Medina Spirit’s Derby DQ Upheld at KHRC Level, Ripening Case for Court Challenge

The Kentucky Horse Racing Commission (KHRC) on Tuesday closed the 27-month regulatory saga involving Medina Spirit's GI Kentucky Derby drug disqualification by unanimously voting to deny appeals by trainer Bob Baffert and owner Zedan Racing Stables while accepting a hearing officer's recommended order that the penalties originally imposed by the Churchill Downs stewards be affirmed in their entirety.

But the legal battle to restore Medina Spirit's win in America's most historic and important horse race appears to be just now ramping up.

That's because now that the KHRC's decision is final at the state administrative level, it is ripe for being elevated to the court system and challenged by the losing parties.

Medina Spirit crossed the wire first in the 2021 Derby but subsequently tested positive for betamethasone in a KHRC post-race drug screening.

The Aug. 22, 2023, final order denying the appeals on behalf of Baffert and Medina Spirit's owner, Amr Zedan, officially elevates Mandaloun as the official winner of the 147th Derby.

Not only does the denial of the appeals uphold Medina Spirit's DQ, it lets stand the 90-day KHRC suspension that Baffert already served in 2022 but wanted expunged from his record. Also upheld was the $7,500 fine the KHRC imposed upon Baffert.

Baffert did not respond to TDN's request for comment prior to deadline for this story.

But the Hall-of-Fame trainer's attorney, W. Craig Robertson III, said he will soon be outlining next-step legal strategies with Baffert.

“It's disappointing that the KHRC engaged in no analysis whatsoever of the Hearing Officer's Findings of Fact or Conclusions of Law,” Robertson wrote in an email. “Neither did the KHRC's Order address any of the many objections we raised to the Hearing Officer's ruling.

“Instead, the KHRC did what it does best–rubber stamped its own foregone conclusion. I will discuss with Mr. Baffert, but believe it is highly likely the matter is appealed so that it can finally be presented to an impartial Court,” Robertson wrote.

Eight days after the 2021 Derby, Baffert first disclosed the betamethasone positive at a press conference outside the barn where Medina Spirit was stabled at Churchill Downs. In doing so, he was getting out in front of the official announcement that would come later by the KHRC.

In Kentucky, betamethasone is classified as a Class C drug (on an A-through-D scale with A being the most severe). It is prohibited in any amount in a post-race test.

At first, on May 9, 2021, Baffert chose to implicate various non-specific circumstances as the underlying culprit in the positive test. Two days later, on May 11, Baffert's legal team issued a press release stating that Medina Spirit was treated with the betamethasone-containing ointment Otomax as late as the day before his Derby win to help deal with a skin lesion.

Baffert and Zedan's lawyers would eventually build more than two years of court cases and administrative appeals around the contention that the betamethasone that showed up in Medina Spirit's post-race positive test was the type that came from a permissible topical ointment and not via some other restricted means, like an intra-articular injection.

The Twitter account for Zedan Racing posted a statement on Tuesday that underscored that this method-of-delivery argument would continue to be a central plank in any future court case.

“Today's decision by the KHRC finding the use of a commonly used topical ointment to be a medication rule violation relating to Kentucky Derby winner Medina Spirit was expected. We now look forward to a court's review and legal analysis of the express rules and basic constitutional principles involved. We genuinely believe that the wisdom and guidance that a court can provide will bring clarity benefitting all industry partners and particularly trainers and veterinarians.”

Although no KHRC ruling was issued in the first nine months after Medina Spirit's positive finding, the gaming corporation Churchill Downs, Inc. (CDI), in June 2021 barred Baffert from competing at its portfolio of tracks for two years.

Medina Spirit died on Dec. 6, 2021, collapsing to the track after working five furlongs at Santa Anita Park. A necropsy conducted by the California Horse Racing Board stated that a “definitive cause of death was not established despite extensive testing.”

In 2022, Baffert initiated a federal lawsuit that challenged CDI's ban. The case dragged into 2023, when it was dismissed.

The KHRC finally held its hearing on Medina Spirit's positive test on Feb. 14, 2022, and issued the rulings against Baffert and Zedan a week later.

When stay requests pending appeals filed with the KHRC were denied, Baffert and Zedan took the matter to court, with the KHRC case unfolding around the same time as Baffert's unsuccessful lawsuit against CDI.

In the spring of 2022 Baffert failed to get an injunction against the KHRC that would have kept him from serving his suspension, so he stepped away from training between early April and early July of that year to sit out his penalty.

The KHRC appeals then led to six days of evidentiary hearings in August 2022. The process got delayed a month later when the hearing officer had to recuse himself after one of Baffert's attorneys bought a horse at auction that the hearing officer co-owned.

A new hearing officer, Eden Stephens, took over, and in May 2023 issued a report that concluded that “the stewards' decision was made on reliable, substantive evidence that the horse, Medina Spirit, was administered and carried the prohibited substance, betamethasone” and that “the KHRC's regulations do not state that any route of administration excuses a post-race betamethasone positive.”

It took nearly three more months before the KHRC's vote on the hearing officer's recommendations made it onto the Aug. 22, 2023, monthly meeting agenda. In the interim, CDI extended its private-property banishment of Baffert through 2024.

On Tuesday, the KHRC did not discuss any specifics of the appeals prior to the unanimous voice vote to reject them. The item was listed last on the meeting agenda, and it occurred after a break for the commission to have discussions in an executive session.

When the KHRC reconvened in open session, chairman Jonathan Rabinowitz asked if any commissioners wanted to “abstain due to conflicts of interest, or perceived conflicts of interest.” Four did: Michael Dudgeon, Lesley Howard, Charles O'Connor and Catherine Parke.

Rabinowitz then called for a vote “approving a final order as stated.” But exactly what the KHRC commissioners were voting on was not read into the public record.

TDN had to subsequently ask for and receive a copy of the order from KHRC staff after the meeting to learn what it stated.

“The Hearing Officer's Recommended Order is approved, adopted, and incorporated herein by reference as a part of this Order,” the five-page document read, in part. “Petitioners' appeal is therefore DISMISSED. This is a FINAL AND APPEALABLE ORDER…”

The document listed the procedures for just such an appeal, which, according to state statue, must happen in a Kentucky circuit court within 30 days after issuance of the final order.

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Sports Betting Three Weeks Away in Kentucky

With the opening day of sports betting just three weeks away, Kentucky Gov. Andy Beshear has provided a timeline of key dates, including that betting will officially start at 10 a.m. EDT on Thursday, Sept. 7, for in-person bets at licensed retail facilities.

A list of approved retail facilities and mobile applications will be released Aug. 22, following the Kentucky Horse Racing Commission (KHRC) meeting.

“The countdown is on. We are just three weeks away from sports wagering in Kentucky,” said Gov. Beshear. “We are ready to deliver the quality entertainment experience Kentuckians asked for, while bringing money to the state to support pensions and free up funds that can be used to build a better Kentucky.”

Sports Betting Timeline:

Tuesday, Aug. 22, at 1:30 p.m. EDT: KHRC will meet to vote on license applications. This vote will determine which retail facilities and mobile applications will be approved for use in Kentucky.

Monday, Aug. 28, at 6 a.m. EDT: Kentuckians can pre-register an account with approved mobile applications. Allowing pre-registration eases strains on electronic systems that can sometimes happen when many people try to register at once.

Thursday, Sept. 7, at 10 a.m. EDT: Wagerers can place an in-person bet at licensed retail facilities.

Thursday, Sept. 7, at 6 a.m. EDT: Wagerers can only deposit money into their pre-registered account with approved mobile applications.

Thursday, Sept. 28, at 6 a.m. EDT: Approved mobile applications can start taking wagers.
Kentucky chose a tiered implementation, which has been used in multiple states and which allows for testing of policies and procedures before the full rollout that includes mobile applications.

“The KHRC is excited to open sports wagering and is working efficiently to meet the necessary deadlines. This is a careful process dedicated to wagering integrity and protecting bettors in the state of Kentucky,” said Kentucky Horse Racing Commission Chairman Jonathan Rabinowitz.

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Frank L. Jones, Jr. Succumbs to Long Illness

Frank L. Jones, Jr., a prominent owner, breeder, and servant to the horse industry through decades of work on the boards of several Thoroughbred organizations, passed away Thursday, Aug. 10 after a long illness. The Louisville businessman was 87.

In addition to other roles, Jones spent more than 30 years as the owners' vice president of the Kentucky Horsemen's Benevolent and Protective Association (HBPA), where he was instrumental in negotiating contracts for owners and trainers with racetracks. He was also chair of the Kentucky HBPA's finance committee and a legislative liaison. He was vice chair of the Kentucky Horse Racing Commission (KHRC), first appointed in 1997 by Gov. Paul Patton, reappointed in 2008 by Gov. Steve Beshear, and appointed again in 2020 by Gov. Andy Beshear. Jones was also a long-time board member and secretary of the Kentucky Racing Health & Welfare Fund, which provides health resources and financial assistance to the Commonwealth's backstretch workers.

Jones was also president of the Kentucky Thoroughbred Owners in 1998-1999 and was a member of the American Horse Council, Thoroughbred Owners and Breeders Association, and the Kentucky Thoroughbred Association. Last October he was selected as a member of the Horseracing Integrity & Safety Authority (HISA)'s Horsemen's Advisory Group. He was honored with the Warner Jones Award, which recognizes individuals for outstanding contributions to Kentucky racing, in 2019.

“The Kentucky horse racing and breeding industry wouldn't be in the strong position it is in today without the passion, commitment, and leadership of Frank Jones, Jr.,” said Churchill Downs CEO Bill Carstanjen. “From his meaningful contribution to the Kentucky HBPA to his impact on the Kentucky Horse Racing Commission and as past president of the Kentucky Thoroughbred Owners, our sport and community lost a dear friend and tremendous advocate, and we at Churchill Downs lost a valued partner. He will be greatly missed, and our thoughts are with his family and countless number of friends and colleagues during this difficult time.”

Born in Louisville in 1937, Jones attended Western Kentucky University and spent time in the U.S. Air Force. A variety of savvy business dealings, including in swimming pool equipment and supplies, led to him being nominated as an Ernst & Young Entrepreneur of the Year in 1989 and 1990. However, it was a chance encounter with trainer Jerry Romans, Sr. that led to his decades in the horse industry. He bought his first horse in 1968 for $1,500 and exclusively used Romans and his son, Dale, as trainers. He was leading owner at the spring meets at Churchill Downs in 1989, 1990, 1992, and 1995. The star of his stable was Tapitsfly (Tapit), who won the inaugural Breeders' Cup Juvenile Fillies Turf, as well as the GI Just a Game S. and GI First Lady S. Jones sold the filly in 2012 at the Fasig-Tipton Kentucky November sale for $1.85 million to Katsumi Yoshida.

A number of industry leaders released statements as news spread of Jones's passing Thursday. Among them were KHRC Chairman Jonathan Rabinowitz, who said, “The passing of Frank Jones is a huge loss for not only his family and friends, but the entire horse racing industry. As a valuable member and vice-chairman of the KHRC Commission and secretary of the Kentucky Racing Health and Welfare Fund, he used his voice to elevate other horsemen, serving and providing guidance to backstretch workers who cannot afford medical assistance on their own. We have all lost a great friend who will be dearly missed.”

Jones is survived by his wife, Nancy Delony Jones, to whom he has been married four years. His first wife, Gloria Jones, passed away after 58 years of marriage. Arrangements are pending.

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The Week In Review: Earle Mack Has The Answer, And We Must Listen To Him

Earle Mack is right. This industry, which is mired in a crisis, can no longer afford to ignore the most obvious solution to its problems, which are synthetic tracks.

Mack wrote just that in an Op/Ed that appeared in this publication last week. If you haven't read it yet, please do so now. It is powerful, articulate and well-reasoned and was written by someone whose credentials demand that we respect his opinion. He is a horse owner, a breeder, a former U.S. Ambassador to Finland and a smart and successful businessman who clearly loves this sport and does not want it to be pushed to the edge of extinction. It may be the most important story you will read all year.

“The responsibility lies with horse racing's governing bodies, influential race track directors, and all key stakeholders to rally behind a transition to synthetic tracks,” he wrote. “Their public endorsement and commitment to safer racing conditions would signal the beginning of the transformative change our industry desperately needs.”

The 12 deaths at Churchill Downs have created a dangerous firestorm unlike anything racing has ever encountered. We only thought the problems at Santa Anita in 2019 were bad. That was an ugly story but it was largely a California story that didn't resonate with the national media. This time, we are talking about the most famous track in the country, the GI Kentucky Derby and two deaths on the Derby undercard.

This is a story that has been widely covered by every major media outlet in the country and has led to a public debate: is our sport inhumane?

How do we answer that? The public no longer wants to hear about how loved these horses are by their owners, trainers, and grooms or that they are pampered and get the very best care possible and that they were born to run. What they want is for the deaths to greatly decrease if not stop all together.

To their credit, Churchill Downs, the Horseracing Integrity and Safety Authority (HISA) and the Kentucky Horse Racing Commission have stepped up and announced that changes are being made. Theirs is a genuine and concerted effort to do the right thing and to get to the bottom of what has been going on at Churchill. Moving the remainder of the Churchill meet to Ellis Park was a drastic step. Considering the widespread opinion that there is nothing wrong with the Churchill track surface, you can argue that it was overkill, but shutting Churchill down was a victory in the public relations battle, and that matters. The days when the sport shrugged this off and we were told “it's part of the game” are, thankfully, over.

But it's not enough. This sport must do absolutely everything it can to alleviate the problem. And it's not. And it won't until synthetic tracks replace dirt tracks throughout the sport.

Yes, deaths happen on synthetic surfaces, too. But they are much safer than dirt tracks. According to the Jockey Club's Equine Injury Database, there were 1.44 deaths per 1,000 starters in dirt races in the U.S. in 2022. On synthetic tracks, the number was 0.41. That means a horse is 3 1/2 times more likely to die in a dirt race that in a synthetic surface race. Dirt tracks are the most dangerous tracks we have and yet they remain the sport's core product.

Noting those figures, Mack wrote, “…the stark and troubling statistics demand a shift in thinking. We must abandon old norms and embrace new practices that prioritize the safety and welfare of our noble equine athletes. The benefits of synthetic tracks are not mere conjecture; they are a proven truth.”

Yet synthetic surface races remain a minor part of racing and Keeneland, Santa Anita and Del Mar gave up on them too quickly, going back to dirt after a short period of time when they were in place at all three tracks.

Mack calls on Churchill Downs to lead the way. Not only does this story center around deaths at that track but the company owns the sport's most important asset, the Kentucky Derby. Mack reasons that if Churchill takes the lead and converts to a synthetic surface, that will create the much-needed domino effect. How about we go a few steps further? The three Triple Crown tracks should make a joint announcement that going forward the Derby, the GI Preakness S. and the GI Belmont S. will be contested on synthetic tracks starting next year. The Breeders' Cup should announce that starting with the 2025 Breeders' Cup only racetracks that have synthetic tracks will be considered as host sites.

It is understood that this would cause a huge change in the economics of the breeding industry, which is a powerful and influential component. There are stallions out there that are worth tens of millions of dollars and that is because they produce top quality dirt horses–ones capable of winning races like the Derby and the GI Breeders' Cup Classic. Should that strength be taken away by ending dirt racing, their value could be greatly compromised. That will never be an easy thing for the top stud farms to accept. But they can adjust. It will take time, but a new set of stallions capable of producing horses that win at the highest levels on synthetic tracks and, for that matter, turf courses, will take over.

And the farms, like every other section of the sport, need to look at what the alternative is.

“If we fail to take decisive action, the Triple Crown and horse racing itself may soon be mourned as relics of the past.,” Mack wrote.  “Animal rights groups, emboldened by each equine death, are gaining traction in their campaign against horse racing. The calls to ban or severely restrict the sport grow louder with each life lost. We cannot afford to lose this race for the soul and survival of our sport.”

Is the sport sure to continue? For maybe the first time in its proud history, we really don't know the answer. Where will racing be in, say, 25 years?  Will it have gone the way of dog racing? It won't if we do the right things now, before it is too late. The sport must become safer and that must happen now. The best way to do that is to end dirt racing.

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