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CDI Argues Court Win By Baffert Would Harm Other Derby Qualifiers

The gaming corporation that controls the GI Kentucky Derby fired the latest legal salvo in trainer Bob Baffert's ongoing attempt to reverse the second year of a two-year ban the company imposed in 2021 because of a spate of drug positives in Grade I races, urging a federal judge not to grant an injunction that would lift the ban in time for the May 6 Derby.

“Baffert refuses to accept responsibility for his wrongful actions…” Churchill Downs Inc. (CDI) wrote in a brief opposing Baffert's motion for a preliminary injunction that they filed late Tuesday in United States District Court (Western District of Kentucky). “Now, as the two-year anniversary of his CDI suspension approaches, Baffert has renewed his motion in a brazen attempt to litigate his way into the 2023 Kentucky Derby.

“This belated, tactical, and meritless motion should meet the same fate as his prior unsuccessful efforts to challenge his suspension,” the CDI filing continued.

CDI also argued that an injunction would injure the connections of other Derby qualifying points earners who would “lose their fairly-earned berths in the Derby to make room for Baffert,” the filing stated.

“An injunction would force CDI to reallocate [Derby qualifying] points, retroactively depriving those owners and trainers of Derby and [GI Kentucky] Oaks berths their horses have earned under CDI's existing rules,” the filing continued. “The harm to these innocent third parties, who have played by the rules, is exacerbated by Baffert's long delay in filing his motion.”

The Hall-of-Fame conditioner's trainees have crossed the finish wire first a record seven times in the Derby.

But it was that seventh Derby winner-Medina Spirit in 2021-who triggered Baffert's banishment when the colt tested positive for betamethasone, a Class C drug, in a post-Derby test.

Citing that positive finding and other drug overages in Grade I races around the same time, CDI told Baffert in June 2021 that he would be ineligible to race at its six U.S. tracks until after the 2023 Derby, and that any horse that raced under his training license would not be eligible to accrue qualifying points to get into the 2022 or 2023 Derbies.

Baffert had initially sued CDI on Feb. 28, 2022, in an attempt to get an injunction enjoining CDI from suspending him from its tracks and races. His complaint alleged civil rights violations related to what Baffert said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

Separately, Baffert fought unsuccessfully in the courts to try and stave off a 90-day suspension for Medina Spirit's drug overage that had been imposed upon him in February 2022 by the Kentucky Horse Racing Commission (KHRC).

Those legal efforts failed, and Baffert eventually had to start serving that KHRC suspension about a month before the 2022 Derby. He transferred his entire California-based stable to the care of other trainers, and his legal team at that time withdrew the motion for an injunction. (Even though his KHRC suspension has already been served, Baffert is appealing that ruling in an effort to expunge it from his record.)

Two horses Baffert trained through March 2022-the $1.7-million FTFMAR buy Taiba (Gun Runner) and 'TDN Rising Star' Messier (Empire Maker)-ran in the 2022 Derby under trainer Tim Yakteen's license, finishing 12th and 15th, respectively.

Baffert renewed his court quest to run in the 2023 Derby on Dec. 15, 2022.

In that filing, his legal team wrote that “Granting an injunction would work no hardship on [CDI]. Numerous rules and regulations already safeguard CDI's interests in health, integrity, safety, and fairness. Baffert has already served his time for the mere allegation of a violation which has yet to be fully adjudicated, and there is no doubt among industry observers and even casual spectators that Baffert suffered consequences for the mere perception of wrongdoing.”

CDI's Jan. 17 response took umbrage with that position.

“The drugging of Medina Spirit happened just months after the Baffert-trained Gamine was disqualified for testing positive for the same drug after finishing third in the 2020 Kentucky Oaks, also held at Churchill Downs Racetrack,” CDI's filing stated. “Baffert's unprecedented back-to-back drug violations cast a pall over CDI's two marquee horse racing events and triggered a national debate over the integrity of the sport.”

By banning Baffert, CDI claimed that it “acted well within its rights to protect the health and safety of its human and equine athletes and to protect its own brand and public confidence in the sport of horse racing… While Baffert has had no shortage of public relations gambits, he has failed to, and cannot, demonstrate his entitlement to a preliminary injunction.”

CDI's filing continued: “Baffert has not shown he will suffer irreparable harm absent an injunction. His 19-month delay in seeking injunctive relief negates any claim of irreparable harm. His primary alleged harm-the loss of purse money-is speculative and would be fully compensable by money damages.

“Nor will he lose his client base or suffer a loss of goodwill absent relief. Since his CDI suspension began, Baffert has run horses in hundreds of races around the world and earned millions of dollars in purse money. And none of his client-affiants say they will transfer horses from his care absent an injunction.”

CDI also alleged that Baffert's due process claim “fails as a matter of law because CDI is a private corporation, the individual defendants are not government officials, and no one violated Baffert's rights.”

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Taking Stock: The Good, The Bad and The Ugly of 2022

Sergio Leone's 1966 masterpiece, “The Good, the Bad, and the Ugly,” was the last and best of a trilogy of Leone spaghetti westerns that upended the traditional genre.

Before Leone and other Italian directors like Sergio Corbucci set about redefining the Old West in Europe, traditional domestic westerns featured clean-cut leads like John Wayne, Alan Ladd, Gregory Peck, Gary Cooper, and Jimmy Stewart in films by directors like John Ford and Howard Hawks that clearly delineated the good from the bad and ugly. Not so Leone, who made the genre surreal and messy, and for him the good wasn't as easily distinguishable from the bad and ugly.

Clint Eastwood, Leone's star, was an anti-hero gunslinger with five-day stubble on a perpetually squinting face, a cigarillo between his lips, and a signature poncho draped over his tall frame.

When he flipped the poncho over his left shoulder, he was ready to draw the Colt Navy holstered on his thigh, and when he did, any gunfight was over in the blink of an eye. He was faster than fast–and unbelievably so.

Racing in 2022 was messy and surreal and was a Sergio Leone film in my mind, not a John Ford movie with clear-cut heroes and bad guys. Flightline was the star, playing the Eastwood role. No one was faster.

Here's the year's Good, Bad, and Ugly, boiled down in three acts.

The Good
The Good was Flightline (Tapit), wasn't it? He was good, but not so in the traditional sense for some, because he didn't race often like their racing heroes from the past. His detractors have grumbled, too, that he's not competing in 2023 because his connections are cashing out on his massive stud value. Some conspiracy theorists on social media have gone so far as to insinuate the $4.6 million share purchased by an undisclosed buyer at auction at Keeneland was engineered by the colt's ownership group to inflate his value. In reality, the share was bought fair and square by Travis Boersma, the billionaire co-founder of Dutch Bros. Coffee, with Coolmore the underbidder. In fact, Boersma has since purchased another share in Flightline.

As for how good Flightline was, the results of the recent Gl Malibu and Gll San Antonio add to the tale: Taiba (Gun Runner), beaten 8 3/4 lengths in third by Flightline in the Gl Breeders' Cup Classic, won the former by 4 1/4 lengths; and Country Grammer (Tonalist), second by 19 1/4 lengths to Flightline in the Gl Pacific Classic, won the latter by 4 1/2 lengths. At the time, the Pacific Classic impacted me in a way I haven't felt in a long time, and when Lane's End asked me to write the entry for Flightline for its annual stallion brochure, I wrote of that race in particular and said, in part:

He was a hot Santa Ana wind blowing in from the San Diego mountains that day. He not only fried the competition in the Pacific Classic but also the ability to think straight in the immediate aftermath. It was difficult to coherently put into words what was seen and felt as Flightline crossed the line. There was something unsettling about it, something that asked, “Is this real?”

Joan Didion, that great American writer from California, once said this about the Santa Ana winds: “The Pacific turned ominously glossy during a Santa Ana period, and one woke in the night troubled not only by the peacocks screaming in the olive trees but by the eerie absence of surf. The heat was surreal. The sky had a yellow cast, the kind of light sometimes called 'earthquake weather.'”

Didion's words capture the otherworldly essence and collective disbelief of what was witnessed at Del Mar. It had been, after all, only Flightline's fifth race. Previously, he'd dominated a field of Grade l winners by six lengths in the one-mile Gl Metropolitan H. at Belmont. His only other stakes outing before the Met Mile came in the seven-furlong Gl Malibu S. at Santa Anita, which he won by 11 1/2 lengths.

In the days following the Pacific Classic, as the magnitude of accomplishment settled in, journalists waxed lyrically about Flightline's performance, but the most telling verdicts came from unsentimental makers of figures and ratings: 126 from Beyer, the fastest in almost 20 years and the second-best ever; -8 1/2 from Thoro-Graph, the best in its history; -2 from Ragozin,
an indicator of highly elite class; and a ranking of 143 from the internationally respected Timeform, which places Flightline tops among American horses of all time and within range of the publication's highest-ever weighted horse, Frankel, at 147.

Flightline was clearly special.

The Bad
The handling of HISA was bad–twice over. There's no way to sugarcoat this. The bill was first passed without industry consensus when Sen. Mitch McConnell, Republican and then Majority Leader in the senate, tacked it on to the year-end spending bill in 2020, and after a part of it was found unconstitutional last year, Sen. McConnell, now Minority Leader, once again attached an amendment to it to the spending bill last month with corrective language that's supposed to address the issue the Fifth Circuit Court of Appeals found objectionable, which is that government power was delegated to a private entity without adequate government supervision.

Sen. McConnell, in this role, plays the part actor Lee Van Cleef did in the Leone film, the hired gun Angel Eyes. Part of the entry for Angel Eyes in Wikipedia reads: “A ruthless… mercenary… always finishes a job for which he is paid.” Who hired–lobbied is the polite word–Sen. McConnell? Pro HISA advocates, including The Jockey Club, a mostly Republican organization. And why is this ironic and even surreal? Because many of the constitutional issues being litigated in courts around HISA are anti-Republican stances about states' rights and regulatory measures. And many of the federal justices ruling on these issues were named to the bench by Republican Presidents, whose appointments were supported by Sen. McConnell and most Republicans.

What happens if another conservative judge rules against HISA in one of several suits on the table at the moment? You already know: Sen. McConnell will be back to tack another amendment to the spending bill a year from now. He's got plenty of Democrats in the senate who will support him on this, but his own party is highly critical of him for putting forth measures that are anathema to conservatives.

Sen. McConnell and his posse should have had this right from the beginning, with industry consensus and a clear understanding that any challenges to HISA would come from McConnell's own party and be adjudicated by justices put in place by them.

The Ugly
Who will be the champion 3-year-old colt of 2022? Will it be Epicenter (Not This Time), who won one Grade l race last year, or will it be Taiba, the winner of three? I tweeted this recently from the WTC company account, @Sirewatch:

“In the matchup for Eclipse 3yo between Epicenter vs. Taiba, the winner is Ron Winchell. He owns Epicenter and is a major shareholder in Gun Runner, the sire of Taiba.”

Winchell is a leading man from a John Ford film, a John Wayne type of winner.

Taiba is owned by Amr Zedan, a Saudi businessman, and trained by Hall of Famer Bob Baffert, both of whom are Sergio Leone characters, perhaps a composite in this case of the Eli Wallach role of Tuco, a wanted Mexican bandit in “The Good, the Bad, and the Ugly.”

Things certainly got ugly for Zedan and Baffert after their Medina Spirit (Protonico) tested positive for betamethasone after the 2021 Gl Kentucky Derby, and events have snowballed from there, including the Churchill Downs ban of Baffert and the subsequent lawsuits filed by Zedan and Baffert in response. All of this translated to negative publicity and quite likely cost Medina Spirit an Eclipse Award.

The champion 3-year-old colt of 2021 was Godolphin's Essential Quality, who won two Grade l races, the same as Medina Spirit. Except Medina Spirit also defeated older horses by winning the Gl Awesome Again – something his rival didn't do – and finished ahead of Essential Quality the two times they met, in the Derby (Essential Quality was fourth) and the Breeders' Cup
Classic (Medina Spirit was second to Knicks Go and Essential Quality was third).

The resilient Zedan and Baffert are somehow back again with Taiba, but how will voters respond this time? Will they snub Zedan and Baffert again and go with Epicenter, who had a fine campaign that included a win in the prestigious Gl Travers? Or will they jettison both dirt colts and go for Godolphin's Modern Games (Ire) (Dubawi {Ire}), who won two Grade l races on turf against older horses? Don't scoff, there's been some chatter about that on social media among potential voters.

Owner and handicapper (and economics professor) Marshall Gramm recently noted on Twitter the similarities of Taiba, Epicenter, and Modern Games to the trio of Snow Chief (three Grade l wins), Ferdinand (one), and Manila (three, all on turf) from 1986. Snow Chief won the Eclipse that year, but Manila, an outstanding turf horse, was the best of the three. Back then, however,
turf racing didn't have the same stature it now seems to hold with some voters.

These days it's hard to agree on anything. Consensus is elusive. The Good, the Bad, and the Ugly are seemingly interchangeable, depending on viewpoint. And facts seem to matter less than opinion. That's the chaos that Leone captured in 1966, and it's very much alive now.

Welcome to 2023.

Sid Fernando is president and CEO of Werk Thoroughbred Consultants, Inc., originator of the Werk Nick Rating and eNicks.

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The Week in Review: With Eclipse Ballots Mailed Out in Mid-December, Was Taiba at Disadvantage?

Eclipse Award ballots were sent out electronically to voters on Dec. 12, with 19 days remaining on the calendar in 2022. That's how it's done. The ballot always lands in your in-box with a few weeks to go in the year.

In a normal year, that's not a problem. Come mid-December there are only a handful of major races left on the calendar and most Eclipse races have been wrapped up by then.

But that wasn't the case in 2022. The GI Runhappy Malibu S. at Santa Anita turned into a race that voters had to pay attention to. It included Taiba (Gun Runner) and a win by him in the Dec. 26 race was something a conscientious voter had to consider before casting his or her vote.

Taiba won the Malibu, giving him three Grade I wins on the year and two more than his main competition for the 3-year-old championship, Epicenter (Not This Time). Prepared to vote for Epicenter, I changed my mind after the Malibu and voted for Taiba.

I did the right thing–I waited. But did everybody? And are there voters out there who would have voted for Taiba and not Epicenter had they waited. Might this cost Taiba the Eclipse Award?

This is a problem, but it's one that is completely avoidable.

When you receive your ballot, the subject of the late-year races at Santa Anita is addressed.

“It is strongly encouraged that you consider waiting to vote until after the conclusion of the Grade I races Dec. 26 at Santa Anita Park, which are the Malibu S., the La Brea S. and the American Oaks,” voters are told. Votes can be received as late as Jan. 3.

All that helps, buy why give voters and option to cast their ballots before the year is over?

According to publicist Jim Gluckson, it's not yet known how many people voted in 2022 before the Malibu. In 2021, 13 votes came in before the Dec. 26 races at Santa Anita. In 2020, it was only seven.

That's good news and shows that people are being careful, but even seven votes or 13 votes is seven or 13 too many when you consider how close the Epicenter-Taiba vote is likely to be. The fix is obvious. Do not accept any votes until Jan. 1 and then give voters an extra five or six days beyond Jan. 3 to get their votes in. What's the hurry? Get it right.

Todd Vs. Chad

In the same column where I threw my support behind Taiba for the 3-year-old championship, I wrote that Todd Pletcher was the “obvious” choice for the Eclipse Award for leading trainer. Steve Laymon, the co-owner of GI Breeders' Cup Filly & Mare Sprint winner and Chad Brown-trainee Goodnight Olive (Ghostzapper), emailed to say he thought that Pletcher was anything but a no-brainer for the award and that Brown deserved consideration. He's right.

In several relevant categories, Brown's numbers are better than Pletcher's. He had more winners (244-223), more stakes winners (51-36) and more Grade I winners (18-17). Brown's stable had earnings of $31,057,362, while Pletcher bankrolled $30,482,937. Brown won with 26% of his starters, while Pletcher won with 22%.

Nonetheless, I still feel Pletcher deserves the title, based largely on the fact that he will have trained three champions in 2022 in Nest (Curlin), Malathaat (Curlin) and Forte (Violence). That's a phenomenal, Eclipse Award-worthy feat. Goodnight Olive will be the champion and a Brown-trained horse may win in the filly and mare turf category. At best, he can get two. Pletcher also deserves a lot of points for finishing one-two in the GI Belmont S.

Two great trainers and two great years. But the edge goes to Pletcher.

Has Gmax Fixed All the Bugs?

It was announced last week that Trakus, which debuted in 2006, is shutting down. The company that operated the timing and tracking system revealed that it was losing money and that the time had come to pull the plug. Trakus went a long way toward bringing the timing of races out of the dark ages and it will be missed.

But perhaps the biggest issue is that, with Trakus no longer an option, more and more tracks will convert to Gmax. Gmax is the timing system that is operated by Equibase, a subsidiary of The Jockey Club, and competed with Trakus for business. That could be a problem.

Since Gmax came on the scene in 2018, it has been plagued by problems and there have been numerous instances at several tracks where the final times of races were inaccurate. In a sport where bettors rely heavily on how fast races were run and speed figures that is unacceptable. Worse yet, it was inconceivable that in 2022 and with all the technology out there, horse racing couldn't figure out a way to accurately time its races.

Fortunately, it appears that Equibase has figured out how to solve what had been the most pressing issue, getting the times right when it comes to the final time of a race. Randy Moss, whose many duties in the industry include his work with the Beyer speed figure team, has been an outspoken critic of Gmax and has pressed The Jockey Club to fix what has been broken. Moss said that the Gmax timing system now includes a wireless beam that is used in conjunction with the GPS technology to record the final times. The new system is working, and Moss said he no longer finds any serious problems when it comes to getting the final times of the races right at Gmax tracks.

However, according to Moss, The Jockey Club has yet to address the issue of fractional times. He says that inaccuracies in this area are still a frequent problem.

“We've seen many races where the fractions are off by two-fifths or three-fifths of a second,” he said. “There is a difference between :21.80 and :22.15. To handicappers, that's a big difference. Some fractions are reasonably accurate and it varies from race to race. But it is a problem.”

Moss said that the reported fractions in the 2021 GI Breeders' Cup Distaff and the GI Breeders' Cup Classic, run at Del Mar and timed with Gmax, were not correct.

“At Del Mar for the Breeders' Cup, they had converted to the hybrid beams, so the final times were good,” he said. “At the same time, some of the fractional times were not. Remember how incredibly fast the fractions were for the Distaff? They were off by two to three-fifths of a second. The pace was still extremely fast, but it wasn't as fast as the posted times. The same thing with the Classic. People were wondering how Knicks Go could run that fast and still hang on. He didn't run as fast as the fractional times that were posted.”

Moss said he has been told that The Jockey Club is aware of the problem and is experimenting with using wireless beams to record fractional times. That would be a needed step in the right direction and can't happen soon enough.

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Why I Voted for Taiba

Who was the most talented 3-year-old male to race this year? I will not argue with anyone who says the answer is Epicenter (Not This Time). He won the GII Louisiana Derby, finished second in the GI Kentucky Derby and second in the GI Preakness S. From there, he won the GII Jim Dandy S. and the GI Runhappy Travers S. before an injury kept him from finishing the GI Breeders' Cup Classic. Other than the Classic, he finished first or second in all of his starts and won four graded stakes. Classy, talented, consistent, Epicenter checked a lot of boxes.

But was he the most accomplished 3-year-old male to race in 2022 and what bearing should that have on the Eclipse Awards? That's where this gets tricky. After his win in the Travers, it looked like Epicenter had wrapped up the 3-year-old championship, but he never won again, while Taiba (Gun Runner) finished the year with a flourish. He won the GI Pennsylvania Derby, finished third in the GI Breeders' Cup Classic and, on Monday, won the GI Runhappy Malibu S. at Santa Anita. Earlier in the year, he won the GI Santa Anita Derby, in what was just his second career start.

Some want to argue that Taiba wasn't overly impressive in the Malibu, that he didn't beat a great field and that his time for the seven furlongs was just .24 seconds faster than the fillies went two races earlier in the GI La Brea S. None of that matters, a Grade I win is a Grade I win and, for Taiba, it was his third this year. Epicenter won only one Grade I, the Travers.

So do you go with the best horse (probably Epicenter) or the one who accomplished the most (probably Taiba)? There's no wrong answer here, but I have always given preference to the horses who won the most Grade I races and the score is Taiba 3-Epicenter 1. That's why I filled out my ballot for Taiba.

For a horse to be deserving of a championship they must have succeeded at the highest levels of the sport. The way we keep score is with the graded stakes system and Grade I's are the gold standard when it comes to accomplishments. In this one very important category, Taiba was clearly the winner over Epicenter.

When it comes to head-to-head competition, neither comes out ahead. Epicenter finished in front of Taiba in the Kentucky Derby, but Taiba was making just his third lifetime start and wasn't ready for such a tough assignment. Taiba finished ahead of Epicenter in the Breeders' Cup Classic, but you can't fault Epicenter for being injured. Had trainer Bob Baffert not been suspended by NYRA, Taiba very well could have faced Epicenter in the Travers, a race that could have gone a long way toward proving who was better, but we weren't lucky enough to see that showdown.

A lot of Epicenter fans say he should be rewarded for his body of work. But what about Taiba's body of work? He started seven times and won four races. That's comparable to Epicenter, who ran eight times and also won four starts.

As is usually the case, most other Eclipse categories were no-brainers. There were, however, a couple of races worthy of debate.

I was ready to vote for War Like Goddess (English Channel) after she ran a creditable third against males in the GI Breeders' Cup Turf. That race came after she beat the boys in the GI Joe Hirsch Turf Classic S. But my vote went to Regal Glory (Animal Kingdom). The vote was based on the same logic I used for Taiba-versus-Epicenter. Regal Glory won three Grade I races and War Like Goddess won only one.

In the human categories, Irad Ortiz Jr. (jockey), Todd Pletcher (trainer), Godolphin (owner and breeder) were all obvious winners. The one vote I cast that went against the grain was in the apprentice jockey category. I voted for Vicente Del-Cid, who dominated at Delta Downs and Evangeline Downs. While it's true he didn't ride at top-tier tracks, through Dec. 26 he had 274 wins. Trailing only Irad Ortiz, that's second best in the country and 91 wins ahead of Jeiron Barbosa, second in that category among bugs. It won't be long before Del-Cid is winning races on a regular basis at a top track.

The Eclipse Awards ceremony honoring this year's champions will be held Jan. 26, 2023, at The Breakers Palm Beach in Florida. It's then that we will find out if the 3-year-old title goes to Epicenter or Taiba. Both are deserving winners, it's just that Taiba deserves it a little more.

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