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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Judge Dismisses Baffert’s Lawsuit Against NYRA

A federal judge on Friday dismissed Bob Baffert's lawsuit against the New York Racing Association (NYRA) that had alleged the Hall of Fame trainer was injured by NYRA's initial attempt to bar him back in May and again in September when it summoned him to a hearing to adjudicate his “detrimental” conduct related to repeated equine drug positives.

Chief among the reasons that United States District Court (Eastern District of New York) Carol Bagley Amon dismissed the amended complaint were that some of Baffert's claims were not yet “ripe” for a federal court to rule upon them because Baffert has yet to have the NYRA exclusionary hearing that is scheduled to begin Monday, Jan. 24.

Amon also wrote that Baffert could not substantiate his claim that NYRA's actions against him amounted to wrongful interference with his business relationships–such as owners who might have moved horses out of his care–because NYRA's actions were directed at Baffert, and not his clients.

“Baffert fails to explain how a state actor's truthful claims reporting a suspension are criminal or independently tortious,” Amon wrote. “Even though the underlying suspension was allegedly unlawfully undertaken, NYRA's statements about that suspension were entirely accurate and do not constitute a crime or tort.”

Asked via email to comment on the Jan. 21 court order on his client's behalf, Baffert's attorney, W. Craig Robertson III, wrote the following:

“The primary purpose of the federal court action was to obtain an injunction prohibiting NYRA [from] suspending Mr. Baffert without due process of law. We were successful in that regard and Judge Amon issued such an injunction [back in July that preliminarily lifted his suspension]–which she has now made permanent.

“As it pertains to our claims related to the renewed efforts by NYRA to suspend Mr. Baffert, Judge Amon has instructed us that we need to go through that [Jan. 24 hearing] process to see if NYRA actually affords the due process it is legally obligated to provide.”

“While we are skeptical NYRA will do as required given its past conduct, we will go through the hearing as instructed by the Judge. Should NYRA not act fairly and in accordance with the law, we will have the right–and we will be prepared–to once again return to Court to seek justice,” Robertson concluded.

Patrick McKenna, NYRA's vice president of communications, countered with the following emailed statement:

“NYRA is gratified by Judge Amon's decision to dismiss Mr. Baffert's lawsuit in its entirety. 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. In furtherance of that goal, the NYRA administrative hearing will begin on Monday morning.”

NYRA had banished the seven-time GI Kentucky Derby-winning trainer 16 days after now-deceased Medina Spirit tested positive for an overage of betamethasone while winning the May 1, 2021, Derby. 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 allowed him to race at New York's premier tracks until his lawsuit got adjudicated in full.

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. On Sept. 10, NYRA then summoned Baffert to appear at an exclusion hearing now scheduled for Jan. 24.

Baffert first 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. When those requests were denied, he amended his original complaint to try and keep the hearing process from moving forward.

That amended complaint was the subject of Amon's order on Friday.

By changing the injunction over Baffert's initial May suspension from “preliminary” to “permanent,” Amon wrote that the civil rights aspect of Baffert's initial complaint is now “fully resolved.”

That left five counts in the amended complaint to be adjudicated. Amon sided with NYRA by dismissing all of them.

NYRA had argued that one of the counts should have been dismissed related to a legal term called the “Younger abstention,” which is a doctrine that mandates federal courts must not hear cases involving federal issues already being decided at the state level.

“Younger abstention is appropriate here,” Amon wrote, noting that NYRA's upcoming administrative proceeding qualifies as a “civil enforcement” proceeding.”

“A Younger-eligible civil enforcement proceeding can be a proceeding or hearing in front of an agency or committee tribunal; it does not need to take place in state court…” Amon wrote.

“NYRA's administrative proceedings resemble criminal prosecutions in the important respects identified in [a precedent],” Amon wrote. “First, the purpose of the proceeding is to determine if Baffert should be sanctioned for alleged wrongdoing…”

“Second, NYRA initiated the proceedings as a state actor. Baffert argues that NYRA cannot call itself a state adjudicative body because it has previously argued that it is not a state actor. Notably, Baffert does not argue that NYRA is not a state actor, since any such argument would be fatal to his [civil rights] claim…”

“Third, NYRA's proceeding was preceded by an investigation that culminated in the filing of formal charges,” Amon wrote. “Baffert does not dispute that the Statement of Charges qualifies as formal charges. Instead, he argues that NYRA failed to conduct a satisfactory, independent investigation before bringing those charges. That argument is not persuasive.”

As for the “ripeness” issue, Amon wrote: “Courts considering prudential ripeness ask first 'whether an issue is fit for judicial decision' and second 'whether and to what extent the parties will endure hardship if decision is withheld.'

“Baffert alleges that proceeding with the hearing violates his due process rights. And as in [a precedent] it is not yet clear that the hearing will deprive Baffert of any property interest. Although Baffert argues that NYRA has targeted Baffert for disparate treatment and that the hearing presents a 'fait accompli' of suspension, the September 10th Letter does not suspend Baffert. 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 whether to suspend Baffert.

Amon also wrote that Baffert did not successfully argue that dismissing his case would cause him significant harm.

“If having to participate in an ongoing administrative hearing counted as per se hardship, courts would routinely find claims ripe while administrative hearings are ongoing,” Amon wrote.

Baffert had argued that even the specter that he might be suspended from racing in New York had caused his business “significant injury.”

But Amon wrote that his amended complaint “does not include allegations that the [letter summoning him to a hearing] has injured his business.”

Amon added that, “Baffert alleges that one client [WinStar Farm] moved its horses because of the May suspension, and that other owners 'have indicated that they may have to move their horses away from Baffert if he cannot race in New York.'

“These allegations do not indicate that Baffert will suffer any business injury from the ongoing hearing now that his original suspension has been lifted. And Baffert has provided no

other evidence indicating an injury accruing from the specter of suspension,” Amon wrote.

Amon wrote that courts can't be expected to be constantly reviewing whether or not the “cloud of official investigation” harms someone's business, because reviewing every such claim of harm would disrupt the administrative process and add to “already overcrowded court dockets.”

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Judge Dismisses Baffert Contempt Claim Against NYRA

BROOKLYN, NY–Judge Carol Bagley Amon dismissed Bob Baffert's charge of contempt against the New York Racing Association Tuesday morning in federal court, saying that her previous injunction of NYRA's attempted suspension of Baffert in May applied only to enforcing that suspension, and not the issue at hand of NYRA scheduling a hearing and issuing official charges against Baffert in a Sept. 10 statement. The ruling clears the way for NYRA to proceed with its proposed hearing process, which is scheduled to begin Oct. 11 and may result in Baffert once again being suspended from racing at NYRA tracks.

Baffert's attorney Craig Robertson attempted to argue that NYRA only created rules and procedures for giving a Baffert hearing after the fact in an attempt to suspend Baffert for the same reasoning as it had in May. Amon dismissed that argument, interrupting Robertson several times to note that a hearing process for Baffert is legally separate from NYRA's enjoined May 17 attempt to suspend him.

“That suspension is no longer in effect,” she said. “I don't know how you can read that [injunction] order to say they cannot now proceed with a hearing. They're not seeking [to suspend him], they're simply seeking to give him a hearing. What was enjoined was the fact that they suspended him without a hearing … I didn't reach a merits decision as to [the suspension]. What I said was that your client was entitled, before someone decided to suspend him, to put forth his answers to all of the charges that they had brought. He can do that now.”

Robertson again tried to argue that NYRA was creating “ex post facto” rules for its original suspension, but Amon again interrupted to say, “No, they're not, because this is a whole new proceeding. You're missing the import of the court's original order … The lawsuit that you brought dealt with a suspension in May … This is an entirely different scenario.”

Robertson returned to his argument that the reasoning behind the scheduled hearing process and potential resulting suspension for Baffert is the same as it was for NYRA's initial attempt to suspend Baffert, to which Amon said, “What difference does that make? We're talking about contempt here. I did not make a ruling that their reasons were invalid in the last hearing, I said he should get a chance to answer [the charges] … They are giving him the opportunity to address all of this.”

Robertson then pivoted to criticizing the nature of NYRA's proposed due process hearing, saying, “They have said, 'Here is your due process, Mr. Baffert. You can have a hearing in front of a hearing officer we appoint. That hearing officer then makes recommendations to a panel that we appoint, and that [NYRA CEO] Mr. [David] O'Rourke appoints. And Mr. O'Rouke has already submitted multiple affidavits in this case in support of the suspension of Mr. Baffert. That panel that Mr. O'Rourke appoints then can do whatever they want, impose whatever penalty they want, and then you have no right of appeal.'”

Amon was more sympathetic to that argument but ultimately found it unrelated to the case in front of her, saying, “I understand your point on that … But I don't know that at this point in time, I [can] prejudge something that hasn't happened yet, particularly in the context of this lawsuit, which pertains to the May 17 suspension, not something that may happen in the future.”

Robertson then argued that NYRA had no rule on the books justifying a suspension for offenses occurring outside of New York, saying “they've now made that rule up,” but Amon shot that down as well, saying, “That's a different lawsuit. That's not this lawsuit.”

Chiming in for the first time, NYRA attorney Henry Greenberg said, “A contempt proceeding is not an appropriate vehicle to raise issues, either procedural or substantive, [about] the hearing. Those arguments should be raised before the hearing officer, retired [New York State] Supreme Court Justice Peter Sherwood, a distinguished jurist, who the Court can be confident and certain will provide a fair, impartial, neutral proceeding for opposing counsel. Those arguments, all of which we address in our paper on the merits, respectfully, are not appropriately heard [here].”

Greenberg then referenced Robertson's opening statement that he did not want to be in court Tuesday but was left with no choice due to NYRA's actions, and said that, to the contrary, NYRA was providing precisely what the earlier injunction directed them to.

“When opposing counsel says he had no choice but to bring this proceeding … In fact, what NYRA is doing today by this administrative proceeding is providing exactly–exactly–what he argued he was entitled to. When [the] July 14 order from the Court was issued, your Honor, NYRA took every word, every syllable. It provided–although that wasn't the intent, perhaps–it provided us guidance about how we could establish a due process mechanism that would allow us to fairly provide the accused to tell their side of the story.”

NYRA also pushed back against the notion that it was creating a retroactive process simply to enforce its original suspension against Baffert, noting that it has also scheduled hearings and issued charges for disgraced trainer Marcus Vitali.

“The problems that we are addressing are not limited to Mr. Baffert,” Greenberg said. “On the same day that we brought the proceeding against Mr. Baffert, we brought it against another trainer, a gentleman by the name of Marcus Vitali, and selected a retired Court of Appeals judge to preside over the proceeding … I leave the Court with the thought that NYRA has taken to heart the guidance and analysis contained in your decision, is committing to this Court that our faithfulness and fidelity to due process will be observed. Mr. Baffert will be given a punctilious compliance with a due process hearing.”

As the proceeding wound down, Robertson left the door open to amending his complaint before disputing what he said was NYRA lumping Baffert in with Vitali.

“To the extent that the Court believes I need to amend my complaint, I would ask for leave to do that, number one,” he said. “Number two, I want to make sure the record is clear, comparing Mr. Baffert to Mr. Vitali is comparing apples to oranges. They have only brought a proceeding against Mr. Vitali to give them cover. Mr. Vitali has a history of 84 drug violations, animal cruelty charges, numerous license suspensions throughout the East Coast and in fact, at one point in time was charged with when investigators came to his barn, running to a refrigerator, grabbing a bubble-wrap bag out of a refrigerator and running off. To compare the two, it's not without import. It has no merit.”

Robertson concluded by saying of a potential future suspension of Baffert by NYRA, “It's the same suspension. The only thing that's changed is the date on the letterhead.” But Amon was unmoved.

“The plaintiff has not proved clearly and convincingly that the September statement of charges violates the July 14 order,” the judge said in her official ruling. “The plaintiff mischaracterizes that order as enjoining NYRA from suspending Baffert for the reasons set forth in the May 17 letter until the conclusion of this case. But the text of the July 14 order bars the defendant only from enforcing the May 17 suspension. It says nothing about the May 17 letter's reasoning … This is not a case in which the Sept. 10 statement of charges can be equated to the May 17 suspension, because there had been significant and material alterations. Unlike the summary suspension ordered in the May 17 letter, the Sept. 10 letter does not suspend Baffert without a hearing. Sept. 10 proceedings create a hearing to consider a possible suspension, not to implement one. And unlike the May 17 suspension, the Sept. 10 statement of charges brings with it a full hearing, evidentiary disclosures, the standard of proof, an impartial hearing officer [and a] right to appeal any decision by the hearing officer to a panel. As [NYRA] counsel has pointed out, contempt proceedings are not a proper vehicle to challenge later actions. So I'm going to deny the request for a stay at this point.”

NYRA was quick to issue a statement praising the decision. “Earlier today, Judge Carol Bagley Amon denied Mr. Baffert's motion seeking to hold NYRA in civil contempt and to stay the administrative hearing,” said Patrick McKenna, Senior Director of Communications for NYRA. “We are gratified by the court's decision allowing NYRA to move forward with its administrative hearing against Bob Baffert. The court found that NYRA's actions were consistent with both the letter and spirit of the July 14 order. NYRA's focus in this matter is protecting the integrity of the sport of Thoroughbred racing in accordance with the requirements of due process.”

Robertson said afterward, “I'm disappointed. But the injunction remains in place and Mr. Baffert is still able to race in New York. We will review the court's ruling and determine next steps.”

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Baffert Alleges NYRA Violating Court Order in ‘Sham Hearing’ Attempt

Trainer Bob Baffert filed a motion Wednesday asking a federal judge to hold the New York Racing Association (NYRA) in civil contempt for trying to schedule a hearing under its newly created exclusionary procedures that could once again bar him from participating at NYRA's tracks.

The basis for the contempt allegation is NYRA's “failure to comply with the terms of the Court's July 14, 2021, Memorandum & Order enjoining it from enforcing its unlawful suspension of Baffert from New York racetracks.”

According to a Sept. 22 filing by Baffert's legal team, “NYRA seems to believe now that it can simply offer a sham hearing and get around the Court's ruling by creating rules after the fact.”

The seven-time GI Kentucky Derby-winning trainer with a history of highly publicized equine drug violations wants the court to issue an order “staying NYRA's renewed attempt to suspend him.”

Baffert is also requesting that the court “admonish NYRA for its behavior” and immediately order it to 1) Cease and desist from all conduct concerning or relating in any way to any suspension of Baffert until after the full conclusion of the case; 2) Order NYRA to pay a $5,000 fine for each day that it does not comply with the court's directives; 3) Reimburse Baffert for his attorneys' fees and court costs related to the new motion for contempt.

“Baffert's requests are reasonable given that NYRA's violations were plainly taken in bad faith,” the trainer's legal team wrote. “The Court has already warned NYRA concerning its efforts to suspend Baffert indefinitely and without due process of law. Clearly, and despite the existing injunction, NYRA believes it may nonetheless disregard any traditional constitutional safeguards and proceed however it wants. This behavior is precisely what Baffert's injunction was intended to halt.”

Patrick McKenna, NYRA's communications director, told TDN via email that all actions taken by NYRA have been in compliance with court orders.

Wednesday's filing is the latest salvo in the increasingly litigious saga that began May 17 when NYRA informed Baffert via letter that he was temporarily not welcome to stable or race at Saratoga Race Course, Belmont Park and Aqueduct Racetrack because of his string of recent equine drug positives.

NYRA's banishment came 16 days after the Baffert-trained Medina Spirit (Protonico) tested positive for betamethasone after the colt won the GI Kentucky Derby. Even though that case has still not resulted in any Kentucky ruling against Baffert, in the 12 months prior to Medina Spirit's positive, four other Baffert trainees also tested positive for banned substances, two of them in Grade I stakes.

Baffert responded June 14 by filing a civil complaint alleging that the NYRA ban violated his constitutional right to due process.

On July 14, the eve of the lucrative Saratoga season, Judge Carol Bagley Amon of United States District Court (Eastern District of New York) granted Baffert a preliminary injunction that allowed him to race at New York's premier tracks until the lawsuit was adjudicated.

But 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.”

In the wake of that ruling, NYRA has since drafted and distributed a new set of rules and procedures for holding hearings and issuing determinations designed to suspend licensees who engage in injurious conduct.

After those rules were made public, NYRA, on Sept. 10, wrote a letter summoning Baffert to appear at a video conference hearing Sept. 27. (Separately, NYRA had already moved for dismissal of the entire lawsuit).

On Tuesday, Baffert's legal team submitted a letter to the judge that gave notification that a contempt filing was imminent. That letter also asked for a pre-motion hearing on the subject.

But Judge Amon–as she has already done once in this case when NYRA's attorneys made a similar request for a pre-motion hearing on another matter–nixed the idea of adding another time-consuming appearance to the growing court docket in this case.

In a handwritten note penned atop the Sept. 21 letter from Baffert's legal team, Amon wrote that there would be no pre-motion conference, and that Baffert's attorneys instead had to file any “contempt” motion by 10 a.m. Sept. 22. NYRA then would have one week to respond to it.

The Wednesday filing emphasizes three key points for why the judge should find NYRA in contempt: “A) The Court's Order is clear and unambiguous…B) NYRA's recent actions are clear and convincing evidence of noncompliance with the Court's Order…C) NYRA's actions are not an attempt to comply in a reasonable manner.”

Baffert's filing also alleges that NYRA isn't even following the procedures outlined in its just-implemented hearing process.

“[NYRA's] newly created rules make clear that the notice of hearing is required to include the 'proposed penalty being sought.' Nothing in its 12-page letter and notice to Baffert makes any reference to the length of the suspension NYRA seeks to impose. The Court has already found this to be problematic…. This is the exact same thing NYRA seeks to do again-impose an indefinite suspension…All of these deficiencies in NYRA's newly implemented procedures indicate why due process is so important…

“Further, Baffert cannot reasonably expect a fair proceeding when NYRA controls the outcome of the hearing, refuses to tell him what punishment he may face and gives him no right to appeal. Due process plainly requires 'notice and an opportunity to be heard at a meaningful time and in a meaningful manner,'” the filing continues. “None of those basic components have been met here, which is the entire reason Baffert brought this action against NYRA in the first place.”

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