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The Week in Review: Takeaways from Justify-Scopolamine Verdict, and Other Thoughts

The long-running battle to decide whether or not Justify (Scat Daddy) should have been disqualified from his win in the 2018 GI Santa Anita Derby seems to have come to a conclusion last week when the team representing Mick Ruis, the owner and trainer of runner-up Bolt d'Oro (Medaglia d'Oro), obtained an order from Los Angeles County Superior Court Judge Mitchell L. Beckloff, directing the California Horse Racing Board Stewards to set aside their Dec. 9, 2020 decision and issue a new ruling disqualifying Justify from the 2018 Santa Anita Derby. With the ruling, Bolt d'Oro has been declared the winner.

At issue was a report in the New York Times that revealed that Justify had tested positive for the substance scopolamine in the Santa Anita Derby. At the time, scopolamine was on a list of substances that, when found in a horses's system, required that the horse be disqualified. According to reports and Ruis's lawyer, the CHRB acted on recommendations from then-executive director Rick Baedeker and equine medical director Dr. Rick Arthur. It was their call that Justify should not be disqualified because the positive test was the result of contamination linked to jimson weed.

Had the New York Times not broken the story some 17 months after the Santa Anita Derby, probably, no one would have ever known that the horse had tested positive. Once the story was brought to light, Ruis went to work and hired attorney Darrell Vienna. Ruis stood to make $400,000, the difference between first and second-place money in the $1-million Santa Anita Derby.

There are, however, a few remaining questions:

1) Is this the final word or may there be still more appeals and fights in the courts?

“There is the potential for appeal,” Vienna said. “My understanding of the judge's order is that the stewards must now issue an order to disqualify Justify. There's the potential that the stewards' ruling can't be appealed. That's kind of confusing because they're under the order of the court. Now, is there going to be an appeal to the judgment of the Superior Court judge. They could appeal to the stewards, the court, one or the other or both. Hopefully, there will be no more appeals and we can just move on.”

2) All of the qualifying points for the Kentucky Derby that Justify picked up came from the Santa Anita Derby. Had the California stewards disqualified him from that race and did so in a timely manner, he would not have been eligible to run in the Kentucky Derby and obviously wouldn't have won the Triple Crown. Do the owners of the horses who finished behind Justify in the Triple Crown races have a case and could, say, Good Magic (Curlin) eventually be declared the winner of the 2018 Derby?

“I don't think so,” Vienna said. “I am aware of a case in California in which there was the appeal of a winner of a race who had subsequently been disqualified from a qualifying race that got him into the race he won. In that case, the California courts held that the horse's eligibility was determined at time of nomination and participation. Under those circumstances, I don't believe there will be any change in the order of the Kentucky Derby or the other Triple Crown races.”

A spokesperson for Churchill Downs told Horseracing Nation that the track has no plans to alter the result of the 2018 Derby.

3) How did this ever become the mess that it did? And why didn't the CHRB follow its own rules?

Vienna maintains that if the California Horse Racing Board followed it own rules the case would have been cut and dried and dealt with promptly. He maintains that the rules were simple and not open to interpretation. He says that any horse that tested positive for a prohibited substance had to be disqualified.

“It's all very simple,” he said. “All they had to do was follow their own rules. There was never any real determination of what happened after the closed session. The closed session lacked finality and lacked all the indices of true decision making. There was no notice to the involved parties. There were no witnesses. All you had was Dr. Rick Arthur making the argument that scopolamine was the result of contamination. The problem is the rules in California at the time called for the disqualification of a horse who was positive for a prohibited substance that was in classes 2 through 3, which scopolamine was. They could have correctly absolved Mr. Baffert or any one else of any responsibility and still under law be required to disqualify the horse. That was the gist of our case. That's all we ever asked for. Our case was based solely on the fact that there was prohibited medication in that horse's system and, as a result of that, the rules called for the horse to be disqualified. I don't think it was very confusing at all.”

4) The process dragged on for some 4 1/2 years and if not for the New York Times report, it may never have been known that Justify tested plosive for the substance. Was the CHRB trying to sweep this under the rug?

“I think that is the case,” Vienna said. “In one executive session, they were provided with one side of the story and they wanted it to go away. There is a process in California law that provides for dismissal of a complaint, but if you look at the history of the statute in California it really applies to charges against a trainer and not the dismissal of a disqualification. That would conflict with another statute in California that says that no horse can benefit if they are carrying a degree of a substance in his system.

“Mick, like all of us is worn out, but he is pleased. This happened in 2018 and no one knew anything about it until 2019. That's a tremendously long journey for something. It could have been settled right away if horse racing board simply decided to follow their owns rules.”

Can Full-Brothers Win the Derby Back to Back?

With his win in the GII Remsen S., Dornoch (Good Magic) is on his way to the GI Kentucky Derby, where will try to pull off something that has never been done. He is a full-bother to GI 2023 Kentucky Derby winner Mage and siblings, either full-brothers or half-brothers, have never teamed up to win the Derby.

To show just how difficult that feat is, take Secretariat. His dam, Somethingroyal, produced four foals who made it to the races after Secretariat. They combined to win three races with total earnings of $38,241.

There have been a couple of dams who produced more than one win in a Triple Crown races. Thanks to research done by Randy Moss of NBC Sports, we know that the dam Leisure produced two Preakness winners in Royal Tourist (1908) and Holiday (1914). Better Than Honour was the dam of 2006 GI Belmont S. winner Jazil (Seeking the Gold) and 2007 winner Rags to Riches (A.P. Indy).

As for Dornoch, a lot will have to go right for him to win the 2024 Derby, but at this point in the game, he's far ahead of where Mage was at the same point. The Remsen was Dornoch's fourth career start and with the Remsen, he has added a graded stakes win to his record. Mage didn't start until Jan. 28 of this 3-year-old year and had not won a stakes race coming into the Kentucky Derby.

Noble Indy Makes It Home

Remember the story of Noble Indy (Take Charge Indy), the winner of the 2018 GII Louisiana Derby? He never ran back to that race and wound up being sent to Puerto Rico, where racing can often lead to the worst possible outcomes. Well, Fred Hart, who owned the dam of Noble Indy, Noble Maz (Storm Boot) was determined to bring him back home. Working together with Caribbean Thoroughbred Aftercare Inc., he has made that happen and Noble Indy landed at Old Friends last week. It's worth noting that Mike Repole and WinStar Farms, who were two of his owners during his prime racing days, foot the costs required to transport the horse back to the U.S. It's good to see owners accept the responsibilities that come with providing a good life for their horses after their careers are over.

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View From The Eighth Pole: Veering Off Into La-La Land

I seriously doubt if trainer Bob Baffert or anyone in his stable knowingly gave scopolamine to Justify prior to his victory in the Grade 1 Santa Anita Derby on April 7, 2018. But the drug showed up above the threshold limit in post-race testing for both the eventual Triple Crown winner and for Hoppertunity, another Baffert runner, who won the G3 Tokyo City Cup the following day at the Arcadia, Calif., track.

Scopolamine has found its way into California hay supplies via jimson weed, so it's not unreasonable to conclude the positive test was a result of environmental contamination. It's also unlikely that the drug's presence at a low yet impermissible level had any impact on performance.

But rules are rules.

According to California Horse Racing Board rule 1859.5 (Disqualification Upon Positive Test Finding), a positive test of drugs in classes 1, 2 or 3 (as defined by the CHRB) “shall require disqualification of the horse from the race in which it participated and forfeiture of any purse … regardless of culpability for the condition of the horse.”

In April 2018, scopolamine was a Class 3 drug under CHRB rules.

CHRB members, meeting in executive session on Aug. 23, 2018, circumvented those rules by voting to not pursue the matter, acceding to the recommendations of the CHRB's equine medical director, Dr. Rick Arthur, and the board's then-executive director, Rick Baedeker.

There is an old expression that “we don't know what we don't know.” In this case, we don't know how many previous times the board took such actions, stopping an alleged medication violation before it reached the stewards for a hearing. We do know the CHRB has prosecuted numerous cases of positive drug tests that any rational person would assume resulted from environmental contamination.

So what was different about this case?

For starters, by the time this came before the CHRB in August 2018, Justify had a) won the Triple Crown, b) had his breeding rights sold for a record $75 million, and c) been retired from racing. He was also trained by a Hall of Famer who had become the “face” of the sport.

Additionally, there was a can of worms labeled “Derby Points” that some might try to open if Justify was disqualified from the Santa Anita Derby, a race that gave the son of Scat Daddy the points needed to qualify for the Kentucky Derby field.

So the CHRB voted behind closed doors to end the investigation and successfully tamped down what could have been an embarrassing situation – until a September 2019 report by Joe Drape in the New York Times exposed what had happened.

There's another old expression that “it's not the crime, it's the coverup.” Scopolamine positives have been called before in California. Trainers were not sanctioned but their horses disqualified. No one likes when that happens, but it's a matter of following the rules. Maybe the rules need to be changed to accommodate environmental contaminations, but until that happens it isn't right for regulators to circumvent the rules they don't like.

The New York Times article hit as California racing was trying to recover from the high-profile equine fatality spike at Santa Anita earlier in the year that thrust the sport in the national spotlight in a most unflattering way. The handling of the Justify case only poured gasoline onto the regulatory fire.

The controversies riled the office of Gov. Gavin Newsom and dominoes started falling at the CHRB. Chuck Winner had already stepped down as board chairman when the Justify story broke. Vice chair Madeline Auerbach resigned from the board when she was passed over to chair the organization. Executive director Baedeker announced that he was retiring and other staff positions changed. New appointees came from outside the industry and without direct investment in racing or conflicts of interest.

Mick Ruis, who owned Santa Anita Derby runner-up Bolt d'Oro, sued the CHRB in January 2020, claiming he was entitled to the $600,000 first-place money from the race. In July, Ruis reached an agreement to settle the lawsuit when the CHRB said it would file a complaint to conduct a purse disqualification hearing on Justify. That hearing, which also included a complaint filed on Hoppertunity's positive test, was conducted on Oct. 29.

Here's where things start veering off into La-La Land.

The three stewards, John Herbuveaux, Kim Sawyer and Ron Church, did their due diligence sifting through the evidence and testimony. They put together a lengthy findings of fact and timeline, including making note that scopolamine changed from a Class 3 drug to Class 4 months after the Santa Anita Derby and Tokyo City Cup were run. The stewards did all the things you would expect them to do when conducting a hearing of this type and then making a determination.

Then they took the ultimate copout. No matter what the evidence was, no matter what the rules stated, they dismissed the complaint “because the CHRB has already ruled on this matter, in executive session, at the Aug. 23, 2018, meeting.”

Are you kidding me?

Unless this was some kind of carefully orchestrated kabuki theater involving CHRB members, staff and stewards to go through the motions of a hearing in order to satisfy the terms of the settlement agreement with Ruis – which seems highly unlikely – the final order by the stewards is mind-boggling.

If the stewards felt as though the matter was dismissed in August 2018, why did they go to the trouble of conducting a hearing? Couldn't they have sought clarification from legal counsel at the CHRB as to whether or not the matter was settled?

The order by the stewards may not be the final word. Attorney Darrell Vienna, representing Ruis, pointed out that California's Business and Professions Code, section 19517, states the CHRB “may overrule any steward's decision other than a decision to disqualify a horse due to a foul or a riding or driving infraction in a race, if a preponderance of the evidence indicates any of the following:

“1) The steward mistakenly interpreted the law.

“2) New evidence of a convincing nature is produced

“3) The best interests of racing and the state may be better served.

“…Furthermore, any decision pertaining to the distribution of purses may be changed only if a claim is made in writing to the board by one of the involved owners or trainers, and a preponderance of the evidence clearly indicates to the board that one or more of the grounds for protest, as outlined in regulations adopted by the board, has been substantiated.”

Within hours of the decision by the stewards to dismiss the complaint, Vienna filed a claim with the board on behalf of Ruis, asking for the CHRB to overrule the stewards.

The ball is back in the CHRB's court, but these are not the same CHRB members who opted to bury this matter in August 2018.

That's my view from the eighth pole.

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Justify, Hoppertunity Connections Seek Court Block of CHRB Scopolamine Re-Hearings

Trainer Bob Baffert, plus the owners and two jockeys who rode the undefeated 2018 Triple Crown winner Justify and the MGISW Hoppertunity, filed a legal petition against the California Horse Racing Board (CHRB) Oct. 13, alleging that the CHRB’s recent decision to reopen hearings on two scopolamine positives from those horses in 2018 amounts to “arbitrary, capricious, and unlawful conduct” that purportedly targets Baffert and his clients unfairly while supposedly damaging the horses’ reputations as stallions.

The petition, filed Tuesday in Los Angeles County Superior Court, seeks a judgment, injunction, and “peremptory writ of mandate commanding Respondent CHRB to dismiss the Complaints filed against Petitioners and cancel all hearings on the matter.”

The petitioners–Baffert, WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC, Starlight Racing, Michael Pegram, Karl Watson, Paul Weitman, Mike Smith, and Flavien Prat–are also going after the CHRB for unspecified monetary damages, attorney fees, and court costs, plus “other, different, or further relief as the Court may deem just and proper,” according to the 26-page court filing.

“This action challenges the CHRB’s groundless decision to reopen a closed matter and conduct a retroactive hearing with an apparently foregone conclusion to disqualify and redistribute winnings from horse races that occurred two and a half years ago. When those races [the [GI] Santa Anita Derby and [GIII] Tokyo City Cup] were run in April 2018 and two horses (Justify and Hoppertunity, respectively) were declared the winners, the CHRB decided the very issue it is seeking to revisit now,” the court documents state.

“The CHRB has no legal or factual basis for reopening its prior final decision,” the filing continues. “As the CHRB knew when it decided this issue in 2018, both Justify and Hoppertunity tested positive for scopolamine just after their respective races in April 2018. But after a thorough investigation and deliberation, consistent with the well-established equine science and its very own governing statute and rules, the CHRB correctly decided that the positive results were due to naturally occurring contamination in the horses’ feed and therefore dismissed the matter. Now, after almost two and a half years, the CHRB has issued complaints and announced it intends to hold a hearing [Oct. 29] to consider retroactively disqualifying these two horses.”

The filing contends that “The CHRB’s attempted proceedings, however, ignore a critical element: the CHRB could not have disqualified either horse in 2018 and cannot do so now because scopolamine is a classified substance that, by law, does not permit disqualification. Further, the CHRB has no authority, or basis, to reopen this closed matter. Rather, the CHRB has admitted it has issued its complaints and is holding a hearing simply to dispose of a civil action brought against it by a race runner-up, and solely as a way to avoid further litigation and expense in that lawsuit.”

According to the Oct. 13 filing, “All racing jurisdictions have rules that govern the sport and the presence of medications and substances in post-race blood and urine tests. California is no different, and the April 2018 tests were taken pursuant to those rules. Specifically, California’s classification system delineates five classes of substances [and] four categories of penalties. [The more egregious and harmful] Class 1-3 substances correspond with penalty categories A and B, while Class 4-5 substances are associated with penalty categories C and D.”

“At the time of the 2018 Santa Anita Derby, just as it is today, the CHRB’s rules designated scopolamine as a Class 4, penalty C substance. Significantly, disqualification is not an authorized penalty for Class 4, penalty C substances. Plainly stated, disqualification premised on the presence of scopolamine was not a permissible option for the CHRB in April 2018 under its own rules [nor is it an option today].”

The filing continues: “There have been numerous incidents of jimson weed contaminating bales of hay, leading to what are called ‘clusters’ of horses testing positive for scopolamine when they unknowingly ingest contaminated feed. Fortunately, there is a proven scientific method for determining whether the presence of scopolamine in a horse is due to intentional administration or is the result of innocent contamination from hay. If the horse has ingested jimsonweed, blood tests of that horse will reveal the presence of atropine. On the other hand, if scopolamine has been intentionally administered, atropine will not be present.”

“Racing commissions routinely use the presence or absence of atropine in the blood as a determinative factor in deciding whether to pursue complaints against an owner or trainer.. Equally important, the amounts of scopolamine found in the blood of Justify and Hoppertunity..were small enough that they would have no pharmacological effect in a horse.”

The filing states that, “There were five other horses who tested positive for scopolamine during this time period. All seven horses were investigated by Dr. Rick Arthur, the CHRB’s Equine Medical Director, and Rick Baedeker, the CHRB’s Executive Director. Arthur and Baedeker determined that the cluster of scopolamine positives at Santa Anita in 2018 was the result of contaminated hay. They found jimson weed in hay that had been delivered to Santa Anita and the blood and urine samples of all the horses revealed the presence of atropine. The investigation and science were conclusive: this was a case of environmental contamination that had no effect whatsoever on all seven horses tested that day, nor the outcome of their respective races. Thus, Arthur and Baedeker jointly recommended to the Board of the CHRB that all seven cases be dismissed.”

“Arthur and Baedeker’s recommendation was presented to the Board of the CHRB, which voted unanimously to dismiss all seven cases. That decision was not only proper, it was the only one the CHRB could make under its own rules..In sum, the cases for the seven horses testing positive for scopolamine in April 2018..were all thoroughly and properly investigated and were

all dismissed. The science was not only overwhelming, it ‘mandated’ such a result.”

The filing further contends that a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d’Oro, is “the only reason the CHRB has decided to reopen the formally closed decisions with respect to Justify,” because the CHRB “agreed to do so as part of a private settlement.”

In his suit, Ruis alleged that the CHRB’s August 2018 vote to dismiss the case against Justify led Ruis to suffer “the loss of purse caused by the CHRB’s failing to disqualify Justify and re-distribute the purse for the positive test result.”

The Oct. 13 filing states that, “the CHRB is only attempting to reopen its 2018 decision regarding Hoppertunity because that horse too was trained by Bob Baffert” and that, “the CHRB agreed to file the [Aug. 25, 2020] complaints against Justify and Hoppertunity solely to avoid further litigation costs associated with its legal defense in the Ruis lawsuit and to placate the race runner-up.”

The Baffert, et al, filing states that as a result of the CHRB’s unlawful conduct, the petitioners have, “suffered harm, including damage caused to Justify’s and Hoppertunity’s reputations, as award-winning Thoroughbred horses.”

But the Oct. 13 court documents do not provide specific details about the exact nature of this alleged harm.

“Unless [the CHRB] is restrained and enjoined from reopening these actions that were previously and rightfully dismissed, Petitioners’ rights will continue to be violated, as they have no plain, speedy, or adequate remedy at law; injunctive relief is the only legal means available to protect their legal rights,” the filing concludes.

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Connections Of Justify, Hoppertunity Seek To Prevent CHRB From Conducting Hearings Into 2018 Scopolamine Positives

The owners of Justify and Hoppertunity, along with trainer Bob Baffert and jockeys Mike Smith and Flavien Prat, have filed filed legal action in Los Angeles Superior Court to prevent the California Horse Racing Board from conducting Oct. 29 disqualification hearings into April 2018 victories by Justify in the Santa Anita Derby and Hoppertunity in the Tokyo City Cup.

The writ of mandate, filed on Oct. 13, claims Aug. 25, 2020, actions by the CHRB to reopen the cases are “void, arbitrary, capricious, unconstitutional, beyond the power of the CHRB, and a prejudicial abuse of discretion.” It alleges the CHRB has violated California Code of Regulations and Government Code as well as the due process rights of the petitioners under the U.S. Constitution.

Justify and Hoppertunity, along with five other unnamed horses, tested positive for scopolamine in 2018. According to the legal filing, the Justify and Hoppertunity cases were investigated by the CHRB's equine medical director, Dr. Rick Arthur, and then-CHRB executive director Rick Baedeker. Both determined the “cluster” of scopolamine positives at Santa Anita in 2018 resulted from hay contaminated with jimson weed, proof of which, the writ of mandate states, is that all horses also indicated the presence of atropine, which it states is a “definitive marker of environmental contamination.”

Arthur and Baedeker recommended to the CHRB members in closed-door executive session that all seven scopolamine cases be dismissed, and the board in place at the time unanimously voted to support that recommendation, according to the action filed Oct. 13. The CHRB has several new members who were not on the regulatory body in 2018.

It wasn't until a September 2019 report in the New York Times that the positive drug tests and decision not to conduct stewards hearings were revealed. Several months later, Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, filed suit against the CHRB demanding the case against Justify be reopened. Ruis stood to gain $400,000 in purse money (the difference between $600,000 for first and $200,000 for second) and other possible gains if Bolt d'Oro were declared winner of the Grade 1 race.

The Santa Anita Derby win by Justify in his stakes debut earned the Scat Daddy colt 100 qualifying points for the Kentucky Derby. He went on to win the Kentucky Derby, Preakness and Belmont Stakes, then retired to stud undefeated in six starts after being sold to Coolmore Stud for a reported $60 million.

As part of a settlement agreement with Ruis, the CHRB said it would file a complaint against the owners of Justify and conduct a purse disqualification hearing. The CHRB also filed a complaint against the owners of Hoppertunity, though not against the other five unnamed horses testing positive for scopolamine.

The owners of Justify at the time were WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC and Starlight Racing. The owners of Hoppertunity were Michael Pegram, Karl Watson and Paul Weitman.

Attorneys for he petitioners contend scopolamine was – at the time of the April 2018 victories by Justify and Hoppertunity – a Class 4 drug with a C penalty classification under Association of Racing Commissioner guidelines. As such, they contend, a positive test for scopolamine would not trigger a disqualification.

They also contend the CHRB did not act in a timely manner in reopening the cases.

The legal action accuses the CHRB of violating its own rules and engaging in “unfair, arbitrary and capricious conduct. Petitioners have been intentionally treated differently from others similarly situated and there is no rational basis for he difference in treatment.”

As a result of the CHRB's actions, the writ of mandate alleges, the connections of Justify and Hoppertunity “have suffered damages, including in the form of reputational harm.”

The petitioners are seeking a writ of mandate from the court ordering the CHRB to dismiss the complaints and cancel all hearings related to Justify and Hoppertunity's positive tests. They are also seeking unspecified damages, along with attorneys' fees and court costs.

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