KHRC Aims to Rewrite Transparency Regulations

The Kentucky Horse Racing Commission (KHRC) is on the cusp of approving rewritten rules aimed at increasing transparency. The major changes include lifting prohibitions on the public disclosure of alleged violations, new guidelines that establish a 60-day time frame for holding hearings, and the opening of those hearings to anyone who wants to observe them.

Tweaks to the equine drug-testing process are also in the pipeline. They include a requirement for owners and trainers to select an approved lab for split-sample testing within five days of being provided with the list of accredited facilities, and for the KHRC to send off the sample within seven days instead of “as expeditiously as possible.”

The KHRC's rules committee approved all of these proposed changes by unanimous voice vote during its Tuesday meeting. The full KHRC board will vote on adopting them at its Apr. 26 meeting.

Although no one on the committee during the Apr. 19 meeting mentioned Medina Spirit's betamethasone positive and his owner and trainer's under-appeal disqualification from the 2021 GI Kentucky Derby, the KHRC's widely criticized cryptic handling of that controversial, drawn-out case over the last year was the obvious catalyst for proposing the changes.

“Our frustration has clearly come from, you know, we have certain cases that take long periods of time,” said KHRC member and rules committee chairman Mark Simendinger. “Nobody [in the public] knows what's going on. We're not allowed to say what's going on. And so we want to be able to communicate that out.”

Or, as Jennifer Wolsing, the KHRC's general counsel, put it, “[I]n keeping with recent developments encouraging more transparency–especially in the communication of medication violations, but also routine riding offenses–we thought that it would be very reasonable to allow the commission to publicly disclose information regarding an alleged regulatory violation, if and only if such information would not unduly impact an investigation.”

Back on Feb. 15, when KHRC chairman Jonathan Rabinowitz obliquely referred to the Medina Spirit scandal for the first time at an open, public meeting, he vowed that it was “of the utmost importance to this commission” to change the board's long-standing restrictions on disclosure.

But still, several clauses written into the rule proposals would continue to allow for at least some discretionary KHRC lip-buttoning and extending hearing timelines.

For example, the amendments within the public disclosure section repeatedly state that the commission or its executive director “may” publicly disclose information. That's different from stating that the KHRC is required to make such disclosures.

And pertaining to the 60-day requirement for holding hearings, the proposed rules state that the stewards may indefinitely extend the deadline “in their sole discretion, upon demonstration of exigent circumstances.”

In addition, although stewards' hearings will now be considered “open” if the full KHRC board approves the rule changes, there aren't any new guidelines within the amendments about how the public or journalists will know those hearings are going to occur.

Simendinger acknowledged and addressed that public-notice aspect of the hearings prior to Tuesday's vote, explaining that the KHRC needed to strike a balance between disclosure and practicality.

Simendinger gave the example of stewards sometimes needing to meet with alleged violators on the fly, like if a riding infraction occurred in a major stakes and the jockey had to leave town right after the race and wouldn't be able to attend the next day's film reviews.

“We don't want to get into a position where, in the quest for being open and transparent, that we make it so that our people can't conduct normal, routine business that we need to do on a daily basis,” Simendinger said.

“But the flip side of that is we want all of this stuff to be open. So the [hearing] is 'open.' Anybody, they hear about it, they want to come in, they can come in,” Simendinger said. “But it's not going to meet the definition of an 'open meeting' where we have to provide 24-hours' notice [as defined] in the statute.”

KHRC commissioner Bill Landes III postulated a devil's advocate type of question: What if the alleged violator didn't want the hearing to be open to the public?

Wolsing was quick with an answer.

“If that were to happen, I would suggest that the stewards would need to call legal [counsel] and we would talk about why the person wanted the meeting to be closed,” Wolsing said. “If they had a reasonable reason for requiring the meeting to be closed, fair enough. But the way we have it [proposed] right now states that a stewards' meeting 'shall be open.' So that means they would have to cite some sort of statute that says…the stewards' hearing [can legally] be closed.”

Highlights of the rule amendments related to disclosure follow:

“The commission or its executive director may publicly disclose information regarding an alleged violation if such information will not unduly impact any investigation.

“After notice to the racing participant, the commission or its executive director may publicly disclose the identity of any racing participant who is accused of an alleged regulatory violation and the identity of the horse at issue.

“After commission and racing participant receive testing results pursuant to [KHRC rules], the commission or its executive director may publicly disclose the alleged conduct or the alleged amount and type of the medication, drug, or substance that gave rise to the alleged regulatory violation; or

“At any time, the commission or its executive director may publicly disclose the date of an upcoming stewards' hearing; or

“At any time, the commission or its executive director may publicly disclose other information as deemed appropriate.

“Situations giving rise to the disclosure of information by the commission or its executive director may include the following: a) Information pertaining to an alleged regulatory violation has been previously publicly disclosed by the racing participant; b) In the case of an alleged medication violation, if the commission's laboratory has returned a positive finding and the racing participant has been notified of the results of split sample pursuant to [KHRC rules]; c) In the case of a medication violation, if the commission's laboratory has returned a positive finding and the racing participant has not exercised his or her right to further laboratory testing; or d) For other reasons in the best interests of racing.”

A summary of proposed changes related to hearings follows:

“A stewards' or judge's hearing, as applicable, shall be conducted by a state steward or a state judge unless waived in writing by the party charged with the violation.

“A stewards' or judges' hearing shall be conducted no more than sixty (60) days after either: a) the racing participant is notified of an alleged violation, or b) if the racing participant requests split laboratory results, the date on which the participant receives those results…

“Stewards' and judges' hearings shall be open. Nothing in this section limits the authority of the presiding stewards or judges to order closure of a hearing or to make other protective orders to the extent necessary or proper to satisfy the United States Constitution, the Kentucky Constitution, federal or state statute, or other law, such as laws protecting privileged, confidential, or other protected information.”

(The current version of the rule states that “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.”)

Regarding split sample testing, the full KHRC board will vote on the following new language:

“The party requesting the split sample shall select a laboratory solicited and approved by the commission to perform the analysis within five days after he or she is notified of the split sample laboratories available to test the split sample. If a trainer does not select a laboratory within five days after notification of the available split laboratories, then he or she shall be deemed to have waived the right to split sample analysis. A split sample so requested shall be shipped within seven days of the date that the trainer provides his or her laboratory selection to the stewards.

“Failure of the owner, trainer, or a designee to appear at the time and place designated by the commission veterinarian in connection with securing, maintaining, or shipping the split sample shall constitute a waiver of any right to be present during the packaging and shipping of the split sample.” (The current version of the rule states that if the person doesn't show up, they will waive the right to be present during “split sample testing procedures.”)

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One Step Forward, One Back in Baffert’s Derby-Driven Legal Odyssey

A federal judge on Thursday granted Bob Baffert the expedited preliminary injunction hearing the trainer is seeking in his fight to overturn a private-property ban by Churchill Downs, Inc. (CDI). But getting that hearing on the docket is only one step in a complicated, deadline-driven legal process in the Hall-of-Famer's long-shot quest to try to be able to saddle horses in the GI Kentucky Derby.

The just-assigned Apr. 15 date for the hearing in United States District Court (Western District of Kentucky, LouisvilleDivision) will come 22 days before the Derby.

But even if the federal judge ends up issuing an order that lifts CDI's two-year ban of Baffert over his repeated equine medication violations while that case gets heard in full, Baffert still faces a separate–and steep–legal hurdle in the form of an under-appeal 90-day suspension imposed by the Kentucky Horse Racing Commission (KHRC) because of a betamethasone positive in Medina Spirit, his now-deceased 2021 Derby winner.

Baffert is separately fighting that commission-level suspension in the Kentucky Court system, and Mar. 31 brought yet another technical twist to an already confusing plot.

The KHRC's Thursday filing in Kentucky's Court of Appeals was a motion to dismiss Baffert's appeal of a Franklin Circuit Court decision not to grant the trainer a stay or temporary injunction that would have kept the suspension and a $7,500 fine from going into effect while the KHRC's own appeals process plays out.

Here's a boiled-down sequence of what's transpired over the past six weeks in the KHRC case:

On Feb. 21, the KHRC issued Medina Spirit's dirty-test rulings against Baffert (the suspension and fine) and owner Amr Zedan (a DQ from the Derby and loss of purse winnings). Baffert and Zedan then appealed at the commission level; the appeal was granted, but on Feb. 25 a request for a stay of the penalties while the appeal played out was denied by the KHRC's executive director, Marc Guilfoil. So Baffert and Zedan took the matter to the Franklin court Feb. 28.

On Mar. 2, the Franklin judge said he would hold off on a full court hearing to decide the stay and/or injunction until after the full KHRC board had a chance to vote on the stay instead of just relying on the executive director's say-so.

On Mar. 4, the KHRC board voted 10-0 Mar. 4 to deny the stays of penalties in accordance with the decision Guilfoil had already made. Franklin Circuit Court then took up the hearing Mar. 17.

Then on Mar. 21, the Franklin judge denied the request to force the KHRC to impose any sort of stay, writing in an order that “A temporary injunction is an extraordinary remedy” that the court would not grant.

Baffert and Zedan then decided to kick the Franklin court's denial up to the higher Court of Appeals on Mar. 24.

Then, one day later, the Court of Appeals judge raised the issue of whether the underlying Franklin Court appeal originated in the correct venue in the first place. The question that judge wants answered drills down to whether or not the initial appeal of the KHRC's denial of a stay should have been heard in Jefferson County (where the Derby itself is run), Fayette County (where the KHRC's offices are headquartered), or Franklin County (where the Kentucky Public Protection Cabinet, the KHRC's parent organization, is housed).

Now, the Mar. 31 KHRC motion to dismiss asks another layer to the case by asserting that Baffert and Zedan's “failure to follow the proper procedures set forth in [state law] divested Franklin Circuit Court of jurisdiction over their appeal.”

In plain language, the “subject-matter jurisdiction” technicalitythat the KHRC raises has to do with the timing of when Baffert and Zedan filed their Franklin County appeal: It was after Guilfoil issued his no-stay determination via letter, but before the full KHRC board had voted to deny the stay. Failing to amend their filing to reflect that distinction makes Baffert and Zedan's complaint “defective,” the KHRC is arguing.

“A defective Complaint can cause a case to be dismissed for lack of subject matter jurisdiction,” the KHRC's motion to dismiss states.

“Movants' failure is more than form over substance,” the motion to dismiss states. “Movants have failed to properly place into the record the steps that are required by [state law]. Even their request for injunctive relief fails to mention the Commission's Final Order.”

Baffert's court fights are taking place against the backdrop of contingency plans that have involved transferring his Derby contenders to other trainers. This will allow those horses to try and earn qualifying points and enter the Derby in the event Baffert can't get judges to overturn both the CDI ban and also impose a stay on his KHRC suspension in time for the May 7 first leg of the Triple Crown.

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More Confusion Added to Baffert Appeal Process

With the clock ticking toward the Apr. 4 deadline for trainer Bob Baffert's looming 90-day suspension, a Kentucky Court of Appeals judge now wants to figure out whether the original venue chosen for legal action last month by the owner and trainer of disqualified 2021 GI Kentucky Derby winner Medina Spirit constitutes the correct county-level court. Dick Downey of the Blood-Horse first reported on the judge's order requesting briefs from the movants (Baffert and Zedan) and the respondent (the KHRC) covering just that single issue to be filed with the court by Tuesday.

Because of overlapping uses of the term “appeal,” it has grown difficult to keep track of the status of what has now escalated to Baffert and owner Amr Zedan's intertwined administrative and legal cases against the Kentucky Horse Racing Commission (KHRC).

At the commission level, Baffert and Zedan have already appealed the KHRC's penalties (the suspension and a $7,500 fine for Baffert, plus the forfeiture of Zedan's purse winnings from the Derby) that were handed down Feb. 21 in the wake of now-deceased Medina Spirit's betamethasone positive in last year's Derby.

But when a routine request to stay those penalties (pending the outcome of the commission-level appeal) was denied by the KHRC Feb. 25, Baffert and Zedan took the matter to Franklin Circuit Court Feb. 28.

A Franklin Circuit Court judge Mar. 21 rejected Baffert and Zedan's plea for a stay or temporary injunction to keep the penalties from going into effect, so the trainer and owner bumped up their request to the next legal level, the Court of Appeals, Mar. 24.

On Mar. 25, the Court of Appeals judge raised the out-of-the-blue issue of whether the underlying Franklin Court appeal originated in the correct venue in the first place.

As Downey reported, the question drills down to: Should the case have originally been heard in Jefferson County (specifically Louisville, where the Derby itself is run), Fayette County (Lexington, where the KHRC's offices are headquartered), or Franklin County (Frankfort, where the Kentucky Public Protection Cabinet, the KHRC's parent organization, is housed)?

Even if Baffert prevails in this Court of Appeals attempt, he is still barred from having horses qualify for and run in the Derby based on a separate, private-party prohibition issued by the gaming corporation that owns Churchill Downs.

But Baffert is also fighting that banishment in federal court even while contingently transferring his Derby contenders to other trainers so they can try and earn qualifying points and enter the Derby.

 

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Baffert, Zedan Escalate Appeals to Higher Kentucky Court

Trainer Bob Baffert and owner Amr Zedan filed motions with the Kentucky Court of Appeals on Thursday in an attempt to legally block a series of looming penalties related to the equine drug positive rulings of Medina Spirit in the 2021 GI Kentucky Derby.

The most severe of those sanctions is a 90-day suspension for Baffert that is set to start Apr. 4.

The Mar. 24 filing came barely 72 hours after a lower court rejected Baffert and Zedan's plea for a stay or temporary injunction that would have kept the suspension and a $7,500 fine for Baffert, plus the forfeiture of Zedan's purse winnings, from going into effect while the Kentucky Horse Racing Commission (KHRC) appeals process plays out.

The KHRC has a history of routinely granting stays while cases are under appeal, but it didn't in Baffert and Zedan's instance, which dates to now-deceased Medina Spirit's betamethasone positive in last year's Derby.

“Here, the KHRC has refused to follow standard procedure and stay the Stewards Rulings pending appeal,” court documents stated. “In fact, in its history, the KHRC has never denied a trainer's request to stay implementation of preliminary stewards penalties while those rulings are appealed. Never. Not once. Until now. This fact was recognized by the Franklin Circuit Court, but the Court erroneously refused to grant a stay… Absent a stay of the Stewards Rulings before April 4, 2022, the Plaintiffs will suffer immediate and irreparable harm.”

Separately on Thursday, Baffert publicly disclosed that four of his top Derby candidates are in the process of being transferred to other trainers so they can try and earn qualifying points and enter the Derby.

Even if Baffert prevails in this Court of Appeals attempt, he is still barred from having horses qualify for and run in the Derby based on a separate, private-party prohibition issued by the gaming corporation that owns Churchill Downs. But Baffert is also fighting that banishment in federal court and seeking a speedy ruling that could let him participate in the Derby while that litigation plays out.

Thursday's documents stated that the Franklin Circuit Court “abused its discretion in disregarding the immense and irreparable prejudice” to Baffert with regard to his pending suspension, offering four planks to that argument.

“First, the lower court failed to appreciate the purpose of the voluminous case precedent holding that missed professional sporting events are irreparable injuries for purposes

of temporary injective relief,” the documentation stated. “According to the Circuit Court, those cases are inapplicable because 'Baffert is not an athlete,' whose career is 'subject to a small window of eligibility or period of peak performance.'

“This is misguided even on the Court's own terms. Baffert is 69 years old; not unlike an ordinary professional athlete, Baffert's window of future opportunities is similarly limited…. There is no way to remediate Baffert's lost opportunity to participate in the prestigious races that define his reputation and the success of his career.”

The documentation continued: “Second, the lower court substantially erred in concluding that 'any harm that Baffert will suffer from not participating in the 2022 Triple Crown or other races during his suspension will result in monetary loss' and thus are not sufficiently irreparable injuries. [This mischaracterizes] the fact that money damages are typically completely quantifiable and thus, reflect adequate remedies on appeal…

“Baffert's income from racing is almost entirely linked to a horse's performance in a given race. There is simply no way to conclusively determine how his horses would have performed in the races taking place during his suspension. Missing out on the prestigious Triple Crown races (and many others) in 2022 is irreparable harm to a trainer like Baffert as the opportunity to compete in them can never be regained and the lost opportunity is not subject to remuneration,” the documentation stated.

The legal filings raised two other arguments related to the alleged abuse of discretion: That “the lower court similarly overlooks the extreme harm to Baffert's entire livelihood if [he is] forced to immediately serve the suspension,” and that the Circuit Court “abused its discretion in failing to recognize that forcing Baffert to immediately serve the suspension defeats the entire purpose of his appeal.”

The documentation summed up by alleging that “the Circuit Court misframed the issue and misunderstood the scope” of its own review.

“[Baffert and Zedan] are not, as the Circuit Court contended, attempting to 'force [the KHRC] to automatically issue stays.' Movants merely contend that when the KHRC departs from its universal practice; it must do so for valid reasons based on evidence on the record.

“In other words, the KHRC must apply the same standard that has been applied to every medication positive case to date,' the documentation stated.

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