scopolamine | Horse Racing Free Tips

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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No Change In 2018 Santa Anita Derby Results As Stewards Dismiss Complaint In Justify/Hoppertunity Case

Justify's win in the 2018 Santa Anita Derby, and that of stablemate Hoppertunity in the 2018 Tokyo City Cup, will stand. The Santa Anita board of stewards voted Wednesday to dismiss a California Horse Racing Board (CHRB) complaint into the results of both races without any change in the final order of finish. The Board brought the complaint as part of a settlement agreement in a civil suit from Ruis Racing, which owned Bolt d'Oro, runner-up to Bob Baffert-trained Justify in the Santa Anita Derby.

The CHRB faced public outcry when a New York Times report revealed that post-race samples from both horses contained scopolamine, but that the board voted in a secretive, closed-door meeting not to pursue action against trainer Bob Baffert. CHRB equine medical director Dr. Rick Arthur advised the board that several other horses also showed levels of scopolamine in their systems around the same time, which led him to believe the tests were the result of environmental contamination. Scopolamine can sometimes be found as a result of exposure to jimson weed, which grows in California and may sometimes end up in hay or bedding.

“Even if this panel were to disagree with the CHRB's decision to dismiss these matters or the way the CHRB handled the situation it cannot be argued that the CHRB lacked the authority to do so,” read the stewards' decision. “The law specifically allows such actions to take place and the CHRB followed the law.”

Stewards heard evidence from the CHRB and connections of both horses on Oct. 29. The horses' connections went to court in an attempt to block a stewards' hearing on the 2020 CHRB complaint but were unsuccessful.

The complaint brought this year after the Ruis civil suit focused only on whether Justify and Hoppertunity should be disqualified. It was not designed to impose sanctions on Baffert or any other individual.

In a written explanation, the stewards said their decision came down to the timing of changes to the classification of scopolamine. At the time of the races, scopolamine was a Class 3 drug by California rule, which would have required automatic disqualification of a horse regardless of the reason it was present in a post-race sample. However, by the time of the closed meeting for the board to discuss the Justify finding, the Association of Racing Commissioners International (ARCI) had changed the classification of the substance to a Class 4. The CHRB voted on in a regular, open meeting held on Aug. 23, 2018 to adopt an amendment to its drug rules which put them in line with ARCI guidelines — including, among other things, changing scopolamine from a Class 3 to a Class 4. The presence of Class 4 or 5 substances in horses post-race does not include automatic disqualification as a penalty.

It was in the closed-door executive session portion of that same Aug. 23 meeting that the board heard information about the scopolamine positives, including that of Justify, and voted to dismiss the whole thing without filing a complaint or referring the matter to the stewards for a hearing. CHRB rules at the time permitted the board to handle the case this way, with no public disclosure.

Wednesday's stewards' decision acknowledges that Arthur warned the board during that executive session “there might be a perceived lack of transparency should the CHRB fail to go public with the decision and that it would probably not remain a secret.”

The decision went on to question how the outcome may have been different had it gone through the normal channels for a post-race finding and done so more quickly.

“It is the stewards' opinion that had this board of stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified.”

See the full stewards' decision here.

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Baffert’s Lawyer: Drape’s `False’ Story `Debunked’

Bob Baffert’s attorney issued a statement Tuesday saying that New York Times reporter Joe Drape’s reporting in 2019 on Justify’s scopolamine positive was a “false story and narrative” which “were definitively debunked” in last week’s California Horse Racing Board hearing on the matter.

The statement from attorney W. Craig Robertson III reads, in full:

“On September 11, 2019, Joe Drape of the New York Times published an article concerning trainer Bob Baffert and Triple Crown-winning horse Justify. The article strongly and inaccurately suggested that Mr. Baffert had intentionally doped Justify with scopolamine in the 2018 Santa Anita Derby, and falsely stated that scopolamine was a performance-enhancing substance. Mr. Drape similarly implied that the California Horse Racing Board, which had investigated the facts surrounding Justify and determined that there had been no wrongdoing, was corrupt and covering up for Mr. Baffert’s alleged misconduct.

“Last week, Mr. Drape’s false story and narrative were definitively debunked. In a public hearing on the Justify case, the California Horse Racing Board, which now consists of members that are entirely different from the allegedly `corrupt’ ones in place in 2018, stipulated that the presence of scopolamine in Justify: (1) was the result of environmental contamination, specifically that Justify was inadvertently exposed to hay containing a naturally growing plant called jimsonweed, which contains scopolamine; and (2) there was no performance-enhancing effect on Justify in the Santa Anita Derby. Thus, it has now been conclusively and legally established that the entire premise of the (2019) New York Times story on Justify was false.

“Mr. Drape’s coverage of Mr. Baffert continues to be inaccurate in other significant respects. For example, recently he has repeatedly accused Mr. Baffert of medication violations in Arkansas and Kentucky involving “banned” substances when, in fact, each of those cases involve lawful, therapeutic medications. These representations are similarly false and must be corrected.”

On October 22, Drape wrote that Gamine had tested positive for a “banned substance” in the Times. Robertson responded at the time, “Betamethasone is a legal, commonly used anti-inflammatory medication. It is not a `banned substance.’ ”

Robertson’s Tuesday email to the media said that Baffert would be issuing his own statement Wednesday.

In August, the CHRB announced that the win by Justify in the 2018 running of the GI Santa Anita Derby would come under official administrative scrutiny by the organization, but that Baffert, the trainer of the eventual undefeated Triple Crown winner, would not have a CHRB complaint lodged against him “due to substantial evidence that the scopolamine resulted from environmental contamination from jimson weed.”

The CHRB has yet to issue a ruling following last week’s scopolamine hearing.

A now-controversial 2018 commission vote to exonerate Justify and Baffert was not publicly disclosed, and took place privately after a detailed investigation that substantiated the environmental contamination by jimsonweed. In roughly the same timeframe in 2018, the CHRB received positive post-race tests for scopolamine on five other horses from other barns, and the CHRB eventually treated them all as unintentional jimsonweed contaminations from ingesting tainted hay.

“This case was correctly decided by the CHRB in 2018. It was a final and binding decision. And nothing has changed since then, and you all should simply affirm that decision so that we can put this matter to bed once and for all,” said Robertson at last week’s hearing. “When that investigation was complete, there were two things that were clear, undisputed and undeniable. Number one, that this was a case of innocent environmental contamination from hay and it was not a case of any intentional administration of any drug or medication. And number two, that the trace levels of scopolamine…had no effect on the performance of these horses and no effect on the races.”

Drape revealed the scopolamine positive in a New York Times article September 11, 2019 in which he wrote, “Justify should not have run in the Derby, if the sport’s rules were followed” and suggested that the investigation had not been detailed at all.

“It decided, with little evidence,” he wrote, “that the positive test could have been a result of Justify’s eating contaminated food. The board voted unanimously to dismiss the case. In October, it changed the penalty for a scopolamine violation to the lesser penalty of a fine and possible suspension.”

Testimony at last Thursday’s hearing indicated that change in classification of scopolamine was already in the works long before Justify’s positive.

In the story on the hearing, the TDN’s T.D. Thornton wrote, “The CHRB, by its own regulation, follows the Association of Racing Commissioners International (ARCI) Uniform Classification Guidelines for Foreign Substances and Recommended Penalties when establishing model rules for drugs. The ARCI once classified scopolamine as a Class 3 drug (lower-number classifications are more severe). But in December 2016, the ARCI reclassified it to a lesser Class 4 offense.

“Arthur testified that the CHRB fully intended to follow the ARCI’s model rule that reclassified scopolamine (and other drugs that also changed classes). But since California’s Office of Administrative Law doesn’t allow the CHRB to change rules by automatically referencing another authority’s code, the racing agency has to go through a drawn-out process to make even minute changes such as drug reclassifications. So because of this bureaucratic backlog, scopolamine in 2018 was still technically Class 3 in California, even though Arthur and the CHRB considered it to match the ARCI’s newer Class 4 downgrade.

“Arthur explained how as the equine medical director, he has regulatory leeway to take into consideration mitigating circumstances, and that’s what he did when recommending no initial penalties for the scopolamine positives.”

“It is inherently unfair to hold somebody to a classification that is outdated because of regulatory inefficiency,” Arthur said at the hearing.

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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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