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After Extended Hearing, No Decision Expected Soon On Justify/Hoppertunity DQ Question

After a five-hour marathon hearing, there is no decision yet on the question of whether Justify may be disqualified from his win in the 2018 Grade 1 Santa Anita Derby or whether Hoppertunity could be disqualified from his win in the G3 Tokyo City Cup on the following day. Stewards heard evidence from attorneys on a California Horse Racing Board (CHRB) complaint, which sought disqualification of the horses but no action against trainer Bob Baffert due to post-race tests for scopolamine.

“Once I get the transcript [from Thursday's hearing], it will take me a little while to write a decision, whatever that decision will be,” said steward John Herbuveaux, who led the proceedings. “It's not going to be something that will happen within the very near future.

“I would also like to state for the record that whatever decision this board comes to, it is appealable.”

The CHRB made the decision in a closed-doors executive session in summer 2018 not to pursue disciplinary action or disqualify horses after a cluster of positive tests for scopolamine across multiple barns, which CHRB staff determined was a result of exposure to jimsonweed in hay. The CHRB recently settled a civil suit with Bolt d'Oro owner Mick Ruis, whose horse finished behind Justify in the Santa Anita Derby, and agreed to file a complaint seeking disqualification as part of that settlement. Connections of Justify and Hoppertunity subsequently filed suit in Los Angeles Superior Court seeking a temporary restraining order to prevent the stewards from hearing the case. The application for that restraining order was denied.

According to testimony on Thursday, CHRB investigators questioned barn staff and hay suppliers after getting positive scopolamine test results to learn more about how a scopolamine exposure may have occurred. CHRB equine medical director Dr. Rick Arthur said investigators took samples of plants from the area where hay was grown for the Santa Anita backstretch and discovered jimsonweed.

Arthur, who was called to testify by Bob Baffert attorney Craig Robertson, has not changed his position on the scopolamine finding, stating that he believes it was a clear case of contamination.

“You should really look at this as a horse poisoning,” Arthur said.

Arthur said he viewed the scopolamine case as similar to that of zilpaterol findings, which have been linked to feed contamination in most situations. The board did not pursue action in those cases because it was accepted that exposure to the substance was beyond the connections' control. In total, Arthur said there were 15 other cases of horses testing positive for scopolamine at the time, of which five were over the screening limit.

Dr. Steven Barker, professor emeritus at the Louisiana State University's School of Veterinary Medicine and longtime director of LSU's Equine Medication Surveillance Laboratory, testified that scopolamine would have no impact on a horse's performance in the levels found in Justify and Hoppertunity. Scopolamine has been used in a therapeutic capacity in humans for its impacts on smooth muscle, soothing motion sickness and nausea, and was used for a time in horses to combat gas colic. It has since been replaced with buscopan, which unlike scopolamine, doesn't cross the blood-brain barrier and impact behavior.

“It's more likely to have a detrimental effect on a horse who was positive,” Barker said of scopolamine's impact on performance, noting that it has been found to have a sedation-like effect when used therapeutically.

For the amount of scopolamine detected in Justify and Hoppertunity, Barker said they would have needed to eat roughly 11 grams and 6 grams of jimsonweed respectively — which he thought was very possible, given that the baling process may unevenly distribute small amounts of any given weed across different bales or flakes.

Robert Patterson, counsel for the CHRB, seemed uninterested in whether the substance had an impact on Justify's performance and focused instead on the letter of California regulation at the time of his race in 2018. Patterson asserted that California regulations designated scopolamine as a Class 3 substance then, and those regulations stated that horses completing races in the state with positive tests for Class 1, 2, or 3 substances afterwards shall be disqualified. Scopolamine was made a Class 4 substance at the start of 2019 in California.

Robertson disagreed that the substance's Class 3 status was binding. California regulation is designed to keep pace with the classification system put out by the Association of Racing Commissioners International (ARCI), which changed its classification of scopolamine much earlier than January 2019. California law prohibits a state agency from incorporating a rule by reference, meaning each time ARCI changes its guidelines, the CHRB has to draft and pass rule changes anew. Robertson said ARCI had the substance as a Class 4 at the time of Justify's start in the Santa Anita Derby, but the CHRB hadn't updated its regulations yet. Robertson believes that because the intent of California's rule is to mirror suggestions of ARCI, Baffert and the other connections shouldn't be punished for the Board failing to keep its regulations current.

Beyond that, attorneys for Justify's connections expressed frustration at the potential impacts of a disqualification so long after the race.

Amanda Groves, representing WinStar Farm, China Horse Club, Head of Plains Partners, Starlight Racing, and Mike Smith, said that the proceedings are “creating a cloud of uncertainty, the dreaded asterisk that goes next to some athletes' names.”

“It has had a negative effect on Justify's reputation and standing in the community of horse owners,” she said.

Further, Robertson questioned how a decision to disqualify the horse now could open a Pandora's Box for other Board decisions that could be finalized and reconsidered — and for the sport's reputation.

“We're going to kill the sport if we don't stop cases like this going forward,” said Robertson. “Every time we use the words 'drug positive' or 'disqualification' there are certain members of the press who are not fans f the sport and want to see it go away, they latch onto those words and flash it out there … the general public reads it and thinks a horse is being drugged, and that's not true.

“I urge the Board not to give them that headline.”

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Breeders’ Cup Presents The News Minute: A Camera For Every Contender

While the general public will not be able to attend the 2020 Breeders' Cup at Keeneland race course in Lexington, Ky., this Nov. 6-7, horse racing fans will have a unique opportunity to view this year's races like never before.

In addition to the NBCSN and NBC network coverage of the world championships, Breeders' Cup officials will be streaming a live multi-cast at breederscup.com that will feature up to 15 cameras for fans to take in all the action.

For the first time, a “Contenders Cam” will allow viewers to select which horse or horses they want to follow, from the time they arrive in the paddock to be saddled until they enter the starting gate.

There will also be up to two Jockey Cams for each race, providing a unique horseback view.

Learn more about the Breeders' Cup live multi-cast and other developments in today's News Minute.

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Different Jurisdictions, Different MMV Rules Could Play In Baffert’s Favor

As news broke Tuesday of another positive post-race drug test for a Bob Baffert trainee, some readers found themselves wondering — when do these alleged violations begin to add up to a single, long suspension?

The answer to that remains unclear, but it's probably, “They won't.”

After Charlatan and Gamine tested positive for lidocaine following their races at Oaklawn Park this spring, Baffert announced he would be appealing the 15-day suspension given out by the Arkansas Racing Commission.

As reported last week, Baffert-trained Gamine got a positive test post-race for betamethasone after her third-place finish as the favorite in the Grade 1 Kentucky Oaks, but that case has not yet been adjudicated because testing on the split sample is not complete. (If a split sample does come back negative, the commission will not pursue charges against a licensee.)

Finally, the most recent case, a positive test for dextorphan from Merneith – second in a July 25 allowance race at Del Mar – has been confirmed on split sample, but the stewards' hearing into the matter won't take place until Nov. 12.

That means, from a regulatory perspective, none of Baffert's positive tests from this year are closed cases yet.

A hearing will take place on Thursday into whether or not stewards should disqualify Justify or Hoppertunity from 2018 races based on scopolamine positives. The CHRB has already made clear that it is not pursuing action against Baffert's license in either of those cases after a recommendation by equine medical director Dr. Rick Arthur that the positive test likely resulted from hay contaminated with jimsonweed.

Baffert's home base of California provides a sliding scale of suspensions and fines for repeated medication violations in the same penalty class. (Lidocaine and dextorphan carry a Category or Class B penalty in Arkansas and California, while betamethasone carries a Class C penalty in Kentucky.) Per California rules, one Category B offense gets between 30 and 60 days' suspension, but a second offense in two years could carry 60 to 180 days. Currently however, stewards cannot take into account violations from other states when deciding what constitutes a repeat offense in a given penalty category; even if they could, they would have to focus on completed cases, meaning those not under appeal. That means that under current rules, if California stewards do decide to suspend Baffert for the dextorphan, they'll have to address it as a B violation in a vacuum when deciding on a suspension length or fine amount.

That may seem frustrating to readers who feel Baffert's violations are adding up, even if they are for therapeutic substances. This is the kind of situation a multiple medication violation (MMV) penalty system was designed to address. The MMV, which is in force in the Mid-Atlantic, is supposed to operate similarly to many state systems that assign points to a driver's license for repeat violations. Those points can compound the base fines or suspensions given out for a violation if the license holder is a repeat offender, regardless of the penalty category of previous offenses. The idea is that repeated low-level offenses eventually pack a big enough punch that a trainer will be more careful, even with therapeutic drugs that are regulated but not considered major performance enhancers. In an ideal world, the MMV system is supposed to tally offenses across jurisdictions.

California hasn't yet finalized adoption of MMV language but the rule is in process. The proposed language has completed the 45-day public comment period and is likely to be on the agenda for a Nov. 19 meeting of the CHRB to be publicly heard and (potentially) adopted. Even after that vote, however, a CHRB spokesman said it takes new rules roughly two months to complete the administrative process to become enacted, so California's MMV rule won't be live until early 2021. Part of the proposed rule language to be considered on Nov. 19 would allow stewards to consider violations from other jurisdictions. It remains legally unclear, but seems unlikely, however, that the CHRB could use out-of-state violations occurring before finalization of the MMV rule against a trainer after the rule's implementation.

Kentucky has not yet taken up MMV language. A 2016 initiative by former Kentucky Gov. Matt Bevin aimed at reducing red tape for Kentucky businesses required state agencies to reexamine and simplify existing language, which also slowed the drafting of new regulation.

Arkansas does have MMV language on the books. Currently, Baffert's appeal in Arkansas is still in progress. A spokeswoman for the Arkansas Racing Commission confirmed Wednesday that the case is still in the legal discovery process and no hearing date has been set.

MMV language will only allow officials to take into account points from cases where all appeals have been exhausted. So, Arkansas couldn't issue MMV points unless its appeal was concluded after proceedings in California and Kentucky are complete.

All this means that, if Kentucky officials confirm the betamethasone overage and California officials proceed with a suspension and/or fine for the dextorphan overage, they will likely be required to consider each case in their state's bubble, which would suggest fairly mild sanctions for each.

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Labor Shortage Could Be The Next Big Challenge For Racing, Industry Experts Say

The racing industry had a number of hurdles ahead of it before the COVID-19 pandemic hit. Reducing fatal breakdowns, creating a national regulatory body, attracting new owners and horseplayers, along with many other challenges, were all at the forefront of discussions before March 2020. Speaking at this week's American Horse Council National Issues Forum, industry experts say 2020 may have worsened the next big problem facing racing — the labor shortage.

In the short term, the pandemic made it difficult for people to travel to work in the United States on a short-term basis, but that problem may have been solved. Earlier this year, President Trump issued three proclamations that suspended the entry of aliens from certain countries due to concerns about the novel coronavirus. Several groups, including Breeders' Cup, the National Thoroughbred Racing Association, Keeneland, Kentucky Thoroughbred Association, and Fasig-Tipton, worked with the Department of Homeland Security to get exemptions for people traveling into the United States to buy horses at the autumn sales or to run at the Breeders' Cup. The president's restrictions allowed for exemptions that were in “the national interest” and through a very specific and detailed explanation of Thoroughbred economics, the industry groups were able to get exemptions for certain key players in both events. That discussion could ultimately prove helpful down the road.

“We were happy we were able to get that done,” said NTRA President and CEO Alex Waldrop. “I think it's a good story to tell. At this point in time, I think the Department of Homeland Security is very familiar with our industry, the international nature of our industry, and they're supportive of the national interest exemption where it's appropriate.”

That doesn't mean that when the pandemic is over, the horse racing industry will no longer face restrictions on international movement that impact its bottom line. It's no secret that trainers and farms have had difficulty in recent years accessing H-2A and H-2B visa workers to fill seasonal needs for grooms, hotwalkers, exercise riders, and farm workers. Those restrictions have only gotten tighter under the current administration, according to the Bryan Brendle, director of policy and legislative affairs for the American Horse Council.

The Department of Homeland Security has discretion to allow visas above the statutory cap, and while it did authorize supplemental H-2B visas in March, it only released 35,000 and not the 60,000 it could have released. (Trainers have previously said even with supplemental visas released they struggled to find staff.)

The issuance of new H-2B visas was put on hold in June. In August, the U.S. State Department, which handles the visa process in the home countries of guest workers, did create an exemption for caretakers of non-farm animals, which is how horses are classified in the visa system. That only freed up people who had been granted visas prior to the freeze and then been told not to travel to the United States, so the State Department's action didn't result in many additional workers coming into the States.

Eric Hamelback, CEO of the National HBPA, said he still regularly hears from trainers, including high-profile operations like Chad Brown, Todd Pletcher, and Dale Romans, who are unable to find enough help despite high unemployment figures in the States this year. Hamelback said he knew of operations at smaller tracks that had to close altogether because they couldn't find employees to take care of horses.

“While we are all on different pages with some items in this industry we can't be on different pages as we push for our workforce shortages, whether it's developing new programs here in the States or continuing to push for H-2B visas,” said Hamelback.

Waldrop said the “elephant in the room” is the potential impact of the upcoming national election on this issue.

“You have to ask yourself — is there a difference between a Trump presidency and a Biden presidency?” he said. “My sense is, we've got an uphill battle, we've got tough sledding if we continue to work with the Trump administration. I think you're going to see difficult times ahead, certainly no talk of comprehensive immigration reform.

“I think you cannot say Trump will not develop a comprehensive policy and Biden will, but I do think you'll see some additional conversation taking place [if Biden wins].”

Of course, one solution would be to try to create a better pipeline for domestic workers to fill the jobs on the racetrack. Remi Bellocq, executive director of Equine Programs at Bluegrass Community and Technical College, said that progress could be on the horizon on this issue, but it's not going to be an easy one to solve. Bellocq recently collaborated with the Kentucky Chamber of Commerce and KEEP to create a one-year apprenticeship program for horse trainers. He also suggested Godolphin may soon launch an international educational initiative to help those interested in racing find the appropriate pathway to industry jobs in their country.

“On a greater scale, we need to look at what we do nationally,” Bellocq said. “My strong feeling is that until we approach the workforce issue the same way we approach unwanted horses or racing medication, this will continue to be a bigger and bigger challenge. One of the things I've found personally is you have a guest worker immigration issue you have to deal with, but the labor issue, which is a domestic training issue, is just as critical. Until we can incentivize and recruit domestic workers into our industry, pay them what they ought to be paid, find work/life balance, it's going to be a growing problem.

“What I find with a lot of our graduates is they'll go to work for a trainer but very quickly they'll want to move up, become an assistant trainer or a foreman, and we have to very quickly fill those lower skilled jobs again. That's one of the things we continue to try to find solutions for.”

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