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Baffert Files Suit Against NYRA

Bob Baffert has filed suit in the United States District Court, Eastern District of New York, against the New York Racing Association charging violations under the Fourteenth Amendment to the U. S. Constitution violating his right to due process.

The suit was filed Monday by Baffert's attorney Craig Robertson.

NYRA announced that it had suspended Baffert May 17, after it was revealed that Medina Spirit (Protonico) had tested positive for Betamethasone in the GI Kentucky Derby.

The suit reads, “Specifically, Baffert maintains a right to rely upon and use his New York State occupational trainer's license that was duly issued to him without limitation by the New York State Gaming Commission (the “Gaming Commission”); NYRA has, without legal authority, and without any notice or opportunity to be heard, attempted to indefinitely suspend Baffert's trainer's license issued by the Gaming Commission, thereby preventing Baffert from practicing in his chosen profession or using his state-issued license on state-owned property.”

When asked if he would be filing a similar lawsuit against Churchill Downs, which has also banned the trainer, Baffert's attorney Craig Robertson said he was not representing Baffert on any legal issues related to Churchill Downs. He declined to comment further.

In the suit, Baffert seeks, among other things, a declaration that NYRA is prohibited from denying horses he owns or trains from entering races at NYRA tracks, denying him the privileges of the grounds, and denying him stall space. He is seeking a preliminary and permanent injunction from NYRA from further banning him from the tracks, and says that if that does not happen, he will suffer immediate and irreparable harm.

Attachments to the suit include a letter sent to Baffert from NYRA May 17 outlining the reasons for the suspension. The letter, signed by NYRA President and CEO David O'Rourke, reads, “NYRA has determined that the best interests of Thoroughbred racing compel the temporary suspension of your entering horses in races and occupying stall space at our racetracks. To do otherwise would compromise NYRA's investment in its operations as well as the public's perception of Thoroughbred racing generally.”

The letter says that NYRA would make a final determination on the length and the terms of the suspension in the future “based on information revealed during the course of the ongoing investigation in Kentucky.”

The suit makes a distinction between NYRA and other private entities.

“NYRA is a not-for-profit franchised corporation created by the State of New York. However, unlike other state-created not-for-profit corporations, the existence and operation of NYRA is specifically governed by the New York law that grants it the exclusive franchise to conduct live Thoroughbred racing and simulcasting at the state-owned racetracks on behalf of the state, from which the state derives substantial revenue.”

The suit continues, “NYRA controls the operation of all major Thoroughbred racetracks within the State of New York and operates as an effective monopoly. NYRA does not have the legal authority to suspend Baffert–that rests solely with the Gaming Commission as the entity that issued his occupational license–a license that affords Baffert a property interest under state law sufficient to invoke due process protections. Despite this fact, by purporting to summarily and indefinitely suspend Baffert from all NYRA tracks, NYRA has essentially barred Baffert from exercising his professional and State-issued trainer's license anywhere in the State of New York. Additionally, NYRA has purported to suspend Baffert and the use of his license without any notice or opportunity to be heard in violation of due process. Lastly, by connecting Baffert's “suspension” to the Kentucky investigation, which is likely to go on for years, NYRA has correspondingly banned Baffert from participating in New York racing for several years.”

In response to Baffert's lawsuit, NYRA's Senior Director of Communications Patrick McKenna, issued the following a statement.

“On May 17, the New York Racing Association, Inc. (NYRA) temporarily suspended Bob Baffert from entering horses in races and occupying stall space at Belmont Park, Saratoga Race Course and Aqueduct Racetrack. NYRA took this action to protect the integrity of the sport for our fans, the betting public and racing participants following Mr. Baffert's public acknowledgement that the Kentucky Derby winner Medina Spirit tested positive for betamethasone, a banned corticosteroid. In making the determination to temporarily suspend Mr. Baffert, NYRA took into account the fact that other horses trained by Mr. Baffert have failed drug tests in the recent past, resulting in the assessment of penalties against him by Thoroughbred racing regulators in Kentucky, California, and Arkansas. NYRA will vigorously defend the action it has taken in this matter.”

The post Baffert Files Suit Against NYRA appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Former Baffert Trainee Du Jour Pointed For Grade 1 Belmont Derby

Du Jour, the winner of the G2 American Turf when conditioned by embattled trainer Bob Baffert, has been transferred to the barn of Bill Mott, according to the Daily Racing Form. The 3-year-old colt, owned by Baffert's wife, Jill, in partnership with Debbie Lanni, is being pointed to the Grade 1 Belmont Derby on July 10.

Baffert has been indefinitely banned from entering horses or utilizing stalls at New York Racing Association racetracks after the Medina Spirit Kentucky Derby controversy, including Belmont Park, hence the trainer switch.

Du Jour, a son of Temple City, has breezed twice for Mott at Belmont: a 49.23-second half on June 6, and a 48.62-second half on June 13. Mott said he believes the colt can move up in distance from the 1 1/8 miles of the American Turf to the 1 1/4 miles of the Belmont Derby.

Other horses reported to have been moved out of Baffert's barn include Bezos, Hozier, and Crystal Ball. All three have been transferred to Rodolphe Brisset, reports Horse Racing Nation, but the new trainer indicated the change has nothing to do with Baffert's Medina Spirit controversy.

“It's just the ownership and Mr. Baffert talked and decided to leave those horses around here and not bring them back to California,” Brisset told HRN.

Hozier will be pointed to the G3 Ohio Derby on June 26 at Thistledown, while Crystal Ball is headed to the Lady Jacqueline Stakes on the same card. No target has yet been named for Bezos.

Read more at the Daily Racing Form and at Horse Racing Nation.

The post Former Baffert Trainee Du Jour Pointed For Grade 1 Belmont Derby appeared first on Horse Racing News | Paulick Report.

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The Week in Review: Attorney Vienna’s Take on Baffert-Betamethasone Case

Having practiced law for more than 25 years, attorney Darrell Vienna has pretty much seen all there is to see when it comes to equine law, drug infractions, penalties and how racing commissions and courts interpret the rules. A former trainer based in California, he is renowned as one of the foremost experts in his field. So when it comes to the case of Medina Spirit (Protonico) and the positive test for betamethasone following the GI Kentucky Derby, his brain is well worth picking. And Vienna has said that he believes that, when it is all said and done, there may be some good news for the Bob Baffert team and some bad news.

While the case involves dozens of issues, the two that are most pertinent are these: Should Baffert, due to mitigating circumstances, get off without receiving a fine or suspension; and what are the chances that the courts or the Kentucky Horse Racing Commission, due to those same mitigating factors, will rule that the Derby result should stand with Medina Spirit being declared the official winner?

The lawyers representing Baffert and owner Amr Zedan have been presenting the case that the drug got into Medina Spirit's system not through an injection, but the through the application of a topical ointment use to treat a skin problem. That, they argue, would mean that the medication inadvertently got into the horse's system and that there was no attempt to use it as a performance-enhancer. They have asked a court to rule that the Kentucky Horse Racing Commission must turn over a portion of the remaining post-race urine sample so that it can be sent for further testing to determine if in fact the betamethasone came from the ointment, Otomax.

“It appears to me that the argument [from the Medina Spirit legal team] is going to be twofold,” Vienna said. “Yes, there was a positive. But their interpretation of the rules is that if it wasn't injected and, instead was applied, that it wasn't a violation of the rules.”

Is that relevant? Quite possibly, yes. Kentucky's racing regulations cover just that sort of situation. The rule reads: “The stewards, judges, and the commission shall consider any mitigating or aggravating circumstances properly presented when assessing penalties pursuant to this administrative regulation.”

That could mean, Vienna said, that Baffert will not be subject to a fine or suspension.

“Let's assume that everything we have heard is correct and it was a result of the administration of a topical ointment,” Vienna said. “Then I think the adjudicator, whether it's the stewards or a hearing officer, will take those facts into account and make a determination as to whether or not they constituted mitigation and if so what is the extent or weight of that mitigation? Could Baffert leave that hearing without any sanction? Yes.”

Vienna said that a legal precedent was set in the 1994 case of Lavin v. California Horse Racing Board (CHRB), which the court heard after three horses tested positive for scopolamine. A California court ruled that the trainers involved should be exonerated, but the horses were still disqualified, costing their owners the purse money.

The same could happen with Medina Spirit. Though there might have been mitigating circumstances to explain how the drug got in the horse's system, it doesn't appear, Vienna said, that such a finding is relevant when it comes to whether or not a horse should be disqualified for a drug positive.

“If there is a finding of a drug positive in an official post-race sample and if that is confirmed by split sample testing, which is the case in this situation, it would call for a disqualification,” Vienna said. “I don't believe there are any mitigating circumstances involved with that.”

(Full disclosure: Vienna represented owner/trainer Mick Ruis in his efforts to have the Baffert-trained Justify (Scat Daddy) disqualified from his victory in the 2018 GI Santa Anita Derby because he tested positive for scopolamine).

Then there are the bans handed down against Baffert by Churchill Downs and the New York Racing Association. For Baffert, the Churchill ban of two years could be particularly damaging because it would mean that he cannot compete in the 2022 and 2023 Kentucky Derby. Baffert's lawyer Craig Robertson has yet to say much about those penalties, but it can only be a matter of time before he tackles that issue. Some believe that a privately owned racetrack has the legal right to ban trainers. Some aren't so sure. So that issue could also ultimately wind up in the courts. Vienna's opinion is that Churchill and NYRA banned Baffert without due process.

“There is a bigger issue [than the betamethasone positive] and it's the exclusion of a trainer,” he said. “The exclusion of a trainer from a racing facility, which has been imposed on Baffert both at Churchill Downs and by the New York Racing Association, is really unfortunate and inappropriate. Mr. Baffert has not had an opportunity to defend himself, to see what the accusation is and to be able to marshal and present evidence in his defense. To exclude him without the barest minimum of due process, that's a big issue. It might be more sexy and juicy to talk about the disqualification of a Derby winner, but this disregard for basic due process is a really big issue and is important. I'm absolutely opposed to that and I think we should all be concerned about the exclusion of a licensed person without due process. It is absolutely improper for him to be excluded from any racetrack before he has had a hearing.”

Vienna will get no disagreement from Robertson, who is a worthy foe for the Kentucky Horse Racing Commission. Baffert and Zedan presumably have deep pockets and don't seem inclined to go down without a fierce fight. That means the case could be tied up in the courts for years. In the meantime, the debate rages on. Is Baffert guilty? Should Medina Spirit be disqualified? As they say, stay tuned.

Rick Porter, a True Credit to the Game

The racing game lost a giant last week when owner Rick Porter passed away at age 80 after a lengthy battle with cancer. Porter represented everything that is good about this sport and racing could use a lot more just like him.

Porter was successful, a class act, a sportsman who truly loved the animal. That's why the breakdown of his Eight Belles in the 2008 Derby was so painful for him, to the point that it almost led him to get out of the business.

Many will remember him for the stars he campaigned, Songbird, Havre de Grace, Kodiak Cowboy, Hard Spun or for the time he brought World War II-D Day veterans to the track to meet Omaha Beach.

But his most lasting contribution to the sport came through his work with the National Thoroughbred Welfare Organization (NTWO), a charity he created. That some horses wind up in a slaughterhouse after their days on the track are through obviously troubled him, so he set out to do something about it. Porter dispatched his able assistant Victoria Keith to Louisiana, where the slaughter issue was an on-going problem. Thanks to Porter's effort, the NTWO saved hundreds of horses who otherwise might have been slaughtered. Talk about walking the walk.

Monmouth Handle Roars Back

Because the handle was down significantly over the first two weeks of racing, some surmised that bettors were staying away from Monmouth Park because the jockeys were no longer allowed to whip their horses.

But the story changed significantly during week three. Monmouth put together its best card of the season Saturday. There were 13 races, five of them on the grass, and the average field size was 8.07. It was a quality product and the bettors responded. The handle was $6,180,159. On the corresponding day in 2019 they bet $4,744,905. (Due to the coronavirus, there was no racing on this date in 2020). On Sunday, an 11-race card handled $4,893,374. On the corresponding day in 2019 and on a 12-race card, they handled $3,244,618.

The post The Week in Review: Attorney Vienna’s Take on Baffert-Betamethasone Case appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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In Baffert Case, Sides Haggle Over Urine Sample

Lawyers representing the Kentucky Horse Racing Commission (KHRC) and Bob Baffert squared off before Franklin Circuit County Judge Thomas Wingate Friday morning in a dispute over whether or not additional urine samples from Medina Spirit (Protonico) from the GI Kentucky Derby should be made available to the defendants' lawyers and, if so, in what quantity?

The Baffert team has asked for an additional urine sample because it believes further testing can prove that the drug in question, Betamethasone, found its way into Medina Spirit through an ointment used to clear up a skin condition and not through an injection. The KHRC argued that it needs to retain what's left of Medina Spirit's urine sample in case there is a need for further testing on its part or some sort of unforeseen problem related to testing.

Wingate asked the two sides to negotiate and come to a compromise. He said that if the sides could not agree, he would issue a ruling Wednesday. Wingate made it clear that he wants at least some of the urine to be handed over to the Baffert team.

“You sort of see where I am going and I think that if you come up with something more palatable and are afraid of how I am going to rule then do it. Fair enough?” Wingate said.

The hearing was held over Zoom and, at times, only Wingate could be heard clearly. For the most part, the statements made by KHRC attorney Jennifer Wolsing were inaudible.

The lawyers representing Baffert and Medina Spirit's owner, Amr Zedan, are building a case that the drug got into the colt's system through the ointment. They have said that would be the sort of mitigating circumstances needed to conclude that there was no attempt to improve the horse's performance, reason enough for Baffert to be exonerated and the original order of the Kentucky Derby to be upheld.

Also at issue is whether or not it matters where the Betamethasone came from. The courts and the KHRC might ultimately decide that is irrelevant, that the very presence of the drug is enough to warrant a disqualification, no matter the source of the drug.

“The rules of the Kentucky Horse Racing Commission are clear,” said Baffert's lawyer Craig Robertson. “Some 63 times in their rules it states that a trainer is allowed to present mitigating circumstances in consideration of a penalty. Proving that this was an ointment and it did not come from an injection is, at the bare minimum, a mitigating circumstance. We should be allowed and should be entitled to present that evidence and obtain that evidence to scientifically prove these facts.”

Robertson also touched upon public perceptions involving this case and the potential damage that could be done to Baffert's reputation.

“From a public perception perspective, my client has been excoriated unfairly and publicly about this and he's been accused of injecting this horse to cheat to win the Kentucky Derby,” Robertson said. “That this is a banned substance. That this is doping. None of which is true. We have an opportunity to get scientific evidence to prove that it's not true and they're trying to keep us from doing that. That's not fair.”

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