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Baffert’s Attorneys File Letter Protesting Planned NYRA Hearing

Attorneys for embattled trainer Bob Baffert have filed a letter with U.S. District Judge Carol Bagley Amon, notifying the court they intend to file a motion to hold NYRA in contempt and stay the racing organization's planned hearings.

NYRA had temporarily banned Baffert ahead of this year's Belmont Stakes, citing his recent history of medication violations and conflicting public statements around the betamethasone overage in Medina Spirit, the reigning Kentucky Derby winner. The organization informed Baffert of its decision in May, triggering a civil suit from Baffert in the Eastern District of New York. Baffert won a motion for preliminary injunction against the racing organization after Amon ruled in July that NYRA could not rule him off without a hearing allowing him to address the organization's accusations against him.

Read more about that decision here.

On Sept. 10, NYRA released a statement of charges against Baffert and fellow trainer Marcus Vitali, along with dates for preliminary hearings to deal with scheduling and logistics for formal hearings into whether they should be denied privileges at the organization's tracks. Those preliminary hearing dates had been scheduled for next week. Baffert's preliminary hearing has since been pushed back to Oct. 11 — a date which all parties have agreed to, according to NYRA.

In a letter filed on Baffert's behalf, attorney Craig Robertson claims that NYRA's announcement it intended to proceed with a hearing is in “direct contravention” of the court's order, since the organization did not appeal the judge's ruling on the motion for preliminary injunction. NYRA's list of charges against Baffert released two weeks ago is nearly identical to the reasons it gave for banning him earlier this year.

“The only thing different is that it appears that NYRA has concocted some procedures — apparently just for this case — in an attempt to retroactively install legitimacy to its blatantly unlawful actions,” Robertson wrote.

Further, Robertson said “The Court made it clear to NYRA in oral argument that it was 'too late' to try to give Baffert an after-the-fact hearing to fix its errors … NYRA cannot turn around and attempt to reissue the same suspension based on the same factual allegations — as it has explicitly stated it aims to do — when this Court has enjoined that very conduct.

“There is nothing new which has transpired since NYRA was enjoined. No new facts, no new allegations. If anything, the facts have moved more solidly in Baffert's favor and toward maintaining the status quo, as Baffert has raced several horses at the recent Saratoga meet without incident.”

NYRA issued the following statement via a spokesman soon after news broke of the coming filing:

“Contrary to the assertion filed in court today, Mr. Baffert is not currently under suspension at any NYRA racetrack. In fact, Mr. Baffert is free to stable horses and enter races at all NYRA facilities, just as he has been for the past two months,” said Pat McKenna, senior director of communications for NYRA.

“NYRA is not seeking to 'enforce' the May 17, 2021 letter temporarily suspending him. That letter is no longer in effect and NYRA does not now or in the future intend to enforce or otherwise invoke that letter as the basis for any action taken against Mr. Baffert. The current NYRA hearing proceeding was independently commenced pursuant to NYRA's common law and regulatory authority to exclude licensees, subject to the requirements of due process, and in full compliance with the U.S. District Court's order and memorandum, dated July 14, 2021, in Bob Baffert v. The New York Racing Association, Inc.”

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Baffert Legal Team May File Contempt Motion Against NYRA

A lawyer representing trainer Bob Baffert has notified the judge handling Baffert's legal dispute with the New York Racing Association that he intends to file a motion to hold NYRA in contempt and will also seek a stay that would prevent NYRA from taking any immediate action that could lead to Baffert being suspended.

Those intentions were part of a letter sent Tuesday by Baffert attorney Craig Robertson to Judge Carol Bagley Amon, Senior United States District Judge of the United States District Court for the Eastern District of New York. Robertson asked for a pre-motion conference to go over what are the latest developments in the Baffert-NYRA case.

After it was revealed that the Baffert-trained Medina Sprit (Protonico) tested positive for the substance betamethasone following the GI Kentucky Derby, NYRA announced on May 17 plans to temporarily suspend the Hall of Fame trainer. Baffert fought back and was granted a preliminary injunction by Amon, who ruled that Baffert's right to due process had been violated because NYRA took the action without giving him a hearing. That allowed Baffert to enter horses at Saratoga, but did not end his legal ordeal with NYRA.

On Sept. 10, NYRA announced that it had scheduled a hearing for Baffert, who, NYRA contended, has engaged in conduct detrimental to the best interest of the sport. The hearing is now scheduled to begin Oct. 11 and O. Peter Sherwood, a retired New York State Supreme Court Justice, is scheduled to serve as the hearing officer.

Robertson's argument revolves around the July 14 decision from Amon, which he writes, meant that NYRA cannot go forward until the case before Amon is fully adjudicated.

“On July 14, 2021, this Court entered an Order enjoining NYRA from enforcing its suspension,” Robertson wrote. “The Court directed that NYRA was enjoined 'pending the final hearing and determination of this action.' NYRA did not appeal the Court's ruling.”

Robertson wrote that the scheduling of a hearing was in “direct contravention” of Amon's July 4 ruling.
“…on Sept. 10, 2021, NYRA sent Baffert another letter stating that it was instituting renewed proceedings to impose the exact same suspension which was enjoined,” Robertson wrote. “The reasons set forth in NYRA's Sept. 10 letter for why it wants to suspend Baffert are the exact same ones set forth in its May 17 letter. The only thing different is that it appears that NYRA has concocted some procedures–apparently just for this case–in an attempt to retroactively install legitimacy to its blatantly unlawful actions. These 'procedures' did not exist until NYRA created them out of whole cloth two months after the Court refused to allow it to arbitrarily suspend Baffert…”

NYRA spokesperson Pat McKenna maintained that all actions taken by NYRA have been in compliance of Amon's July 14 ruling.

“NYRA is not seeking to 'enforce' the May 17, 2021 letter temporarily suspending (Baffert),” he said. “That letter is no longer in effect and NYRA does not now or in the future intend to enforce or otherwise invoke that letter as the basis for any action taken against Mr. Baffert. The current NYRA hearing proceeding was independently commenced pursuant to NYRA's common law and regulatory authority to exclude licensees, subject to the requirements of due process, and in full compliance with the U.S. District Court's order and memorandum, dated July 14, 2021, in Bob Baffert v. The New York Racing Association, Inc.”

Robertson cites NYRA's recent actions as the reason why it should be held in contempt. He wrote that the Sept. 10 letter sent to Baffert notifying him that a hearing had been scheduled was “clear and convincing evidence of noncompliance with the Court's Order.”

“In reality, the only difference between the original suspension letter (which has now been enjoined) and NYRA's latest suspension letter is the date on the letterhead,” Robertson wrote. “Until this litigation is concluded, NYRA cannot move forward with attempting to enforce a suspension against Baffert that is identical to the one which has been enjoined. NYRA should be found in contempt of this Court's injunction Order and NYRA's renewed effort to suspend Baffert should be stayed.”

After getting the stay, Baffert had six starts at Saratoga with one win. The victory came with Gamine (Into Mischief) in the GI Ballerina S. That Baffert competed in Saratoga without incident is, Robertson wrote, still another reason why NYRA should not be looking to suspend him at this time.

“There is nothing new which has transpired since NYRA was enjoined,” he wrote. “No new facts, no new allegations. If anything, the facts have moved more solidly in Baffert's favor and toward maintaining the status quo as Baffert raced several horses at the recent Saratoga meet without incident.”

According to the letter, Baffert has a final draft of his motion filed and will submit it if NYRA continues to move forward with efforts to suspend the trainer.

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Baffert Should Be Allowed To Run in Breeders’ Cup

The Week In Review, by Bill Finley

The Breeders' Cup announced Saturday that it had begun a review process to determine whether or not trainer Bob Baffert will be allowed to compete in this year's championship event. The outcome of that review is pending.

“The Breeders' Cup Board has commenced a review process as to whether Bob Baffert will be permitted to participate in this year's Breeders' Cup world championships,” read a statement from the Breeders' Cup. “The process will include an opportunity for Mr. Baffert to present his case and will conclude in advance of pre-entry for the 2021 world championships.”

The statement came shortly after a Breeders' Cup Board of Directors meeting was held Friday. No doubt, Baffert's status was brought up at the meeting. The Breeders' Cup said it has no further comment at this time.

By now, you all know the story. Baffert had five drug positives over a one-year period, including one in the GI Kentucky Derby, where race winner Medina Spirit (Protonico) tested positive for betamethasone. That led Churchill Downs to issue a two-year suspension, which, if not overturned, will keep him from entering in the 2022 and 2023 Derbies, as well as the GI Kentucky Oaks and all other Churchill stakes races. The New York Racing Association has also taken steps to ban Baffert. Other tracks, including Santa Anita, Pimlico, Monmouth and Del Mar have said that Baffert is welcome

Now, the Breeders' Cup will have its say.

There are no easy answers when it comes to Baffert and his situation, but the Breeders' Cup would be doing the wrong thing if it decides the Hall of Fame trainer will not be allowed to enter horses at this year's event.

For one thing, it's too late. If the Breeders' Cup was going to exclude Baffert, it needed to do so shortly after the Medina Spirit positive became public. That's what Churchill and NYRA did. For the most part, nothing has changed since the Derby and there's no reason why a decision couldn't have been made back in May or early June. Now, the clock is ticking, there are fewer than seven weeks until the Breeders' Cup begins and the Breeders' Cup has not said when it will make its decision regarding Baffert. While there's little sympathy in the industry for Baffert's owners, it would be unfair to them to make them switch trainers this close to the event.

And if you want to ban him, be prepared for a court fight that you will probably lose. Baffert and his lawyers have already taken on NYRA and won an early round in their fight against them. To get an injunction that would, at least temporarily, overturn a Breeders' Cup ban probably wouldn't be that hard to accomplish.

But the most important question is this: Does he deserve a Breeders' Cup ban?

While perhaps sounding like a Baffert apologist, which might be an unpopular stance to take, banning him from the Breeders' Cup would be a case of piling on. Yes, he deserves some punishment for all the positives. It's inexcusable for a trainer to have so many in such a short period of time and when you factor in that Baffert has been the face of racing for all these many years, the offense looks all the more serious. This is a sport that has been knocked around pretty good over the last three years or so and all the black eyes have taken quite a toll. Baffert threw gasoline on all the sport's problems.

Still, the punishment is supposed to fit the crime.

What Churchill has done to Baffert will seriously impact his career over the next two years. Not only can't he run in the next two Derbies, but horses he trains will not be eligible to pick up Derby points in the preps. It hasn't happened yet, but there's sure to be a mass exodus from his barn, as no owner with a serious Derby or Oaks candidate will leave their horse in a stable ineligible for those races and not eligible for qualifying points. Expect horses to start going elsewhere early next year. Then there's the potential of a ban at NYRA, which if successful, will keep him out of the GI Belmont S., the GI Travers S. and the dozens of other major races run in New York. That would mean even more horses lost.

That's an awful big bite for a trainer who has been caught only with overages of therapeutic medications. Betamethasone is not a performance-enhancer per se, and neither are the other drugs involved when it comes to the Baffert positives. This is not at all comparable to the Jason Servis-Jorge Navarro situation and all its ugliness.

To have penalized Baffert is fine. But don't keep him out of the Breeders' Cup. At some point, enough is enough.

Europeans Dominate Again…

Walton Street (GB) (Cape Cross {Ire}) is a nice-enough horse, but far from the brightest star in the Charlie Appleby barn. A 7-year-old gelding, he had two wins this year in Dubai before resurfacing last month in Germany, where he finished third in the G1 Longines Grosser Preis von Berlin. Desert Encounter (Ire) (Halling) is a 9-year-old gelding who hadn't won a race in two years. The winner of the Canadian International in 2018 and 2019, his best days seemed to be well behind him.

But when these two finished first and second in Saturday's GI Pattison Canadian International S. at Woodbine, no one should have been surprised. They were the only two European-based horses in the race, and this has been a year where the foreign horses have wiped the floor with their North American counterparts.

About 10 minutes after the Canadian International, Appleby struck again. His 3-year-old gelding Yibir (GB) Dubawi {Ire}) won the $1-million Jockey Club Derby Invitational S. at Belmont Park. He was coming off a win in the GII Sky Bet Great Voltigeur S. at York in England. Yibir is a top horse, but no match for stablemates like G1 Dubai Duty Free Irish Derby and G1 Cazoo St Leger S. winner Hurricane Lane (Ire) (Frankel {GB}) or G1 Cazoo Derby and G1 King George VI and Queen Elizabeth QIPCO S. winner Adayar (Ire) (Frankel {GB}). The second string came through again.

European grass horses are supposed to be better than U.S. grass horses. Our best horses run on the dirt and their best horses race on the grass. But, based on the results of this year's grass racing over here, never has the gap been so big. European horses with modest credentials keep coming here and winning rich, important races.

Appleby and the powerful Godolphin Stable has led the way. He first showed up on June 5 and finished one-two in the GI Longines Just a Game S. with Althiqa (GB) (Dark Angel {Ire}) and Summer Romance (Ire) (Kingman {GB}). Six weeks later, the same pair finished first and second again in the GI Diana S. Althiqa, who has not started since the Diana, had won a Group 2 in Dubai and a listed stakes in France. Appleby has had four stakes wins in the North America this year and finished one-two in two Grade I's. He has three Grade I wins and the Jockey Club Derby is not a Grade I only because this was just its second running.

Aidan O'Brien also has three Grade I wins on this side of the Atlantic. He won the GI Belmont Derby Invitational with Bolshoi Ballet (Ire) (Galileo {Ire}). His Santa Barbara (Ire) (Camelot {GB}) won the GI Belmont Oaks Invitational and the GI Beverly D. S. He didn't miss by much when Japan (GB) (Galileo {Ire}) was second, beaten a neck, in the GI Sword Dancer S. at Saratoga. They're all very good horses, but don't have the star power of some of their stablemates.

O'Brien' s son, Joseph, has also had a remarkable year here. His Baron Samedi (GB) (Harbour Watch {Ire}) won the GII Belmont Gold Cup S. and he won the GI Saratoga Derby Invitational with State of Rest (Ire) (Starspangledbanner {Aus}). Perhaps more so than any other horse, State of Rest tells the story of what has been happening this year. Prior to his arrival in Saratoga, he had won just once and was coming off a third-place finish in a listed stakes at the Curragh. He did not look like Grade I material.

After the U.S. based 2-year-old grass horses held their own on Breeders' Cup Friday last year, the Saturday grass races were dominated by the Europeans. They won all four, which included a one-two-three sweep of the GI Breeders' Cup Mile by Aidan O'Brien. The race was won by 73-1 shot Order of Australia (Ire) (Australia {GB}).

For this year's Breeders' Cup, the American contingent looks particularly weak. The best U.S.-based grass horse appears to be Domestic Spending (GB) (Kingman {GB}). He's won a pair of Grade I races this year for Chad Brown, but had to settle for second last time out in the GI Mr. D. S. at Arlington. Beyond Domestic Spending, the list is thin.

Come Breeders' Cup weekend, it could be a long couple of afternoons for the U.S. grass horses.

Mejia Deserves His Punishment…

The Monmouth stewards didn't show an ounce of mercy toward Tomas Mejia, who was hit with a 10-year suspension for carrying a battery in a race earlier this month at Monmouth. They also recommended that the New Jersey Racing Commission take away his license permanently. Either way, at least in this country, Mejia's career is likely over. A 26-year-old journeyman who has never won more than 51 races in a year who now has this on his record, he's not going to be able to launch any kind of comeback ten years from now.

Using a battery on a horse is despicable and it is cruel and there must be zero tolerance for it. It's hard to imagine that Mejia was the only one who had used one during the Monmouth meet, but there's no going back. If other jockeys had used one, they probably have gotten away with it. The New Jersey racing season is almost over, but let's hope that management and the New Jersey Racing Commission will do everything in its power going forward to make sure this never happens again. That should mean frequent shakedowns at the gate.

The 10-year suspension is believed to be the stiffest ever handed down to a jockey for a battery and a lifetime ban by the commission would be unprecedented. But it was the right call. Let's hope that the Monmouth stewards have established a template going forward for others. Ten years should be the minimum penalty for anyone caught with a battery. Better yet, use a battery and you should never be permitted to ride in a race again.

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View From The Eighth Pole: Will Breeders’ Cup Officials Act To Protect Their Brand?

On June 2, Churchill Downs Inc. suspended trainer Bob Baffert from running horses at any of its racetracks, including its flagship facility in Louisville, Ky., for two years, meaning the sport's most recognizable face and name will not be eligible to add to his record number of Kentucky Derby victories until 2024, at the earliest.

The New York Racing Association is similarly taking steps to ban Baffert, scheduling a Sept. 27 hearing where the Hall of Fame trainer and his attorneys will have an opportunity to respond to the statement of charges against him.

The actions by these two major racing associations – each exercising their private property rights – were triggered by the failed drug test of Medina Spirit, who was found to have impermissible levels of betamethasone in his system after crossing the line first in the 147^th running of the Kentucky Derby on May 1. The win was Baffert's seventh in the Derby, giving him one more – at least for now – than Ben Jones, whose runners won the roses six times from 1938-'52.

But there is a very good chance Medina Spirit will be disqualified from his victory and placed last whenever the Kentucky Horse Racing Commission gets around to conducting a hearing on the matter. If Medina Spirit has the Derby title taken away, you can bet this case will work its way through civil courts over the next several years.

A Kentucky Derby drug disqualification would be an embarrassment to the sport and to the brand that Churchill Downs Inc. cherishes so much – and profits from greatly. Medina Spirit's failed test came less than eight months after Gamine tested positive for the same corticosteroid after finishing third as the odds-on favorite in the Kentucky Oaks – the second most important race held annually at Churchill Downs. She was disqualified and Baffert was fined $1,500 for the medication violation.

Baffert blamed withdrawal guidelines for Gamine's failed drug test. In the case of Medina Spirit, he said something called “cancel culture” led to the suspension by Churchill Downs officials. Baffert took his bizarre blame game on a media tour for several days where he denied ever using betamethasone on a horse (except, presumably, for Gamine) and complained that “we live in a different world now. This, this America is different.”

And then, one week later, it was … oops, never mind. Baffert's team did treat Medina Spirit with betamethasone, he admitted in a written statement, but it was in an ointment called Otomax designed for ear infections in dogs the trainer said was used to treat a skin rash Medina Spirit developed a month before the Kentucky Derby. This was “good” betamethasone, he and his attorneys argued, not the injectable form of the drug that was given to Gamine.

And then, wisely, Baffert left the talking up to his attorneys.

The damage was already done. The trainer had become a sad punchline on late night TV and even on the ESPY award show on ESPN. The sport and its marquee event suffered collateral damage.

Churchill Downs tried to restore some sense of integrity with its temporary suspension of Baffert on May 9 and the more definitive two-year suspension handed him on June 2 after the split sample also came back positive for betamethasone.

“Reckless practices and substance violations that jeopardize the safety of our equine and human athletes or compromise the integrity of our sport are not acceptable and as a company we must take measures to demonstrate that they will not be tolerated,” Churchill Downs Inc. CEO Bill Carstanjen said about Baffert's pattern of medication violations.

But like everything else in racing, nothing is uniform and the Churchill Downs ban did not extend outside of the boundaries of its properties. Baffert ran Medina Spirit back in the Preakness Stakes on May 15, and he was welcome to return to his home base in Southern California and race at Santa Anita and Del Mar as if nothing had happened.

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Baffert's attorneys won the first round in a court battle against the New York Racing Association, reinstating his right to race at NYRA tracks at least until he is given a hearing. That comes in less than two weeks. A hearing officer will listen to the testimony, weigh the evidence and make a decision on the matter. But that, too, will only affect Baffert's right to race in New York.

NYRA's statement of charges against Baffert cites three additional positive drug tests the trainer accumulated over a 365-day period: lidocaine positives for Charlatan in a division of the Arkansas Derby and Gamine (yes, her again) in an Oaklawn Park allowance race, both on May 2, 2020; and a dextrorphan positive in Merneith after a second-place finish in an allowance race at Del Mar July 25, 2020.

Of course, Baffert had excuses for those three failed drug tests. Gamine and Charlatan tested positive, the trainer said, because his assistant trainer was wearing a pain patch on his lower back that contained lidocaine and it must have somehow contaminated the horses. Merneith tested positive, he said, because a groom who had been taking cough syrup urinated in the filly's stall.

Members of the Arkansas Racing Commission bought the pain patch pitch, overruling a stewards ruling to disqualify both Charlatan and Gamine from their Oaklawn victories. And the CHRB stewards put on their kid gloves before fining him $2,500 for Merneith's failed drug test.

After four failed drug tests in just over four months, Baffert pledged to “get better,” and said he was hiring Dr. Michael Hore of the Hagyard Equine Medical Institute in Kentucky to “add an additional layer of protection to ensure the well-being of horses in my care and rule compliance. … I am increasing the training and awareness of all my employees when it comes to proper protocols. … I am personally increasing my oversight and commitment to running a tight ship and being careful that protective measures are in place.

“I want to raise the bar and set the standard for equine safety and rule compliance going forward,” Baffert said.

That was last Nov. 4, Breeders' Cup week at Keeneland.

It all sounded fine, except Hore was never hired to monitor the Baffert operation. And apparently, neither his vet, his staff or Baffert himself read the Otomax packaging or label to see that one of the ointment's three ingredients was betamethasone.

Last week, Churchill Downs dropped another hammer on Baffert, saying that horses in the care of a trainer suspended by Churchill Downs (meaning Baffert) could not earn official qualifying points on the Road to the 2022 Kentucky Derby. That move is designed to put pressure on owners who currently have their horses with Baffert to move them to another trainer before the points races begin in earnest.

The fact that Baffert is ineligible to run horses in the 2022 or 2023 Kentucky Oaks or Derby does not seem to have phased some of his owners, including SF Bloodstock and Starlight Racing, which spent nearly $3 million on five yearlings before the first two sessions of the Keeneland September Yearling Sale had ended, reportedly with the intention of sending them to Baffert to train.

One group that has not been heard from is the Breeders' Cup, whose two-day world championships take place this year at Del Mar on Nov. 5-6. As of now, Baffert will be eligible to race, and it seems unlikely that will change, given the fact that his five failed drug tests do not constitute a violation of the Breeders' Cup Convicted Trainers Rule. That rule disqualifies a trainer from participating if he or she has been sanctioned in the previous 12 months for a Class 1 violation carrying Category A or B penalties or a Class 2 violation carrying a Category A penalty. Those classifications (with Class 1 considered the most serious) are determined by the Association of Racing Commissioners International. None of Baffert's violations are Class 1 or Class 2, including the pending case involving Medina Spirit.

The Breeders' Cup board presumably could opt to take action against Baffert by further refining the Convicted Trainers Rule. The board consists of 13 men and one woman – all but two of whom have a direct or indirect financial relationship with the trainer, starting with chairman Fred W. Hertrich III, who has had ownership interests in several Baffert runners, including the disqualified and then reinstated Arkansas Derby winner Charlatan. Eleven others either own horses in Baffert's stable or stand stallions that he once trained and several hope to catch his eye with their yearlings sold at public auction.

As fiduciaries working on behalf of the breeders and owners who help fund the program through foal, racehorse and stallion nominations and entry fees, the board must do what is right for the Breeders' Cup and the brand it has developed over the last 37 years as a championship event that attracts the best Thoroughbreds in the world. They have the same responsibility to protect that brand as the officials at publicly traded Churchill Downs Inc. who decided enough is enough.

That's my view from the eighth pole.

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