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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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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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Letter to the Editor: Concerns About HISA

Dan Ross's article from Sunday, February 20 highlighting the many unanswered questions regarding provisions of the Horseracing Integrity and Safety Authority (HISA) should concern anyone who cares about American racing.

For an entity which many are expecting to be vitally important to the future of the sport, it has left much to be desired in the way of its public communications. Just shy of four months from launch, the lack of answers to a major industry publication should concern anyone involved in, or subject to, the new organization.

Transparency is not easy. When an organization or even an entire sport is not accustomed to communicating well with its stakeholders, the process of beginning to do so can be painful.
HISA's leadership might think its focus is needed entirely on establishing its rules and procedures and it will deal with the public later, or that it will do only the minimum required by law (following public comment procedures, etc.).

If U.S. racing had a legacy of open discourse with the public, this might not be a concern.

Transparency is desperately needed across our sport. And no matter how complicated or clumsy the process of establishing HISA might be, it misses the mark by failing to communicate clearly with the public and the press.

There are emerging signs, however, that some important cogs in the regulatory process are realizing the need, and the value, in improving communications.

Just last week, Kentucky Horse Racing Commission Chairman Jonathan Rabinowitz asserted the KHRC is undergoing a review of its approach to transparency. As of now, regulations limit the KHRC's ability to communicate about pending incidents before a stewards' ruling is issued. Many recent cases have made it clear this status quo is wholly insufficient.
Commissioner Bill Landes praised the commitment to a new approach as “a breath of fresh air.”

Transparent communication to customers, let alone internal stakeholders, is a necessity to compete in the modern American sporting marketplace.

Racing is in competition with other sports, not just for attention, but more than ever, wagering dollars. And make no mistake, those other sports are doing a far better job of communicating with customers about rules, officiating and infractions than almost any organization in American racing.

Many across the American racing landscape wish to see a more communicative, transparent approach to adjudicating the sport at every level.

HISA's leadership should take note sooner rather than later.

Patrick Cummings is the Executive Director of the Thoroughbred Idea Foundation

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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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