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KHRC Denies Baffert a Stay of Suspension

The Kentucky Horse Racing Commission (KHRC) has denied trainer Bob Baffert's request for a stay of a 90-day suspension handed down to him earlier in the week for Medina Spirit (Protonico)'s betamethasone positive in the 2021 GI Kentucky Derby. The KHRC also denied a stay of its decision to disqualify Medina Spirit from first place in last year's GI Kentucky Derby.

The Louisville Courier Journal and the Daily Racing Form were among the first to report the story. In most circumstances, once a trainer or owner has appealed a racing commission decision, stays of a suspension are a formality and they remain in place throughout the appeal process. Craig Robertson, one of two lawyers working on the Medina Spirit case for Baffert and owner Amr Zedan, told the Courier Journal that a denial of a request for a stay “is unprecedented in my experience.”

The KHRC's decision will force the Baffert legal team to head to the courts in an effort to receive a temporary restraining order that would force the KHRC to put the suspension on hold.

“Denial of the stay is consistent with arbitrary and capricious manner in which the stewards have ignored the facts and law in this manner,” said Baffert's other attorney, Clark Brewster. “Fortunately, we will soon procedurally eclipse the biased actors and have the ear of adjudicators that adhere to the rule of law instead of man.”

According to the DRF, a letter signed by Marc Guilfoil, the executive director of the KHRC, was sent to Brewster and Robertson in which Guilfoil wrote: “I do not find good reason to grant a stay.” Guilfoil also wrote: “your clients have the right to petition for a review of this decision.”

At present, Baffert is under a suspension that will prevent him from entering any horses in the Derby or any other races at Churchill Downs and Churchill Downs-owned tracks. His status at the NYRA tracks remains up in the air as NYRA has granted Baffert a hearing, which may be a precursor to it also suspending him. A decision in the NYRA matter has not yet been announced.

But the Churchill ban and the potential NYRA ban are not reciprocal and do not have to be recognized by other racetracks. Prior to his being suspended by the KHRC, nothing stood in the way of Baffert competing in the GI Preakness S. or in the Derby preps at Oaklawn Park, Santa Anita and elsewhere.

But if his lawyers are unable to get a court to go against the KHRC's decision, Baffert's stable will have to shut down completely, with the suspension set to begin on Mar. 8.

There's little doubt that the KHRC is determined to play hardball with Baffert. Though it took nine months to even hold a hearing into the matter, once the wheels were set in motion, Baffert was quickly suspended and given 90 days rather than a lesser penalty. The KHRC based the 90-day suspension on Baffert having had four drug violations within a 365-day period. In making their decision, the stewards representing the KHRC dismissed the contention from Baffert's side that the betamethasone got into the horse's system through an ointment, which, they argued, is not a violation of the rules. Denying a stay is the latest sign that the KHRC is not going to back down.

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Baffert, Horseplayers Spar Anew in Class-Action Derby Suit

Monday's ruling by the Kentucky Horse Racing Commission (KHRC) that disqualified Medina Spirit from the 2021 GI Kentucky Derby has now triggered dueling letters to the federal judge overseeing the class-action case in which a group of bettors are suing trainer Bob Baffert for allegedly engaging in a years-long pattern of racketeering based on his purported “doping” of Thoroughbreds.

The plaintiffs in the case, led by Michael Beychok, the winner of the 2012 National Horseplayers Championship, on Feb. 22 filed a letter in United States District Court (District of New Jersey) informing the judge that Medina Spirit was disqualified for a betamethasone overage and that Baffert was suspended for 90 days and fined $7,500.

On Feb. 23, Baffert's lead attorney, W. Craig Robertson, III fired back with his own letter alleging that the public filing by the plaintiffs was “inappropriate, misleading, and, most importantly, irrelevant to the Defendants' Motion to Dismiss which is currently pending before the Court.”

Robertson also wrote that the KHRC's decision is not a final ruling, because Baffert plans to appeal it.

“While the final status of Medina Spirit's Kentucky Derby win is far from decided, whether or not the horse is disqualified makes no difference when it comes to the legal issues argued in [Baffert's motion to dismiss the case]. Simply put, Plaintiffs' letter does nothing to rebut the overwhelming authority that the Plaintiffs, a group of disgruntled gamblers, cannot maintain this action as a matter of law.”

The original version of the lawsuit was filed four days after Baffert's disclosure that now-deceased Medina Spirit had tested positive for betamethasone after winning the May 1, 2021, Derby. Baffert, plus his incorporated racing stable, are the defendants.

The class members of the suit have alleged that they were “cheated out of their property” because they placed wagers on other horses and betting combinations that would have paid off had “the drugged horse” not won the Derby.

The plaintiffs' letter Tuesday would seem to indicate that they want the judge to consider the KHRC's Feb. 21 decision to DQ Medina Spirit when ruling on Baffert's currently active motion to dismiss the suit.

Baffert's lawyer underscored that the KHRC ruling should have no bearing on the matter that is currently before the court, which is the motion to dismiss the suit.

“[Baffert] moved to dismiss this matter based on the following legal grounds: (1) lack of personal jurisdiction over the Defendants and improper venue; (2) Plaintiffs' lack of standing to bring their claims; and (3) the failure of the Amended Complaint to state a valid claim under civil RICO or state law. The recent Stewards' Ruling has no impact on any of these legal arguments.

“First, it does not magically create jurisdiction over the Defendants who are based in California and raced Medina Spirit in Kentucky.

“Second, the Stewards' Ruling is preliminary and there is already a proceeding underway before the KHRC to review that ruling since it is not a final decision of the administrative agency. Only now will the matter undergo a full blown Administrative Hearing, including discovery and depositions.

“Thereafter, any ultimate ruling of the KHRC may be appealed to Kentucky's state courts. Thus, we are a long way away (likely several years) from any final decision concerning Medina Spirit's status.”

Robertson continued: “Of particular importance, even if Medina Spirit is ultimately disqualified, the Plaintiffs' claims fail as a matter of law. Among other reasons, this is because the rules of racing provide that pari-mutuel wagering is unaffected by any disqualification. The Stewards' Ruling which the Plaintiffs provided to the Court recognizes this fact when it specifically states 'Pari-mutuel wagering is not affected by this ruling.'

“Plaintiffs' argument that a disqualification somehow creates a compensable injury has been addressed and roundly rejected [in precedent cases]. [T]he case law could not be more clear that, among other things, gamblers with gambling losses are simply not within the class of individuals those laws are designed to protect,” Robertson wrote.

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Equine Law Expert Bob Heleringer Talks Medina Spirit Ruling On Writers’ Room

This week, 296 days after the race was run, the Kentucky Horse Racing Commission ruled on the case of the 2021 GI Kentucky Derby, officially disqualifying winner Medina Spirit (Protonico) and elevating Mandaloun (Into Mischief) into first place. Additionally, the KHRC suspended trainer Bob Baffert for 90 days and Baffert's legal team quickly promised appeals to an administrative law judge. Bob Heleringer, a lawyer, law professor and the author of “Equine Regulatory Law”, joined the TDN Writers' Room presented by Keeneland Tuesday as the Green Group Guest of the Week to discuss the merits of the KHRC's decision, whether Baffert horses will ultimately be able to run in this year's Derby and more.

Asked if Baffert has any argument for an appeal despite the drug overage being confirmed and against the rules, Heleringer said, “The regulatory side of this is different from the judicial side of it. The regulatory side tries to have [rules] in the starkest colors with no room for prevarication or obfuscation. They don't want these cases bogging down and getting away from the absolute part of the rule. So it's only when it moves to the judicial forum that there's a possible chance of some kind of prevarication as to why the rules should not strictly apply. And they'll base that on due process grounds, whether or not you're violating [Baffert's] rights if you take it to the absolute level that the regulatory people have. That's an argument that both of these Circuit Court judges in Frankfort will at least listen to.”

Baffert also has an interest in overturning the KHRC's suspension so that he can potentially run horses in the Derby, but he also would have to win an appeal against Churchill Downs Inc.'s two-year suspension of him, and he hasn't officially filed anything yet in that case. Heleringer was asked what Baffert's chances of racing in the Derby are.

“Right now, his chances are zero,” he said. “I'm kind of perplexed, like some other people, that he hasn't filed such a challenge yet. Maybe that's forthcoming, but it hasn't happened yet and time is dwindling. It looks like most of his owners have stayed with him, but these horses are winning significant races and not racking up any [Derby qualifying] points. Churchill Downs is resolute. So at some point, he's going to have to seek judicial intervention of some kind. It's going to get very interesting.”

Elsewhere on the show, which is also sponsored by Coolmore, West Point Thoroughbreds, XBTV, the Pennsylvania Horse Breeders Association and Legacy Bloodstock, the writers reacted to The Jockey Club backing off of its 140-mare cap, appreciated a few performances from Saturday's Fair Grounds card and discussed the implementation of Category 1 interference rules in America. Click here to watch the podcast; click here for the audio-only version or find it on Apple Podcasts or Spotify.

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Weekly Stewards and Commissions Rulings: Feb. 15-21

Every week, the TDN publishes a roundup of key official rulings from the primary tracks within the four major racing jurisdictions of California, New York, Florida and Kentucky.

Here's a primer on how each of these jurisdictions adjudicates different offenses, what they make public (or not) and where.

California

Track: Santa Anita
Date: 02/18/2022
Licensee: Jonathan Wong, trainer
Penalty: $500 fine
Violation: Late declaration
Explainer: Trainer Jonathan Wong, who was scheduled to start She Said Yes in the third race at Santa Anita Park on Feb. 13, 2022, is fined $500.00 for violation of California Horse Racing Board rule #1629 (Penalty for Late Declaration–didn't want to run).

Track: Santa Anita
Date: 02/19/2022
Licensee: Derek Lawson, jockey agent
Penalty: $500 fine
Violation: Business conduct
Explainer: Jockey Agent Derek Lawson, is fined $500.00 pursuant to California Horse Racing Board rule #1530 (Cases Not Covered by Rules and Regulations–failure to conduct business in a proper manner) on Feb. 13, 2022 at Santa Anita Park.

Track: Santa Anita
Date: 02/19/2022
Licensee: Tim McCanna, trainer
Penalty: $400 fine
Violation: Late Lasix registration
Explainer: Trainer Tim McCanna is fined $400.00 for violation of California Horse Racing Board rule #1845 (Authorized Bleeder Medication–late registration) of GEA in the first race on Feb. 18, 2022, at Santa Anita Park.

Track: Santa Anita
Date: 02/19/2022
Licensee: Victor Espinoza, jockey
Penalty: $500 fine
Violation: Excessive use of the crop
Explainer: Jockey Victor Espinoza is fined $500.00 for violation of California Horse Racing Board rule #1688(b)(8) (Use of Riding Crop–more than six times) during the seventh race at Santa Anita Park on Feb. 18, 2022.

Track: Santa Anita
Date: 02/19/2022
Licensee: Abel Cedillo, jockey
Penalty: Three-day suspension
Violation: Careless riding
Explainer: Jockey Abel Cedillo, who rode Dream Robber in the second race at Santa Anita Park on Feb. 18, 2022, is suspended for three racing days (Feb. 26, 27 & Mar. 4, 2022) for altering course without sufficient clearance shortly after the start and causing interference. This constitutes a violation of California Horse Racing Board rule #1699 (Riding Rules – Careless Riding). Pursuant to California Horse Racing Board rule #1766 (Designated Races), the term of suspension shall not prohibit participation in designated races.

Track: Santa Anita
Date: 02/20/2022
Licensee: Jose Luis Delgadillo, jockey
Penalty: N/A
Violation: N/A
Explainer: Jockey Jose Luis Delgadillo having now complied with a testing agreement with the California Horse Racing Board (submitted negative test) is deemed eligible for licensing. Ruling #92 issued on May 15, 2021, at the Los Angeles Turf Club, Inc. is hereby set aside. Further Jose Luis Delgadillo shall remain on a testing agreement as long as he is licensed in California.

New York

Track: Aqueduct
Date: 02/19/2022
Licensee: Ralph D'Alessandro
Penalty: $500 fine
Violation: Poor business practice leading to scratch
Explainer: Mr. Ralph D'Alessandro has been fined the sum of $500.00 for failing to tend to business in a proper manner necessitating a scratch in the first race at Aqueduct racetrack on Feb. 19, 2022.

Kentucky

Track: Turfway Park
Date: 02/21/2022
Licensee: Bob Baffert, trainer
Penalty: $7,500 fine and 90-day suspension
Violation: Medication violation
Explainer: Upon receipt of notification from Industrial Laboratories, the official testing laboratory for the Kentucky Horse Racing Commission, and confirmed at University of California, Davis (Laboratory No: 210525-424136), sample number E427258 taken from Medina Spirit, who finished first in the 12th race at Churchill Downs on May 1, 2021, contained betamethasone in blood (Class C drug) (fourth medication violation in 365 days in any racing jurisdiction). After a formal hearing before the Board of Stewards Robert A. Baffert is hereby suspended 90 days, Mar. 8, 2022 through June 5, 2022 (inclusive) and fined seven thousand five hundred ($7,500) dollars. Medina Spirit is disqualified and all purse money forfeited. Pari-mutuel wagering is not affected by this ruling. During his suspension Mr. Baffert is denied the privileges of all facilities under the jurisdiction of the Kentucky Horse Racing Commission. Entry of all horses owned or trained by Mr. Baffert is denied pending transfer to persons acceptable to the stewards. Upon receipt of this ruling, it is required within thirty (30) days to pay any and all fines imposed to the Kentucky Horse Racing Commission. Failure to do so will subject the licensee to summary suspension of license pursuant to 810 KAR 3:020 Section 15 (cc).

Track: Turfway Park
Date: 02/21/2022
Licensee: Amr Zedan, owner
Penalty: Disqualification and purse money forfeiture
Violation: Medication violation
Explainer: Upon receipt of notification from Industrial Laboratories, the official testing laboratory for the Kentucky Horse Racing Commission, and confirmed at University of California, Davis (Laboratory No: 210525-424136), sample number E427258 taken from Medina Spirit, who finished first in the 12th race at Churchill Downs on May 19 2021, contained betamethasone in blood (Class C drug). Amr F. Zedan was present at a formal hearing before the Board of Stewards. MEDINA SPIRIT is disqualified and all purse money forfeited. Pari-mutuel wagering is not affected by this ruling. All purse monies must be returned to the association. The purse of this race is ordered redistributed.

This ruling is pending appeal, more about which can be read here.

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