The Week in Review: Latest Crisis Descends on Sport, Baffert

The week between the GI Kentucky Derby and the GI Preakness S. is typically a quiet one, and this year the racing industry was basking in the glow of an exciting and safe Derby headlined by a feel-good story: Medina Spirit (Protonico), a hard-battling underdog any average joe could have purchased at public auction as a $1,000 yearling, had unexpectedly won the Run for the Roses under the care of seven-time Derby-winning trainer Bob Baffert, and was heading to Baltimore as a likeable overachiever trying to win the second jewel of the Triple Crown.

But the sport's pre-Preakness idyll was abruptly launched into turmoil and chaos Sunday morning, absorbing yet another credibility blow when a clearly rattled Baffert stepped up to a cluster of microphones at a hastily called press conference at his Churchill Downs stable to announce that Medina Spirit had tested positive for 21 picograms of betamethasone, a relatively common corticosteroid that is used with horses to treat inflammation in joints.

Betamethasone is typically administered by intra-articular injection, but is prohibited to be in a horse's system on race day in Kentucky, which lists a 14-day withdrawal guideline for that steroid's use.

If confirmed by split-sample testing, the betamethasone finding could cost Medina Spirit his Derby win, which would make the colt only the second Derby victor in 147 years to be disqualified for a post-race drug infraction. In 1968, Dancer's Image was DQ'd for a phenylbutazone positive.

Baffert, who repeatedly denied ever treating Medina Spirit with betamethasone during the 13-minute conference and added that the colt had passed an Apr. 18 out-of-competition test, now appears on a trajectory to have his figurative “day in court” to adjudicate the matter.

In reality though, that time frame could extend much, much longer–it took five full years before the controversial DQ of Dancer's Image was finally upheld by a judge, and that was half a century ago in a far less litigious era.

Expect this story to hang heavily over the remainder of the 2021 Triple Crown season and beyond.

From a public-relations perspective, Baffert's relatively quick acknowledgment of the betamethasone finding resonated as a carefully executed, almost textbook-styled example of damage control and how to shape a fast-forming narrative during a time of duress. If he has professionals guiding him in this endeavor, they are earning their money.

Accompanied by his attorney just outside his shed row Sunday morning, Baffert got out in front of the news (the test results had not yet been announced by the Kentucky Horse Racing Commission), professed his innocence with a touch of emotion (“the biggest gut punch in racing for something that I didn't do”), and asserted that he'd be cooperative and transparent as the investigation unfolds (even conducting his own DNA and hair testing on Medina Spirit). Then Baffert chose to implicate circumstances as the hazy, underlying culprit in the case (“I don't know what is going on with the regulators…. It's a complete injustice…. It's getting worse, and this is something that has to be addressed by the industry.”).

Unfortunately–for both himself and the sport–Baffert has had ample practice of late in explaining troublesome medication matters to the media.

The betamethasone finding, if confirmed, will be Baffert's fifth positive test for a regulated but prohibited-on-race-day drug within the past year. During that same time frame, Baffert was also embroiled in a long and complicated court and racing commission battle in California over whether to disqualify 2018 Triple Crown winner Justify from that year's GI Santa Anita Derby because of a scopolamine finding, a case that was initially shielded from the public in executive sessions by the California Horse Racing Board (CHRB).

The Justify complaint (deemed to have been caused by eating contaminated hay) was eventually dismissed by the CHRB.

A pair of May 2, 2020, lidocaine positives in two winning Baffert trainees–Charlatan (Speightstown) in the GI Arkansas Derby and Gamine (Into Mischief) in an allowance race–were blamed by Baffert on accidental contamination from a human pain-relief patch worn by his assistant. This initially resulted in a 15-day suspension for Baffert and the DQ of both horses, but those sanctions were recently reversed by the Arkansas Racing Commission, which instead fined Baffert $5,000 for each infraction.

The Baffert-trained Merneith (American Pharoah), tested positive for dextorphan after a second-place finish July 25, 2020, at Del Mar. That positive drew a $2,500 fine; Baffert claimed that a stable employee taking cough suppressants inadvertently contaminated the horse.

When Gamine again tested positive on Sept. 4, 2020, this time for betamethasone when running third in the GI Kentucky Oaks, she was disqualified, placed last, and Baffert was fined $1,500. Baffert later acknowledged the eventual champion female sprinter had been treated with the drug, but he believed he had followed the proper withdrawal-time guidelines.

Reality versus public perception will no doubt percolate to the surface as Medina Spirit's case winds through the regulatory hierarchy and (quite likely) the legal system. One argument that is almost certain to be brought up in support of Baffert is that his recent spate of drug positives aren't primarily for performance-enhancing substances per se, but for therapeutic medications that are rigidly controlled and tested down to trillionths of a gram.

But the general public won't really care if that's the case, because the frequency of the positive tests in Baffert's horses are starting to take on an “always something” tenor. Each of his medication violations gets decided individually, essentially in a vacuum, by whichever racing commission has lodged the complaints. But the public–and peers within the industry–will judge Baffert's offenses in the aggregate, and it's no secret that the chief question being asked is “Why so many?”

The answer to that question might end up being one that the industry as a whole will find incompatible with Baffert's reputation as the preeminent trainer of his era. Will he go down in history for having saddled seven Derby winners? Or for saddling the sport with asterisks and public-relations headaches at a time when equine welfare and drug abuse are the focal points of Thoroughbred racing's future?

Churchill Downs has already barred Baffert's horses from being entered there until the conclusion of the investigation by the state racing commission. Other jurisdictions could follow.

“I know I'm the most scrutinized trainer. I've got millions of eyes on me,” Baffert said Sunday morning, underscoring that he's okay with that level of scrutiny, and that he knows it comes with the territory of winning so many iconic races.

Later, when asked by a reporter what his fellow trainers thought of the regulatory framework regarding therapeutic medications, Baffert said, “We're sitting ducks, basically…. It just seems odd, that why am I the only one that has the contaminations? Why am I the only one? That just seems odd to me.”

Good point. If the regulatory problem with therapeutic medications is indeed systemic, as Baffert asserts, why aren't other high-profile trainers collecting the same proportion of drug positives?

Let's compare Baffert to his peers in terms of elite-level competition. In 2020-21, only five North American trainers each started more graded stakes starters than Baffert. They are Steve Asmussen, Chad Brown, Mark Casse, Mike Maker and Todd Pletcher.

Collectively, those five trainers started 8,860 total horses in 2020 and so far through 2021. According to the Association of Racing Commissioners International rulings database, none of them has triggered a medication positive during the same time frame that Baffert racked up five of them from 449 starters.

Later on Sunday, back at his home base at Santa Anita Park, Baffert had one horse entered to run, a turf sprinter named Speedy Justice (Dominus). Bet down to odds-on, the colt opened up a big lead, faded, then failed to hit the board.

Will a different form of “speedy justice” end up prevailing in Baffert's latest high-profile drug positive case?

Depending on your perspective, some form of justice will eventually arrive.

But with the Derby result hanging in the balance, it's not very likely to be speedy.

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Six-Strike Overhand Whipping Rule Could Be Legal in Kentucky by February

The Kentucky Horse Racing Commission (KHRC) is on its way to a long-planned rewrite of the state's whipping rules, and the chief change would set a limit of six overhand hits per race with no more than two strikes in succession to give the horse a chance to respond.

In addition, the penalty structure will be tweaked. As explained by Jennifer Wolsing, the general counsel for the KHRC, “The stewards would be able to impose a $500 minimum fine or a three-day minimum suspension. Or, if the stewards believe that the violation is egregious or intentional, then the stewards could impose both.”

Last June, the KHRC voted to advance extensive whip-rule changes based on a limit of six underhanded strikes per race. But that proposal ended up getting paused when it became evident to the commission that the legislature was unlikely to approve it into law.

The KHRC's Rules Committee voted in the new round of proposed changes on Monday. The full KHRC board still has to vote on the measure June 15, but there doesn't appear to be any impediment to passage, KHRC executive director Marc Guilfoil told TDN in a follow-up phone call.

The measure then would have to be approved by the state legislature, whose leaders have indicated support for this latest version. Guilfoil estimated that legislative process could take seven or eight months.

“So it should be in effect–if everything goes good, and I don't see why it wouldn't–by February of next year,” Guilfoil said.

Stakeholders who contributed to the May 3 compromise, which got hammered out over the last few weeks after being extensively debated for the past year and a half, voiced agreement that this latest version still isn't going to be ideal for everybody, but that it could end up being a good enough fit to provide a workable model for a uniform rule across all jurisdictions.

“You strive to get the perfect rule. You don't always get there,” said Guilfoil during the tele-meeting, noting that the KHRC has been working with everyone from jockeys to legislators to try and get its rule right. “I think this is something that everybody can live with…We're going to start talking to some other states, and see if we can get uniformity.”

Terence Meyocks, the president and chief executive officer of the Jockeys' Guild, told the Rules Committee his members are willing to go along with this proposal in the interest of trying to get a continent-wide rule on the books.

“Hopefully, we adopt a rule in Kentucky that could be an important first step to the adoption of a uniform riding crop rule in North America,” Meyocks said. “It's important that we remember that there was indeed compromise on behalf of both parties, the riders in the Guild and the KHRC. Having different rules in so many different various states is no good for anybody.”

The KHRC's chief state steward, Barbara Borden, said the revised penalty structure would be particularly useful moving forward.

“There are many times we struggle with the mandatory penalties that are scattered throughout our regulations and don't always give us discretion when we feel like we need it,” Borden said. “So in this instance, we're pleased with the way this is written, that we have a baseline to start with. And should a person violate a regulation over and over again, we like the penalties to escalate, particularly if it's an egregious offense or if we feel like somebody is just ignoring the regulation.”

Currently, most first-time whip-rule violations are penalized with a $250 fine, Guilfoil told TDN.

Wolsing said jockeys will be limited to “six instances of overhand use of the crop at any time. The overhand use of the crop cannot go above the rider's helmet. And the rider would not be able to use the crop in the overhand fashion more than two successive instances without giving the horse a chance to respond.”

Wolsing continued: “Backhanded or underhanded-fashion use of the crop is going to be okay from the three-eighths pole to the finish line. It will always be okay to tap the horse on the shoulder in the down position as long as both hands are on the reins and on the shoulders of the horse. And certainly showing and waving the crop in front of the horse is also okay.”

There was brief debate over why six strikes has evolved as the standard. Wolsing explained that it's important to note that in Kentucky, the state constitution bans “arbitrary and capricious actions by state governments,” so the number of hits has to be codified and can't be left up to a judgment call by the stewards.

“At some point you have to have a certain number of strikes,” Wolsing said. “This is a number that has been adopted by other jurisdictions as well. It's a very reasonable number [and a number that stakeholders arrived at by] taking into consideration what would be appropriate for the jockeys as well as the horses.”

Wolsing said she foresees no problem with the commission being able to defend that six-strike number if it ever got challenged in court.

Mike Ziegler, the senior vice president and general manager of Churchill Downs Racetrack, said during the meeting that the change represented “a good balance,” adding that, “We're not going to let 'perfect' get in the way with 'really good.'

“Let's get this thing going, turn the page, and get on to other things,” Ziegler said.

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Kentucky Committee, Jockeys Come Together On New Whip Rules

After discussions with the Thoroughbred Safety Coalition and The Jockeys' Guild, the rules committee of the Kentucky Horse Racing Commission unanimously passed changes to the state's whip rules on Monday afternoon.

The whip rule has been up for discussion for some time in Kentucky. In June 2020, a joint meeting of the rules committee and the safety and welfare committee brought forth proposed changes from the Thoroughbred Safety Coalition, an industry group that includes Churchill Downs and Keeneland. Those rules would have limited overhanded strikes to five in the stretch but permitted underhanded strikes at the start of a race. The guidance also allowed a rider to use the whip as necessary to course correct in an emergency, but suggested riders may be required to pull a horse up if they exhausted their strike limit during a corrective incident.

The Jockeys' Guild had pushed back on that proposal, requesting the maximum number of over-handed strikes increase to six. A subsequent committee meeting in September resulted in a move to focus sanctions on suspensions rather than fines for violations of the new rules.

On Monday, all parties expressed their support for the following:

  • A limit on overhanded strikes to a total of six prior to the 3/8 pole, while giving the horse a chance to respond after two strikes. Overhanded uses may not include the rider raising the whip above the helmet
  • Underhanded or backhanded use only in the final 3/8 of a mile
  • Showing the horse the whip or tapping the horse on the shoulder will remain acceptable if both hands are on the reins
  • Removal of the word “strike” to refer to the use of the whip in order to improve pubic perception
  • Stewards can impose either a $500 minimum fine or a three-day minimum suspension. If the violation is egregious and intentional, they could impose both. Mitigating factors could include the rider's history with whip violations, and the number and types of use beyond the above restrictions

Jockeys' Guild president and CEO Terry Meyocks said he is hopeful the same language will be taken to other members of the Thoroughbred Safety Coalition, which includes The Stronach Group, NYRA, and Del Mar, for use at those facilities.

“Having different rules in so many various states is not good for anybody,” said Meyocks. “Ideally, if the KHRC were to adopt this rule then we could work on a uniform rule throughout North America.”

“We're not going to let 'perfect' get in the way of 'really good,'” said Mike Ziegler, senior vice president and general manager of Churchill Downs and Coalition representative of the new draft of the rules.

There will be ample notice given to riders 30 to 60 days of the new rules being implemented to give them time to change their riding style before they could become subject to penalties.

KHRC executive director Marc Guilfoil noted the parties had received input from legislators, who had advised them that previous versions of the whip reform rules were not likely to pass. Meyocks said that he was advised the Guild would need to be willing to compromise to find a rule that would be approved.

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Commission Will Not Ban Sheikh Mohammed, Essential Quality From Kentucky Derby

The Kentucky Horse Racing Commission announced late Thursday that Sheikh Mohammed and his morning line favorite for the 147th Kentucky Derby, Essential Quality, will not be sanctioned over findings of human rights abuses by a British High Court, because “the complaint does not articulate a violation of KHRC regulations,” according to the New York Times.

Earlier this week, human rights attorneys filed a formal complaint with the KHRC, asking the state agency to ban Sheikh Mohammed and his runner from the Kentucky Derby. The attorneys claim Sheikh Mohammed is guilty of human rights abuses in the cases of two of his adult daughters who allegedly tried to leave his household and were forcibly returned to Dubai.

In 2019, Sheikh Mohammed's wife Princess Haya fled Dubai with her two children and sought a divorce through a British High Court. Court proceedings, which Sheikh Mohammed attempted to keep out of the public record, determined in 2020 that the ruler of Dubai had indeed kidnapped his two daughters and also that he “conducted a sustained campaign of fear, intimidation and harassment” of Princess Haya, who was granted a divorce.

The same legal team, which includes the University of Louisville Human Rights Advocacy Project, filed a similar complaint last year but was denied since it was based on media reports rather than findings of a court.

State racing commissions can and do consider a licensee's criminal history at the time of a license application. Writing for the Lexington Herald-Leader earlier this week, columnist Linda Blackford questioned whether the commission should get involved in such a complaint, which the attorneys filing the complaint admitted was designed mainly to draw attention to the plight of the sheikh's family.

“Thoroughbred horse racing has always been full of princes and potentates, scoundrels and scam artists; where would the racing commission even begin to start turning away the morally compromised?” wrote Blackford. “And speaking of that, do we really think the racing commission should even get close to geopolitical power plays?”

Godolphin representatives had already indicated the sheikh has no plans to attend this year's Derby.

Read more at the Lexington Herald-Leader.

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