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New NYRA Rule Forces 10-Year-Old Backsideofthemoon Off Grounds; Trainer To Continue Racing Gelding At Parx

A regulation implemented by the New York Racing Association last April has required 10-year-old Backsideofthemoon to be moved off the grounds, reports the Daily Racing Form. The rule forbids horses age 10 and old from training or racing at Saratoga, Belmont, or Aqueduct.

Trainer Patrick Reynolds believes the gelding is still sound and fit enough to race, so his career will continue at Parx Racing in Bensalem, Pa. Backsideofthemoon was entered in a race on Monday, Jan. 24, but track conditions forced the cancellation of that card.

Instead, Backsideofthemoon worked at Belmont Park on Jan. 26 and was shipped to Parx late in the morning. He will be trained by Michael Aro at Parx, a trainer with whom Reynolds has a working relationship.

The Parx racing office plans to bring the race back next week.

Backsideofthemoon is a multiple stakes-winning, graded stakes-placed son of Malibu Moon. His record stands at 8-10-10 from 57 starts with earnings of $816,016.

Backsideofthemoon takes his final stroll around Belmont Park after his morning workout, half mile in 51 3/5, Despite being sounder than most horses he has been denied the privilege of stabling at NY tracks due to age discrimination. He is 10. Heartbreaking! pic.twitter.com/Pn0WzGLlM7

— Patrick L. Reynolds (@_joemana) January 26, 2022

Baffert/NYRA Hearing, Day 2: Social License To Operate, Ethics Of Therapeutic Drugs Debated

The hearing to determine whether the New York Racing Association will be permitted to exclude Hall of Famer trainer Bob Baffert continued through its second day of testimony Jan. 25 with testimony from witnesses on behalf of the racing association.

Tuesday's proceedings were taken up with the remainder of cross-examination of Rick Goodell, an attorney who has represented the New York State Gaming Commission, as well as testimony from Dr. Pierre-Louis Toutain, veterinary pharmacologist, Dr. Camie Heleski, senior lecturer for the University of Kentucky, and Jeffrey Cannizzo, senior director of government affairs for NYRA.

Here are a few of the highlights:

Justice O. Peter Sherwood, who is serving as hearing officer for the proceedings, grew testy at times Tuesday with Baffert's legal team. Cross examination of Goodell resulted in Baffert attorney Clark Brewster asking repeatedly about New York's threshold levels and whether a test under those levels would result in a positive (in New York it might, if the commission has other evidence a medication was given outside of the permitted timeframe). Sherwood also shut down one of Brewster's lines of questioning of Cannizzo, which was focused on the lack of conflict of interest rules for NYRA board members. Brewster seemed focused on the fact that the New York State Gaming Commission does not permit board members or employees to have active ownership interests in racing, while many NYRA board members do. Sherwood reminded Brewster that in his view, previous rulings from U.S. District Judge Carol Bagley Amon have established that NYRA has the legal authority, based on precedence from a 1982 case before the New York State Supreme Court, to rule a trainer off, and that this point is not considered up for debate.

“What I'm saying now, I've told you before,” Sherwood said to Brewster. “I've cited the case Judge Amon cited. I've cited it in written opinions. I've told you that at this hearing but for some reason or another, you're ignoring it.”

Brewster repeatedly thanked Sherwood for putting his feelings about that legal authority into the record.

Toutain was asked to testify to the potential welfare and performance implications of the drugs for which Baffert horses have tested positive since 2019. Toutain resides in France, and is a distance professor for the University of London's Royal Veterinary College.Toutain was asked about phenylbutazone, and whether it's appropriate to use in the course of training horses.

“No,” said Toutain. “The appropriate use is to suppress the pain for horses and not get the horse to compete with an underlying condition. When you treat horses with phenylbutazone, normally you have to stop on the horse.”

Toutain also asserted that the use of bute could increase the risk of injury “because you are masking underlying conditions that can be severe. The purpose of phenylbutazone is to help the horse, not to mask any injuries.”

Toutain agreed that bute, lidocaine, and betamethasone would not enhance a healthy horse's maximum athletic effort, but were instead potentially problematic because of what they could be hiding.

As to corticosteroids like betamethasone, Toutain cited research stating that horses who were treated with corticosteroids had four times greater risk of catastrophic injury, although it was not clear when those administrations occurred in relationship to the injuries or what doses were used. Toutain also pointed out that a finding in blood of a corticosteroid at a low level does not presuppose the origin of the corticosteroid. A low systemic level of the drug could mean it was given intravenously some time before, or it could have emerged as a result of an intra-articular administration. In cases when a corticosteroid is injected into a joint, low levels of the drug will eventually be found circulating in the body but the concentration will always be much higher in the joint that took the injection.

“Just because you detect nothing in the blood does not mean there is nothing in the joint,” he said.

Toutain admitted his field of expertise was pharmacology and not regulation. Although he has been consulted in the construction of regulation for international racing, that is not his primary occupation.
As to lidocaine, Toutain said there is a relatively low threshold for its use because the drug spikes in the blood quickly and dissipates quickly. It likely has maximum effect somewhere in the first hour of an administration, but Toutain said it's often regulated in such a way to prevent administration within 24 hours of a race.
Heleski testified primarily about the social license to operate, a concept that applies to many industries beyond animal sports. Heleski explained that the phrase refers to social or public acceptance which grants permission for an organization to conduct a given activity. This concept has been used in the past to apply to the mining and forestry industries, and has been applied in recent years to equine activities, including horse racing.

Heleski said that in order to tolerate a given equine sport, the public needs to feel the animals are treated appropriately, and that there is accountability and transparency present in the sport. Attorneys for NYRA asked Heleski about the many headlines in mainstream news media which have dogged Baffert in recent years, as well as the Saturday Night Live skit which poked fun at his interview tour after he announced the betamethasone overage for Medina Spirit. These things, she said, could impact the sport's social license to operate.

“Many people will talk about the issue of drugs and medications and they have a big concern,” she said. “They don't necessarily go into the nuance of levels. Most of the time, they feel like if there was a drug or medication noted, it's bad. They put it all under the umbrella of doping.

“If someone is so well known in a certain sport or industry that even the casual racing fan can identify them, they're more likely to make an impact when some news takes place.”

Baffert's attorneys asked Heleski whether it was Baffert's fault that the general public does not grasp the difference between various therapeutic medications. Attorney W. Craig Robertson also questioned the validity of the concept of the social license to operate, since he said it is not an actual, physical license given out by a central authority and seems an amorphous concept.

Heleski pointed to several key problematic areas in racing which she believes detract from the sport's social license to operate — equine deaths, whip use, medication problems, and aftercare. On cross examination, NYRA attorneys pointed out to Heleski that Baffert has had more than 70 horses die in his care since launching his training career.

Following the day's proceedings, a representative of Trident DMG distributed the following statement to media on behalf of Baffert's legal team. According to its website, Trident is a strategic communications, public relations, and crisis management firm. The statement is attributed to Brewster.

“By jumping to false conclusions and ignoring the facts, NYRA is fueling a bandwagon smear campaign against Mr. Baffert for its own private, competitive purposes – an effort that threatens the integrity of the entire industry. Here are five undisputed facts that support why Mr. Baffert's suspension by NYRA should be overturned immediately:

The New York Gaming Commission is the exclusive and only regulatory agency for horse racing oversight in the State of New York. NYRA has no seat at the table for regulating racing.

NYRA's Board is conflicted, comprised of horse owners that directly compete with Mr. Baffert. No wonder they want him banned from New York racing – his horses beat theirs.

The basis for NYRA's attack is to import rulings from other racing venues about the permissible use of medications that are for therapeutic purposes. Not one racing regulatory agency found grounds to suspend or take action against Mr. Baffert for any of the therapeutic medication threshold overages.

Of the top 14 thoroughbred horse trainers in New York State, nearly all have had more medical violations than Mr. Baffert has been accused of and not one has been suspended by NYRA, nor has NYRA even attempted to suspend them. In fact, not one of the allegations against Mr. Baffert relates to a single New York racetrack rule violation, and Mr. Baffert has never had a reported medication positive in the state in his 25-plus years of racing.”

The hearing continues at 9:30 a.m. on Jan. 26. Read our reporting from Day 1 here.

The post Baffert/NYRA Hearing, Day 2: Social License To Operate, Ethics Of Therapeutic Drugs Debated appeared first on Horse Racing News | Paulick Report.

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‘A Wrecking Ball … To Integrity’: Lawyers For Baffert, NYRA Trade Barbs On Day One Of Exclusion Hearing

There's going to be a lot to unpack in this week's hearing of the New York Racing Association versus trainer Bob Baffert.

In opening statements made by attorneys for the respective sides on Jan. 24, representatives of each made clear that they see a key two-year period in Baffert's career very differently.

Henry M. Greenberg, shareholder in Greenberg Traurig and attorney for NYRA, laid out the organization's frustration with Baffert's recent history of therapeutic drug violations and also his handling of those violations in the national and trade media, highlighting what NYRA sees as a refusal to consistently accept responsibility for those violations.

“What this case is about and what the evidence will show is how one man — this man, the respondent — took a wrecking ball over a one-year period to the integrity of the sport that was so good to him for so many years,” said Greenberg. “He sullied and soiled, in one year, 365 days, three of the great races in America — the Arkansas Derby, the Kentucky Oaks, and the Kentucky Derby. Throughout that period, not once did he take responsibility for his actions, did he express contrition. Time and again, again and again, six times, he would blame others to try to avoid responsibility for his own actions.

“In 2020 and 2021, the only Triple Crown he's responsible for is destroying three Grade 1 races.”

On the first day of the hearing, Greenberg tracked the changes in Baffert's responses to Medina Spirit's post-Kentucky Derby betamethasone overage in the national media — from the trainer denying the horse received the drug at all in a press conference he called after learning of the overage to his insistence days later that the overage was due to the administration of a topical ointment — as well as his representations that other overages, such as Gamine and Charlatan's lidocaine tests in Arkansas and Merneith's dextrorphan test in California, were due to environmental contamination.

“The evidence will show NYRA had an obligation to act,” Greenberg said. “It had an obligation to protect the sport of Thoroughbred racing and its integrity … Racetrack operators like NYRA and Churchill Downs have a social license, you will hear, with the public.”

Attorneys for Baffert say NYRA's objections are overblown and beyond the organization's authority.

“The facts in these case are going to be nothing like what you just heard,” said W. Craig Robertson in his opening statement, following Greenberg's. “Bob Baffert is one of the most respected individuals in racing not just now, but in all time. NYRA, which they've just started, is going to throw at you innuendo, speculation and downright distortions. What I'm going to focus on are facts.”

Robertson pointed out that the drug positives at the heart of NYRA's case — six picked up in a span of 14 months from July 2019 to September 2020 — are for therapeutic substances whose thresholds are measured in small concentrations. Further, he said, racetracks should not be allowed to take regulatory action against a licensee.

“The actions being taken by NYRA are unprecedented,” he said. “You're the only thing standing between NYRA and [this suspension] happening.

“I'm not asking that you treat him any better than any other trainer. I'm just asking that you don't treat him any worse.”

Robertson also chastised NYRA for taking action against Baffert before a ruling has been made in the Kentucky Derby betamethasone case. According to Baffert's attorneys, no hearing has yet taken place in that case before the Kentucky stewards. The Kentucky Horse Racing Commission would not confirm to the Paulick Report last week whether one had been scheduled yet.

Only one witness was called to the stand in the first day of testimony — Rick Goodell, a regulatory attorney who has represented the New York State Gaming Commission in many drug and other rule violations cases over the past 20 years. Part of Goodell's duties in New York were to recommend potential penalties for various rule violations, including drug violations. Greenberg asked Goodell to run through the list of Baffert's drug positives and respective penalties in the context of his experience working for the state of New York. In the case of a lidocaine positives, which comprised two of the six violations at question, Goodell said he would have expected to pursue a 45-day suspension in each case, but offer the trainer 30 for their first lidocaine violation if they agreed not to pursue an appeal. In the case of phenylbutazone, which accounted for two more of the six violations, he expected to pursue 14 but offer a trainer seven days' suspension if they agreed not to appeal.

All told, Goodell said a trainer with Baffert's record in New York would have racked up 240 days' suspension if he did not decline to appeal cases. Baffert did not serve days for any of the six.

(Those six overages were a phenylbutazone from a July 27, 2019 race at Del Mar; a phenylbutazone from an Aug. 3, 2019 race at Del Mar; two overages of 3-hydroxylidocaine at Oaklawn May 2, 2020; one dextrorphan in a July 25, 2020 race at Del Mar, and a betamethasone in the 2020 Kentucky Oaks in September. The Medina Spirit test is not counted towards the six since it hasn't yet been adjudicated.)

Goodell also said that by his reading of the current draft of proposed regulations of the Horseracing Integrity and Safety Authority (HISA), the same record in the same period of time could result in a suspension as long as 18 months.

Of course, as Baffert attorney Clark Brewster pointed out, none of these violations took place in New York under current New York regulations, nor did they take place under HISA regulations, which are still in development. It remains somewhat unclear what could have been called a positive in New York because Goodell said New York keeps a document with drug testing thresholds but that Dr. George Maylin, director of the drug testing lab for New York state, maintains the right to call a positive if he believes a sample indicates a drug was given outside the regulated timeframe, even if it's under the threshold.

Brewster and Robertson also suggested that NYRA's actions here could be motivated by key New York racing personalities who may be “jealous” of Baffert and his success, or tired of losing to him. Goodell maintained he was not qualified to speculate on that.

Goodell's testimony continues on Jan. 25. The hearing is projected to take three to five days total.

The post ‘A Wrecking Ball … To Integrity’: Lawyers For Baffert, NYRA Trade Barbs On Day One Of Exclusion Hearing appeared first on Horse Racing News | Paulick Report.

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NYRA’s Pre-Suspension Hearing Against Bob Baffert To Begin Monday; Judge Dismisses Trainer’s Lawsuit

Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York officially dismissed a lawsuit brought by Hall of Fame trainer Bob Baffert on Friday, reports the Daily Racing Form, allowing the New York Racing Association's pre-suspension hearing to begin as scheduled on Monday, Jan. 24.

Amon's ruling indicated that the pre-suspension hearing fulfills Baffert's right to due process.

“NYRA is gratified by Judge Amon's decision to dismiss Mr. Baffert's suit in its entirety,” Patrick McKenna, a spokesman for NYRA, told DRF. “As we have said throughout this process, NYRA's focus in this matter is protecting the integrity of the sport of Thoroughbred racing in New York.”

Amon's ruling also states that Baffert will be able to pursue a separate judicial review of a suspension after the hearing is completed.

“Whether NYRA is a biased agency and whether suspension is a 'fait accompli' will certainly be clearer after the hearing has run its course and NYRA has decided to suspend Baffert,” Amon wrote.

NYRA had notified Baffert ahead of the Belmont Stakes that it was suspending his ability to enter horses in races or have stall space at its racetracks due to his recent history of medication violations (five over a one-year period), the conflicting statements he provided to media around the Medina Spirit scandal, and Churchill Downs' suspension of the trainer.

Amon determined that NYRA's suspension of Baffert should not have taken place without some sort of hearing allowing him to address the organization's accusations against him. Although NYRA was asserting its private property rights in the case, Amon said the organization is closely entwined enough with the state that its suspension of Baffert constituted a state action, thereby requiring due process.

NYRA issued a statement of charges against Baffert and fellow trainer Marcus Vitali on Sept. 10.

The upcoming hearing process, laid out by NYRA in its official statement on Sept. 10, is not expected to be brief. O. Peter Sherwood, the retired New York State Supreme Court justice, will serve as a NYRA-appointed hearing officer. The hearing may last several days, and Sherwood is not required to issue his post-hearing report with recommendations within a specific period of time.

Once that report has been issued, a panel will review it and issue a final decision within 10 days