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Baffert Wants Federal Judge Removed from Case Against CDI

Trainer Bob Baffert now wants the federal judge handling his year-old lawsuit against Churchill Downs, Inc. (CDI), to recuse herself.

The stated reason is that legislative lobbying efforts conducted by the judge's husband for two racing industry clients allegedly create a conflict of interest for Judge Rebecca Jennings in adjudicating Baffert's case.

Baffert is attempting to reverse the second year of a two-year ban by CDI that prohibits his trainees from accruing qualifying points and competing in the 2023 GI Kentucky Derby.

CDI first imposed that punishment in June 2021 because of a string of drug positives in horses Baffert trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and in the 2021 Derby.

The now-deceased Medina Spirit (Protonico) tested positive for the Class C drug betamethasone after crossing the finish wire first in the 2021 Derby.

Seven months later, the colt collapsed after a workout and died in December 2021.

Medina Spirit was posthumously disqualified from the Derby by the Kentucky Horse Racing Commission (KHRC) in February 2022.

Baffert's appeal on that matter (and a suspension he has already served but wants cleared from his record) is pending.

“The plaintiffs submit that the Court's impartiality is in question because [the judge's] husband, Michael Patrick Jennings and his firm, Commonwealth Alliances, are legislative agents employed by The Jockey Club,” Baffert's motion for recusal stated.

“The Jockey Club has actively intervened publicly and litigiously in the litigation surrounding the Bob Baffert/Medina Spirit matter since the beginning of state and racing association action against Mr. Baffert,” the motion stated.

“R. Alex Rankin, a named Defendant in this case, is a senior, influential member of the Jockey Club and serves as a Jockey Club Steward,” the recusal request continued. “The motion is brought on a good faith basis after a diligent investigation of the public record and not for 'other advantage or litigation tactic'…. [T]he impartiality of the Court is in question, and the necessary remedy is a disqualification.”

In an affidavit signed by one of Baffert's lawyers that accompanied the motion, attorney Clark Brewster stated that Patrick Jennings was also employed as a lobbyist by The Stronach Group (TSG).

Although TSG tracks have not banned Baffert, the filing noted that the lobbyist's engagement with TSG overlaps a time when “litigation was pending against TSG by Jerry Hollendorfer (a racehorse trainer excluded from Santa Anita by TSG).”

Brewster's affidavit stated that Patrick Jennings's firm was paid $50,750 by The Jockey Club during 2022, and that his personal income from that client was $34,256. His 2022 personal income from TSG was $34,038 out of $74,219 that went to his firm.

Baffert had initially sued CDI on Feb. 28, 2022, alleging civil rights violations related to what Baffert said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

According to the court docket, Judge Jennings was “randomly assigned” to the case on the same day it was filed.

“The fees earned in 2022 are a clear source of extrajudicial bias,” Baffert's filing stated. “At no time during the litigation did Judge Jennings disclose her husband's employment by The Jockey Club [or TSG].”

Brewster's affidavit laid out his version of recent events, including details of a spat that erupted over the past week involving differences of opinion related to alleged “ex parte” discussions between the judge and the CDI defense team that potentially occurred without Baffert's attorneys being included. The result was a written denial from the judge that anything improper happened, along with an admonishment from the judge to Baffert's legal team.

“After the Court adjourned on Feb. 3, I sent an informal email to lead counsel for the defense seeking some understanding of how he knew the Court would commence the continued hearing with the defense being permitted to call a party-witness (Mr. Baffert) out of order and cross-examine a party before he was presented by Plaintiffs' counsel,” Brewster stated in his affidavit.

“Given that not every contact with court staff is a prohibited ex parte communication, there was no accusation of ethical or judicial impropriety. The email was sent to gain an understanding of Defendants' surprising degree of knowledge about the mode and manner of the proceedings…

“Defense counsel sent an incendiary email response, copying Judge Jennings and accusing [Brewster] of making false accusations regarding ex parte communications between defense counsel and the Court,” the affidavit stated.

On Feb. 8 Judge Jennings issued a memorandum that stated, in part, that, “The Court has not engaged in ex parte communications with either side [and] Plaintiffs are warned that any future conduct implicitly threatening the Court, attempting to create or fabricate a situation suggesting recusal, or made for other advantage or litigation tactic will not be tolerated and may result in a show cause hearing and disciplinary action.”

Brewster claimed in his affidavit that he was “bewildered by the announcement of Judge Jennings and the 'warning' to counsel to not suggest recusal, given that counsel had made no effort to impugn the Court or to seek recusal.”

Then Brewster engaged in some Googling, which did lead to the seeking of recusal.

“To gain some understanding of Judge Jennings's disclosed concern regarding recusal, [I] searched the internet on Feb. 8 and discovered that Judge Jennings's husband, Michael Patrick Jennings, is the Legislative Agent/Lobbyist for The Jockey Club,” Brewster stated in his affidavit.

This is not the first time that a conflict-of-interest recusal has arisen in Baffert's intertwined legal cases and administrative appeals.

In September 2022, Clay Patrick, the hearing officer assigned to Baffert's KHRC appeal, recused himself three weeks after the appeal's testimony was heard.

Patrick stepped down after Brewster revealed that he had unknowingly bought a $190,000 horse at the Keeneland September Yearling Sale that was co-owned by Patrick, who operates Ramspring Farm.

The KHRC assigned a new hearing officer to that case.

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Letters To The Editor: James Gagliano

In Association of Racing Commissioners International (ARCI) President Ed Martin's letter to the Thoroughbred Daily News on Feb. 2, he once again defends the status quo with few facts and no real solutions to racing's lack of national uniformity in rules and regulations for safety and medication control.

Ed has been defending the status quo for years. In 2018, and again in 2020, Ed testified before Congress against the then-forerunner to the Horse Racing Integrity and Safety Act, saying it was “a radical and unnecessary federalization of a state responsibility that is exercised effectively.”

Exercised effectively?

Clearly, he chooses to ignore the March 2020 federal arrests, and ultimate convictions, of the 27 trainers and veterinarians who, incidentally, operated worry free for years under Ed's racing commissioners. He chooses to ignore that our industry is no longer operating in a vacuum, that our equine athletes have advocates outside the racetrack and they have influence with state and federal legislators. Finally, Ed chooses to ignore that HISA has been working hard, and for the most part cooperatively, with states and racetracks to implement HISA rules.

Ed needs to be reminded, again, how we got here.

Over decades, regulators have repeatedly “promised” to clean up horse racing. There have been countless calls for rule uniformity since I can remember. Virtually every industry conference has touted the future as having standardized nationwide rules with more vigorous enforcement. The concept is nothing new, but because of HISA, this is the first time the goal is truly within our grasp.

The Racing Medication and Testing Consortium did a lot of good for the industry, but the nationwide reform we thought would come from it never materialized. I had hopes for the National Uniform Medication Program (NUMP), but once again, the regulatory authorities of different jurisdictions were unable to enact the same rules and regulations across the nation. In 2020, The Jockey Club developed a scorecard for the NUMP to see if it was effective. It wasn't. Only nine states had fully adopted all four phases of the program; 16 states had adopted only one. Mid-Atlantic states joined forces over the years to come into compliance with NUMP, but most other regions did not.

Ed has long suggested that a federal racing compact among the state regulators is all that we need. He conveniently omits that there already is a compact, and it has attracted virtually no support from the membership of the ARCI. With the ability of individual states to opt out of rules they do not favor, the compact all but guaranteed the same morass of inconsistent and conflicting rules among the states so many key industry participants have long wanted to correct.

Ed wrote, “It's hard for some of us who have been around for a while to watch as this situation could have been avoided.” In a way, he's right about that point. HISA would never have had an adverse legal decision if the Horseracing Integrity and Safety Act had never become law. But, for those of us who want change, Ed's worn-out proposals to “get everyone in a room and come up with an alternative approach to avoid the endless and costly litigation” reflects an inability to either understand or appreciate that there is a divide in this industry between those who savor the illusionary comfort of the status quo and those who know that if racing is going to truly survive it must make safety of our athletes and integrity of our game our preeminent goals.

Perhaps Ed has been fighting against HISA since the beginning because he's afraid people will realize that the ARCI failed its mission. According to ARCI's website, it sets “…international standards for racing regulation, medication policy, drug testing laboratories, totalizator systems, racetrack operation and security, as well as off-track wagering entities.” So, HISA is making medication regulation standards uniform and meaningful, something ARCI has never been able to do.

It is abundantly clear to anyone inside or outside of racing that our current state-based anti-doping, medication control and safety rule structure is not equipped to create national uniformity and set high standards for safety and integrity.

As we learned in March of 2020, it took the resources of the FBI and outside investigators to get the job done and bring justice to the blatant cheaters manipulating racing, while at the same time, laying bare the incompetence of the regulators that were supposed to be protecting the sport. The Jockey Club has long supported the creation of a nationwide approach grounded in federal law because we realize that horse racing, as a national sport, cannot survive if history keeps repeating itself and national uniformity is never achieved.

Yet once again, Ed Martin is defending the status quo. Don't let him rewrite a history that he deservedly owns.

—James L. Gagliano, President and COO, The Jockey Club

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Letter to the Editor: HISA Smack Down

Despite HISA court filings claiming everything was legal and pronouncements that the HIWU anti-doping program starts on March 27th, reality needs to set in on the Thoroughbred industry in the same way it does for a young child who comes to realize that the Christmas Eve Santa tracking report may not be true.

This week's decision and mandate just issued by the Fifth Circuit Court of Appeals is nothing less than a smack down for HISA. It underscores that the constitutional questions are far from settled and may actually break against them. Given the FTC's prior action, this could doom HISA's hope of quick approval of the resubmitted medication control rules.

It's hard for some of us who have been around for a while to watch as this situation could have been avoided. The uncertainty of all this is deeply troubling to everyone.

Despite public pronouncements from Ms. Lazarus that HISA is transparent, the industry has no idea as to their financial stability. Some racetracks are quietly questioning whether to pay the HISA assessments and are researching if they can get their money back if it all goes south. Some testing labs have expressed similar concerns.

As for the States: 1) most could not elect to assume financial responsibility for HISA, and,2) HISA/HIWU has yet to secure any signed ADMC implementation agreements seeking the use of state assets or personnel, with or without reimbursement. It's not that the States are unwilling to help; it has to do with the avoidable problems associated with how HISA organized its programs and neglected to listen to realities raised during the countless implementation calls ARCI organized for them in 2021.

In May, 2022, I announced that most state racing commissions believed technical corrections to the statute were necessary in order for HISA to work. Rather than begin substantive discussions as to how to do that, HISA staff barreled forward and somebody, somewhere decided it was a waste of their time to have HISA leadership talk to me about easier ways to get where they are trying to get.

In August, while on a panel with Ms. Lazarus in Saratoga I proposed that HISA get everyone in a room and come up with an alternate approach to avoid the endless and costly litigation. That didn't happen. My repeated requests to meet privately with the HISA Board to share an independent assessment and an analysis of their options were also ignored. No skin off my back, but it is frustrating when you care about this industry and see a golden opportunity starting to slip away.

On a November American Horse Council call with congressional officials, Jockey Club staff questioned my personal credibility as I was explaining the new financial burden being put on racetracks just as I was making progress convincing a Member of the House Appropriations Committee of the need to add $50 million in federal funding for HISA. Heaven knows they could use it to mitigate the cost being imposed on the racetracks.

When that $1.7 trillion bill eventually passed there was not a dime for racing. Congressman Tonko, when asked by an Albany reporter why no money was included, responded that the industry didn't ask for any. Amazing, absolutely amazing.

Then there were laudatory press statements issued by major HISA supporters praising Senator McConnell for passing a “fix”. All that I could think of was “The Emperor's New Clothes” or the angry ladies in the 1984 Wendy's “Where's the beef?” commercial. Apparently from Tuesday's court action, the tweak to the Act didn't work and racing missed a golden opportunity to have some federal funding.

So here we are. Despite the hard work of many, this is starting to look like a mess.

While the Santa tracking system may not be truth, the children who used to rely on it have found they can still have Christmas. So too for racing. But it may have to look different than what we have now–a fat man stuck in a chimney being pushed by his supporters from above with a stick. There's an easier way if only some people were not so intransigent.

Ed Martin is the President of the Association of Racing Commissioners International, a non-profit group of international regulators which provides a mechanism for collective policy formation, the exchange of information, research, education and training, and integrity advocacy.

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Formal Dress Code Ended By The Jockey Club

Formal dress codes will no longer be in place at any of The Jockey Club's 15 racecourses beginning this year. The move is a result on the part of the organisation to make horseracing more “accessible and inclusive”.

The only exceptions to the new rule are offensive fancy dress or offensive clothing of any kind and replica sports shirts. The Queen Elizabeth II Stand at Epsom Downs Racecourse will also continue to require either morning dress or formal daywear on Derby Day.

Nevin Truesdale, Chief Executive at The Jockey Club, said, “Horseracing has always been a sport enjoyed by people from all different backgrounds and it's really important to us to be accessible and inclusive. We hope that by no longer placing an expectation upon people of what they should and shouldn't wear we can help highlight that racing really is for everyone.

“For those who visit our venues, a day at the races is all about spending quality leisure time with friends and family and we believe people enjoy themselves best when they feel relaxed. A major part of that is wearing clothing which you are comfortable in.

“While The Jockey Club has a rich heritage and history it is also a forward-thinking organisation which places a great emphasis on diversity and inclusion and always seeks to reflect modern trends. So, when we reviewed this area of the raceday experience, it has been clear to us that enforcing a dress code seems rather outdated in the 21st Century in the eyes of many of our racegoers.

“Of course that doesn't mean we are discouraging people from dressing up for a day at the races if they want to. This is about giving people a choice and the opportunity to come racing dressed however they feel most comfortable and confident, while also bearing in mind the challenges regularly presented by the British weather.”

He added, “It is a common misconception that a day at the races has always required you to dress in a certain way, regardless of the fixture. In fact, even at really high profile days like the Cheltenham Festival, that has simply not been the case and our only recommendation has been to dress appropriately for the weather.

“By taking the decision not to impose dress codes at any of our 15 racecourses we now hope to get rid of any ambiguity or uncertainty and simply let people know that whatever they feel comfortable wearing they'll be welcome to join us on a raceday.

“For many, clothing is the ultimate expression of individuality and by removing the need to be dressed in a certain way we hope to really demonstrate how inclusive we believe our sport is, as well as being a fantastic and thrilling day out.”

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