed to come back with positive tests to stay in business.”

Brewster also claimed there was a difference between injecting betamethasone (which Baffert has denied) and using it topically as an ointment like Otomax (which is Baffert's explanation of how the drug got into Medina Spirit), according to HRN.

“I won't say it was a mistake [to give Medina Spirit an ointment the day before the Derby],” Baffert was quoted as saying in HRN. “If you use an ointment to humanely heal a rash, it's not a mistake.”

At one point during testimony, Wolsing questioned Baffert's knowledge about medication rules in Kentucky, and asked Baffert to read aloud the ingredient list for Otomax, which includes betamethasone valerate.

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Baffert Stay Request Denied by KHRC

The Kentucky Horse Racing Commission (KHRC) voted 10-0 Friday to deny stays of penalties while trainer Bob Baffert and owner Amr Zedan appeal their equine drug positive rulings related to Medina Spirit's disqualification from the 2021 GI Kentucky Derby.

One of Baffert's attorneys, W. Craig Robertson III, told TDN after the vote that the decision was “very disappointing.” He added that “I have never seen the KHRC not grant a stay in the past. We will take the matter back up with the Franklin Circuit Court on Mar. 17.”

Robertson is referring to an active court case initiated Feb. 28 by Baffert and Zedan to keep their penalization from being enforced while their case gets appealed at the commission level. When their request for an injunction came before that court Mar. 2, the judge said he would hold off on a full hearing for the matter until after the KHRC had a chance to vote on the stay.

Baffert is facing a 90-day suspension and $7,500 fine for now-deceased Medina Spirit's betamethasone overage in the 2021 Derby. Zedan has been ordered by the KHRC to forfeit his colt's purse winnings.

The Mar. 4 KHRC hearing was split up into three parts: First, attorneys on each side (one for Baffert/Zedan and one for the KHRC) were allowed 10 minutes to state their cases. Then the KHRC voted to go into executive session to discuss that matter. That session lasted about 30 minutes and was kept from the public. Then the board reconvened in open session for a roll call vote with zero public discussion.

Ten commissioners voted to deny a stay. Three (Kerry Cauthen, Lesley Howard, Charles O'Connor) abstained because of an “actual or perceived conflict of interest.” Tom Riddle appeared to be muted on the Zoom feed and did not cast an audible voice vote.

Attorney Clark Brewster, representing Baffert and Zedan, said that by refusing to grant a stay, the KHRC was administering a “devastating virtual death blow” to Baffert's business.

After the vote, Brewster told TDN in a phone interview that the lack of a stay would mean the disbanding of Baffert's entire racing stable.

“He's got 88 horses. He's got 70 different [employees] who are the principal earners for their families. It's irresponsible to not allow him an opportunity to put on his evidence and have people judge that evidence and those facts honestly and objectively without bias or an agenda,” Brewster said.

“Do I think the court [will] grant a stay? I can't conceive of  a situation where they would not,” Brewster added.

But with the threat of having to shut down his business for 90 days still looming as a very real possibility, Brewster was asked if Baffert was actively making contingency plans for that outcome.

“Well, I haven't discussed that, honestly, because I'm very confident [that the court will grant a stay],” Brewster said.

Brewster added that courts generally take a hard look at situations in which an agency like the KHRC is “the investigator, the prosecutor, the judge and the jury. You have to really look at making sure there's no bias or there's no particular conflicts in that setting before you allow [the agency] to adjudicate those facts…. I mean, the rules don't even permit a 90-day suspension.”

TDN asked Brewster directly if come May 7, he believes Baffert will have starters in the Kentucky Derby considering both KHRC's ruling against him and the private-property banishment imposed upon him by Churchill Downs.

“It just depends whether the decision-makers, based upon the facts that we have, are objective and dispassionate and neutral,” Brewster said. “[If so] then the answer is 'certainly.' If we don't have the opportunity to get to a spot where that evidence can be decided by a neutral, detached decision-maker, then it's in doubt.”

Brewster's argument at Friday's KHRC meeting largely focused on the stay itself, which had been denied Feb. 25 by KHRC executive director Marc Guilfoil. But he also talked about the difference between betamethasone's administration via the skin rash ointment Otomax (which is how Baffert said Medina Spirit came up positive) versus intra-articular injection to help with joint discomfort (which Baffert denies administering).

“The [denial of the] stay was based upon one line from Mr. Guilfoil that said there's no good basis,” Brewster said during his presentation. “But we never had a conversation with Mr. Guilfoil. He wasn't present at the hearing. I don't know how we could not have had an opportunity to address that with him before he issued the denial.”

Brewster also told the KHRC that the only factual findings that the stewards made dealt with Baffert's recent history of medication violations. But, he argued, Baffert was not given any opportunity to see that evidence or be allowed to comment on or refute it.

“The stewards' ruling in this matter–we don't really know what they ruled. There's no facts. [State law] requires there to be factual findings. What are the facts? What did they decide? We put on a pretty extensive presentation of evidence, both in testimony and in rules and in literature. None of it was commented on,” Brewster said.

“We don't know whether they rejected the testimony. We don't know whether they found [the betamethasone overage to have come from an] ointment or an injectable. We don't know. There's no way to tell. And the law, in Kentucky particularly, it's very clear that if you don't have [findings] articulated, there can't be deference granted to it. In other words, an appellate court or a reviewing body couldn't give credence to a report that punished someone that had no factual findings,” Brewster said.

“The truth of the matter is this case really comes down to a really fine point. And that is, betamethasone is regulated in Kentucky…on the basis of an intra-articular injection. It specifies the exact medication and has a 14-day restricted administration time. That's it…. There has never been a threshold set in the rules…. That's a substantial issue that will be litigated…ultimately in a court. But to disregard not even a reference of it in the findings, is not justifiable sufficiently to have punishment imposed–devastating punishment–without a stay,” Brewster said.

“Betamethasone is a permitted therapeutic medication under Kentucky. Everyone we talked to understood [the KHRC rule pertains to] the injectable, not the salve. But rather, the administration [of] a salve deposits very low bioavailability in a horse. The testimony, irrefutably, at the hearing in front of the stewards [showed] it couldn't possibly have any possible effect on the horse itself,” Brewster said.

“This isn't the kind of violation, any way you look at it, that would warrant a 90-day suspension or that would result in a massive fine [and] the disbanding his barn. This is an overreaction, I believe. But without the factual findings set forth, we don't know what the stewards thought.”

The KHRC adhered strictly to the 10-minute-per-lawyer time limit, and the video feed promptly cut of Brewster in mid-sentence while he was wrapping up his remote presentation.

Jennifer Wolsing, the general counsel for the KHRC, told commissioners that “the question before you is whether there is good cause to grant a stay.”

Wolsing referenced Baffert's history of drug violations in roughly the year preceding Medina Spirit's positive, and also noted the trainer's public avowals regarding better medication oversight in his racing stable and his subsequent attempts to shift the source of the betamethasone that was found in Medina Spirit's system.

“The effect of [all] this was to diminish confidence in an entire industry–breeding, racing and sales,” Wolsing argued.

“The science does not support Mr. Baffert's theory that betamethasone makes a difference to the horse by route of administration. To put it simply, betamethasone by any other name is still a banned substance on race day…. The source of the betamethasone is irrelevant to the pharmacological impact on the horse,” Wolsing said.

“The most important thing that we have to remember as regulators is that our regulations reflect the science. This is what we are here to uphold,” Wolsing said.

“The threshold limit for betamethasone is not stated, which means the threshold is 'limit of detection.' We have threshold limitations for some medications. But we do not have threshold limitations for betamethasone.

“I would also add that in our regulations, Class C betamethasone is not divvied up into betamethasone valerate, betamethasone acetate; anything like that. It is just plain betamethasone, in all of its forms, is a Class C medication if it is present in the horse's system above limit of detection on race date,” Wolsing said.

“Now maybe this betamethasone did come from Otomax. Maybe it didn't. But when you look at our regulations, that doesn't make a difference. And when you look at the science, it doesn't make a difference either.”

Just prior to the vote, Wolsing summed up the KHRC's decision about granting a stay as being about, “Do we want to give Mr. Baffert an opportunity to repeat his negligence, or is it appropriate to deny the stay? The decision is yours, but I certainly recommend that the commission uphold Mr. Guilfoil's decision.”

The KHRC did just as their lawyer recommended, and now the case heads back to court for the Mar. 17 hearing. The judge did say Wednesday that the original Mar. 8 effective date for the penalties would not be allowed to go into effect until after he issues his decision Mar. 21.

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KHRC Mum on Medina Spirit, Vows Future Transparency

Against the backdrop of the 2021 GI Kentucky Derby drug positive investigation dragging past the nine-month mark and the Kentucky Horse Racing Commission (KHRC) maintaining a conspicuous silence throughout the drawn-out process, KHRC chairman Jonathan Rabinowitz obliquely referred to the scandal for the first time at an open, public meeting Tuesday.

Although Rabinowitz did not specifically mention Medina Spirit's betamethasone overage or trainer Bob Baffert's long-delayed stewards' hearing that was finally conducted Feb. 14, that controversy was almost certainly the catalyst for the chairman stating that the KHRC is seeking to change administrative regulation 810 KAR 9:010, which deals with the KHRC's hearings, reviews and appeals process.

Rabinowitz said Feb. 15 that regulation “historically precludes the commission from making public statements prior to the issuance of stewards' rulings.”

After Tuesday's meeting, TDN confirmed with the KHRC's general counsel, Jennifer Wolsing, that Rabinowitz was referring to section 1 (4) of that regulation, which states: “Stewards' and judges' hearings shall be closed, and the stewards and judges shall make no public announcement concerning a matter under investigation until the conclusion of the hearing.” (Read the full regulation here).

Rabinowitz said, “This commission is committed to transparency, as well as the best interest of the horsemen, associations, and the racing industry as a whole. As a result, we've begun the process of making significant changes to 810 KAR 9:010 in order to ensure that this commission remains an industry leader in transparent government. It is of the utmost importance to this commission that we get this reg changed.”

Commissioner Bill Landes III was the only KHRC member to follow up on that statement with an opinion.

“Transparency and a more [public] process will allow us to become more effective commissioners in that we will be perceived [that] we care and know what the hell is going on–and that is not necessarily how we are perceived today. This is a breath of fresh air,” Landes said.

Those comments about possible future changes were preceded by a slate of actual KHRC regulation changes, all of which got voted in unanimously during Tuesday's meeting. Because they still need to go through a public notice and approval period at the state level, the following regulations are not expected to go into effect for another seven to nine months:

Allowing a horse to enter a race even when the horse is on the veterinarian's, stewards', or starter's list, provided the horse has a posted “off” date on or before the date of the

race.

Workout requirements for layoff horses: The current regulation states that a horse that has not started in the past 45 days shall not be permitted to start unless it has at least one published workout within 20 days of entry. The new regulation adds requirements for horses that have not started in the past 90 days (two published workouts during the past 90 days, one within 20 days of entry) and for 180 days (three published workouts during the 180 days, one within 20).

Mutuel Couplings: The current regulation states that horses entered in the same race and owned by the same owner shall be joined as a mutuel entry. The revision allows for some flexibility by stating that horses owned by the same owner “may” be joined as a mutuel entry.

Also, the current coupling regulation states that horses having common ties through ownership shall not start in a purse race to the exclusion of a single entity. The proposed revision expands that requirement to include horses with common ties through ownership or training.

Another current regulation states that the racing secretary may uncouple entries having common ties through training to make two separate betting interests. The revision expands that rule include horses with common ties through training or ownership. A trainer entering two horses in a race will have to indicate a preference for one of the horses.

If a coupled horse commits a foul during a race, current regulations may be interpreted to “require” the stewards to include any horses coupled with an offending horse in the penalization. The revision deletes the reference to the coupled horse. Additionally, the revision clearly states that if a horse deliberately interferes in the order of finish for the benefit of another horse with common ties through ownership or training, then both horses may be penalized.

Claiming Regulations: A licensed owner must have made a start within the last 30 days at a Kentucky track in order to be eligible to claim a horse. An authorized agent may act on behalf of an owner who meets the above criteria in order to claim a horse. A “claiming license” will be issued to someone who does not currently own a horse but wants to claim one horse only. After that one claim, the claiming license is rescinded, and the above ownership rules apply.

Also, an owner may only claim one horse from a single race. A trainer may claim as many as two horses from a single race, but only if the horses are claimed for different owners. A claimed horse shall not race outside of Kentucky for 30 days from the date of the end of the meet during which the horse was claimed. That represents a change from the current regulation, which states that a horse can race outside of Kentucky after the close of entries for closing day of the meet.

A claimed horse shall not be sold or transferred within 60 days after the day it was claimed (except via another claiming race). This is a change from the current 30-day regulation.

After the race has been run, a claimed horse shall be delivered to the test barn (or detention barn) for post-race inspection When the horse passes KHRC veterinary inspection, it will be delivered to the successful claimant. The funds for the horse will be available when the horse passes inspection and is delivered to the successful claimant.

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Judge: Extra Testing In Medina Spirit Case Will Go On, Only Question Is Sample Size

At a hearing in Kentucky's Franklin Circuit Court on June 11, Judge Thomas Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample taken from the colt after the Kentucky Derby; the only question will be how much urine an independent lab will have access to.

Counsel for Medina Spirit trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission earlier in the week demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer.

An initial post-race test from Medina Spirit was positive for betamethasone, and that was later confirmed on a split sample test. Attorneys for Baffert and Zedan now want to do further testing on biological samples from the horse in hopes of proving that the betamethasone present came from a topical cream and not an injection, which they say would be permissible under KHRC rules.

Jennifer Wolsing, general counsel for the KHRC, declined to speculate on whether a topical administration of betamethasone would require an exoneration in the case or whether it could be considered a “mitigating circumstance” with regards to penalty. She did point to the commission's drug classification guidelines, which make reference to betamethasone without specifying what form of betamethasone The only question at hand for this proceeding, she asserted, was what was to be done about further testing of the remaining biological samples.

Documents filed by the KHRC on Thursday revealed that in fact, the commission did not refuse requests from Baffert and Zedan to send blood and urine samples for additional testing after the split sample came back positive.

“This is a case about a litigant who will not take 'Yes' for an answer,” began the KHRC's response to the lawsuit.

After the split was positive, the KHRC agreed to release the remains of the primary blood and urine samples to an RMTC-accredited lab chosen by Baffert and Zedan, which was eventually identified during Friday's hearing as New York's Equine Drug Testing Program housed at Morrisville State College. There are four total samples at play here — two primary blood and urine samples, and two split blood and urine samples. Some of the primary blood and urine samples were tested after the race by Industrial Laboratories, which prompted the betamethasone finding in blood. The split blood sample was then sent to University of California-Davis for the split sample analysis. That means the split urine sample has remained in a freezer maintained by the KHRC. It also means each of the two labs may have some biological sample left over after they did their testing.

Industrial packaged portions it had left over of Medina Spirit's primary blood and urine samples and sent them off to New York. It turned out the vial containing the blood shattered, either en route or upon receipt at the New York facility. Since the vial was in the same bag as the urine container, Baffert and Zedan's attorneys voiced concerns that the leaked blood may have contaminated the urine container.

Then, KHRC said, it agreed to send commission equine medical director Dr. Bruce Howard to its freezer and film him opening the unused split urine sample, dividing it, and then have him personally transport a portion of it to the New York lab. When the Baffert/Zedan attorneys objected to the use of Howard, KHRC suggested it could find a substitute staff member and allow one or more team members from Baffert/Zedan counsel to also be present for the thawing and division of the sample. That option was also rejected.

As Wingate eventually determined, the parties agreed Baffert and Zedan should be able to test remaining blood and urine to see whether those samples could prove the origin of the betamethasone. They agreed that both the horse's connections and the commission should have representatives overseeing the move of the samples. Their only real sticking point was how much urine the New York lab should get for testing.

Wolsing argued that the KHRC needed to retain some of the sample, in case future testing should ever be needed.

“This is a situation where really anything could happen,” she said, pointing to the shipping issues with the blood sample as proof that it's a good idea to have some sample retained somewhere just in case.

Craig Robertson, attorney for Baffert, said he didn't want to restrict the New York lab to use a set amount of urine, since he didn't want them to be in any way limited in the quality of their testing.

The size of the split urine sample is estimated to be between 25 and 27 milliliters. Wingate said he would enter an order in the middle of next week requiring at least 3 milliliters to be kept by the KHRC, with the hope the two parties could agree to something privately before then.

Wingate did press Wolsing somewhat on the question of whether all of this will end up mattering — meaning, will the outcome of these tests impact whether or not Medina Spirit is disqualified. Wingate said that while he had not reviewed KHRC code, his initial feeling was that it wouldn't make much difference if the form of betamethasone Medina Spirit received did or didn't impact performance. Wingate also presided over the lengthy civil suit of Graham Motion, who fought a drug positive for methocarbamol. Wingate had overruled the KHRC in that case and was later reversed on appeal. He felt the methocarbamol did not influence the outcome of the race in question, but that the appeals court made it clear the rules did not allow for a determination about a substance's influence on race results.

“It's going to be very hard for this court to overturn [a potential ruling against Medina Spirit connections] based upon the Graham Motion case,” said Wingate, who clarified he was not pre-judging the Baffert case. “That's the way I look at it. I'm not prejudging it, but I've already dealt with the Graham Motion, which I thought was very unfair to Mr. Motion, I really did.”

Baffert did appear at the proceedings, which were held via video conference, but did not speak.

See the proceedings here:

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