W. Craig Robertson III | Horse Racing Free Tips

At 2 1/2-Year Mark, Bettors-Vs.-Baffert Lawsuit on Cusp of Getting Booted Back to Original Court

The New Jersey-based lawsuit in which a group of bettors are alleging they were cheated out of their property by Bob Baffert when his betamethasone-positive trainee, Medina Spirit, crossed the finish wire first in the 2021 GI Kentucky Derby and purportedly prevented the plaintiffs from cashing winning tickets on the runner-up is on the cusp of being transferred back to a federal court in California where it was first initiated 2 1/2 years ago.

In a Dec. 22 filing in United States District Court (District of New Jersey), the judge in the case ordered both sides to file letters by Jan. 15 “if either party wishes to explain why this case should NOT be transferred back to the Central District of California.”

The judge explained his rationale: “This case relates entirely, or all-but-entirely, to alleged events at a 2021 horse race in Kentucky,” the judge wrote. “And this case was originally filed by the Plaintiffs in the Central District of California, before the Plaintiffs voluntarily dismissed their claims and re-filed them here. This is a case, in short, that has little, if anything, to do with New Jersey.”

The original version of the suit, led by Michael Beychok, the winner of the 2012 National Horseplayers Championship, was filed in California four days after Baffert's May 9, 2021, disclosure that Medina Spirit had tested positive for betamethasone after winning the May 1 Derby.

It wasn't until Aug. 22, 2023, that the Kentucky Horse Racing Commission's disqualification of Medina Spirit from the 2021 Derby–which also affirmed the elevation of runner-up Mandaloun as the official winner–was sustained after a long administrative appeals process.

Baffert, plus his incorporated racing stable, were named as the defendants back in 2021, and the plaintiffs' California-filed version of the suit made it a point to note that “Venue is also proper for these claims in this Court because Defendants reside and transact their affairs and conduct business in the State of California and, specifically, through this District.”

The more than 30 class members of that suit chose the Racketeer Influenced and Corrupt Organizations Act (RICO) Act as a tool to try and collect damages. In addition, they sought an order from the judge stating that Baffert must divest himself from the sport.

RICO is a sweeping 1970 federal statute initially designed to combat the Mafia. But in a legal sense, it has long since lost its “organized crime” stigma. RICO today is rarely used to go after stereotypical “godfather” figures. Instead, RICO has evolved as a civil litigation component, and is most often asserted by purported victims of white-collar crimes, such as mail and wire fraud.

Two months after its initial filing, the class-action complaint was withdrawn from the California federal court on July 22, 2021. One day later, an amended version of it resurfaced in New Jersey.

The New Jersey complaint from July 23, 2021, alleged that, “[Baffert's] multiple and repeated acts of doping and entering horses into Thoroughbred races, including the Kentucky Derby, constituted racketeering activity.”

In subsequent court documents, the plaintiffs explained why they believed New Jersey should now be the proper venue. They cited a legal precedent that involved a case in which the act of simulcasting a race into New Jersey from another state “permits the Court to exercise personal jurisdiction over it.”

The plaintiffs also alleged that Baffert's purported doping fraud included his occasional starts at Monmouth Park.

But as far back as September 2021, when Baffert first moved for dismissal of this lawsuit, his court filing termed that switch from California to New Jersey “blatant forum shopping” because the new venue has “no meaningful connection to the allegations raised in their Complaint.”

The term “forum shopping” refers to the practice of litigants angling to get their case heard in the court thought most likely to result in a winning outcome. It is not illegal or unethical to forum shop, but judges can and do let parties know if they believe lawyers are stretching legal boundaries by trying to get their cases heard in venues that are most favorable to them.

Another Baffert filing, on Jan. 12, 2022, again alleged that the plaintiffs were off base in attempting to litigate the matter in New Jersey.

“The law is clear that there must be case-specific contacts with the forum state…” that filing stated. “Even if one were to accept Plaintiffs' tinfoil conspiratorial premise that Baffert engaged in a nationwide racketeering scheme to defraud individuals he never met, Plaintiffs would still have to establish that at least some of the alleged illicit conduct actually occurred in New Jersey. They have utterly failed to do so. This matter has zero connection to New Jersey and it must be dismissed.”

Earlier this year, a federal judge in Kentucky dismissed a similar (but entirely separate) class-action lawsuit initiated against Baffert by a group of horseplayers who alleged negligence, breach of contract, and unjust enrichment because their losing pari-mutuel bets on the 2021 Derby also weren't honored as winners.

Baffert's attorney in the New Jersey case, W. Craig Robertson III, made sure the judge in New Jersey was aware of that Kentucky dismissal when considering the motion to dismiss, which is still active and has yet to be ruled upon.

“Identical to this case, the [federal complaint in Kentucky] was commenced by a purported class of aggrieved gamblers against [Baffert] asserting claims connected to pari-mutuel payouts from the 2021 Kentucky Derby,” Robertson wrote in a July 26, 2023, letter to the U. S. District Court of New Jersey.

“The Western District of Kentucky dismissed those claims as a matter of law,” Robertson continued. “Specifically, the Court held that Kentucky's Rules of Racing govern all bets placed on the Kentucky Derby and because the Rules are clear that all payouts are final based on official race-day results, aggrieved gamblers have no injury at law and no viable cause of action even if race results are later altered.

“Similarly here, [Baffert seeks] dismissal of the case before Your Honor due to a lack of cognizable injury, whether under the RICO statute or otherwise,” Baffert's attorney wrote.

Counsel for the plaintiffs responded with their own letter to the judge Aug. 7, writing that the Kentucky decision “has no relevance or merit to the present matter” and that the “causes of action brought by the present Plaintiffs in this action are separate, distinct, and dissimilar from the claims brought by separate parties” in the dismissed Kentucky lawsuit.

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Medina Spirit’s Derby DQ Upheld at KHRC Level, Ripening Case for Court Challenge

The Kentucky Horse Racing Commission (KHRC) on Tuesday closed the 27-month regulatory saga involving Medina Spirit's GI Kentucky Derby drug disqualification by unanimously voting to deny appeals by trainer Bob Baffert and owner Zedan Racing Stables while accepting a hearing officer's recommended order that the penalties originally imposed by the Churchill Downs stewards be affirmed in their entirety.

But the legal battle to restore Medina Spirit's win in America's most historic and important horse race appears to be just now ramping up.

That's because now that the KHRC's decision is final at the state administrative level, it is ripe for being elevated to the court system and challenged by the losing parties.

Medina Spirit crossed the wire first in the 2021 Derby but subsequently tested positive for betamethasone in a KHRC post-race drug screening.

The Aug. 22, 2023, final order denying the appeals on behalf of Baffert and Medina Spirit's owner, Amr Zedan, officially elevates Mandaloun as the official winner of the 147th Derby.

Not only does the denial of the appeals uphold Medina Spirit's DQ, it lets stand the 90-day KHRC suspension that Baffert already served in 2022 but wanted expunged from his record. Also upheld was the $7,500 fine the KHRC imposed upon Baffert.

Baffert did not respond to TDN's request for comment prior to deadline for this story.

But the Hall-of-Fame trainer's attorney, W. Craig Robertson III, said he will soon be outlining next-step legal strategies with Baffert.

“It's disappointing that the KHRC engaged in no analysis whatsoever of the Hearing Officer's Findings of Fact or Conclusions of Law,” Robertson wrote in an email. “Neither did the KHRC's Order address any of the many objections we raised to the Hearing Officer's ruling.

“Instead, the KHRC did what it does best–rubber stamped its own foregone conclusion. I will discuss with Mr. Baffert, but believe it is highly likely the matter is appealed so that it can finally be presented to an impartial Court,” Robertson wrote.

Eight days after the 2021 Derby, Baffert first disclosed the betamethasone positive at a press conference outside the barn where Medina Spirit was stabled at Churchill Downs. In doing so, he was getting out in front of the official announcement that would come later by the KHRC.

In Kentucky, betamethasone is classified as a Class C drug (on an A-through-D scale with A being the most severe). It is prohibited in any amount in a post-race test.

At first, on May 9, 2021, Baffert chose to implicate various non-specific circumstances as the underlying culprit in the positive test. Two days later, on May 11, Baffert's legal team issued a press release stating that Medina Spirit was treated with the betamethasone-containing ointment Otomax as late as the day before his Derby win to help deal with a skin lesion.

Baffert and Zedan's lawyers would eventually build more than two years of court cases and administrative appeals around the contention that the betamethasone that showed up in Medina Spirit's post-race positive test was the type that came from a permissible topical ointment and not via some other restricted means, like an intra-articular injection.

The Twitter account for Zedan Racing posted a statement on Tuesday that underscored that this method-of-delivery argument would continue to be a central plank in any future court case.

“Today's decision by the KHRC finding the use of a commonly used topical ointment to be a medication rule violation relating to Kentucky Derby winner Medina Spirit was expected. We now look forward to a court's review and legal analysis of the express rules and basic constitutional principles involved. We genuinely believe that the wisdom and guidance that a court can provide will bring clarity benefitting all industry partners and particularly trainers and veterinarians.”

Although no KHRC ruling was issued in the first nine months after Medina Spirit's positive finding, the gaming corporation Churchill Downs, Inc. (CDI), in June 2021 barred Baffert from competing at its portfolio of tracks for two years.

Medina Spirit died on Dec. 6, 2021, collapsing to the track after working five furlongs at Santa Anita Park. A necropsy conducted by the California Horse Racing Board stated that a “definitive cause of death was not established despite extensive testing.”

In 2022, Baffert initiated a federal lawsuit that challenged CDI's ban. The case dragged into 2023, when it was dismissed.

The KHRC finally held its hearing on Medina Spirit's positive test on Feb. 14, 2022, and issued the rulings against Baffert and Zedan a week later.

When stay requests pending appeals filed with the KHRC were denied, Baffert and Zedan took the matter to court, with the KHRC case unfolding around the same time as Baffert's unsuccessful lawsuit against CDI.

In the spring of 2022 Baffert failed to get an injunction against the KHRC that would have kept him from serving his suspension, so he stepped away from training between early April and early July of that year to sit out his penalty.

The KHRC appeals then led to six days of evidentiary hearings in August 2022. The process got delayed a month later when the hearing officer had to recuse himself after one of Baffert's attorneys bought a horse at auction that the hearing officer co-owned.

A new hearing officer, Eden Stephens, took over, and in May 2023 issued a report that concluded that “the stewards' decision was made on reliable, substantive evidence that the horse, Medina Spirit, was administered and carried the prohibited substance, betamethasone” and that “the KHRC's regulations do not state that any route of administration excuses a post-race betamethasone positive.”

It took nearly three more months before the KHRC's vote on the hearing officer's recommendations made it onto the Aug. 22, 2023, monthly meeting agenda. In the interim, CDI extended its private-property banishment of Baffert through 2024.

On Tuesday, the KHRC did not discuss any specifics of the appeals prior to the unanimous voice vote to reject them. The item was listed last on the meeting agenda, and it occurred after a break for the commission to have discussions in an executive session.

When the KHRC reconvened in open session, chairman Jonathan Rabinowitz asked if any commissioners wanted to “abstain due to conflicts of interest, or perceived conflicts of interest.” Four did: Michael Dudgeon, Lesley Howard, Charles O'Connor and Catherine Parke.

Rabinowitz then called for a vote “approving a final order as stated.” But exactly what the KHRC commissioners were voting on was not read into the public record.

TDN had to subsequently ask for and receive a copy of the order from KHRC staff after the meeting to learn what it stated.

“The Hearing Officer's Recommended Order is approved, adopted, and incorporated herein by reference as a part of this Order,” the five-page document read, in part. “Petitioners' appeal is therefore DISMISSED. This is a FINAL AND APPEALABLE ORDER…”

The document listed the procedures for just such an appeal, which, according to state statue, must happen in a Kentucky circuit court within 30 days after issuance of the final order.

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Baffert, Horseplayers Spar Anew in Class-Action Derby Suit

Monday's ruling by the Kentucky Horse Racing Commission (KHRC) that disqualified Medina Spirit from the 2021 GI Kentucky Derby has now triggered dueling letters to the federal judge overseeing the class-action case in which a group of bettors are suing trainer Bob Baffert for allegedly engaging in a years-long pattern of racketeering based on his purported “doping” of Thoroughbreds.

The plaintiffs in the case, led by Michael Beychok, the winner of the 2012 National Horseplayers Championship, on Feb. 22 filed a letter in United States District Court (District of New Jersey) informing the judge that Medina Spirit was disqualified for a betamethasone overage and that Baffert was suspended for 90 days and fined $7,500.

On Feb. 23, Baffert's lead attorney, W. Craig Robertson, III fired back with his own letter alleging that the public filing by the plaintiffs was “inappropriate, misleading, and, most importantly, irrelevant to the Defendants' Motion to Dismiss which is currently pending before the Court.”

Robertson also wrote that the KHRC's decision is not a final ruling, because Baffert plans to appeal it.

“While the final status of Medina Spirit's Kentucky Derby win is far from decided, whether or not the horse is disqualified makes no difference when it comes to the legal issues argued in [Baffert's motion to dismiss the case]. Simply put, Plaintiffs' letter does nothing to rebut the overwhelming authority that the Plaintiffs, a group of disgruntled gamblers, cannot maintain this action as a matter of law.”

The original version of the lawsuit was filed four days after Baffert's disclosure that now-deceased Medina Spirit had tested positive for betamethasone after winning the May 1, 2021, Derby. Baffert, plus his incorporated racing stable, are the defendants.

The class members of the suit have alleged that they were “cheated out of their property” because they placed wagers on other horses and betting combinations that would have paid off had “the drugged horse” not won the Derby.

The plaintiffs' letter Tuesday would seem to indicate that they want the judge to consider the KHRC's Feb. 21 decision to DQ Medina Spirit when ruling on Baffert's currently active motion to dismiss the suit.

Baffert's lawyer underscored that the KHRC ruling should have no bearing on the matter that is currently before the court, which is the motion to dismiss the suit.

“[Baffert] moved to dismiss this matter based on the following legal grounds: (1) lack of personal jurisdiction over the Defendants and improper venue; (2) Plaintiffs' lack of standing to bring their claims; and (3) the failure of the Amended Complaint to state a valid claim under civil RICO or state law. The recent Stewards' Ruling has no impact on any of these legal arguments.

“First, it does not magically create jurisdiction over the Defendants who are based in California and raced Medina Spirit in Kentucky.

“Second, the Stewards' Ruling is preliminary and there is already a proceeding underway before the KHRC to review that ruling since it is not a final decision of the administrative agency. Only now will the matter undergo a full blown Administrative Hearing, including discovery and depositions.

“Thereafter, any ultimate ruling of the KHRC may be appealed to Kentucky's state courts. Thus, we are a long way away (likely several years) from any final decision concerning Medina Spirit's status.”

Robertson continued: “Of particular importance, even if Medina Spirit is ultimately disqualified, the Plaintiffs' claims fail as a matter of law. Among other reasons, this is because the rules of racing provide that pari-mutuel wagering is unaffected by any disqualification. The Stewards' Ruling which the Plaintiffs provided to the Court recognizes this fact when it specifically states 'Pari-mutuel wagering is not affected by this ruling.'

“Plaintiffs' argument that a disqualification somehow creates a compensable injury has been addressed and roundly rejected [in precedent cases]. [T]he case law could not be more clear that, among other things, gamblers with gambling losses are simply not within the class of individuals those laws are designed to protect,” Robertson wrote.

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Master of Excuses or Victim of Vendetta? Caustic Baffert/NYRA Hearing Closes

Bob Baffert's five-day hearing on “detrimental conduct” charges levied by the New York Racing Association (NYRA) closed Friday with NYRA's attorney arguing that the Hall-of-Fame trainer has trashed the sport with such an unprecedented litany of medication violations that NYRA needs to be allowed to punish him, while Baffert's lawyer countered that the real extraordinary aspect of the case involves vendetta-based accusations that could result in draconian sanctions NYRA has never before attempted to impose upon any other trainer.

“Bob Baffert is not a cheater,” the trainer's attorney, W. Craig Robertson III, told hearing officer O. Peter Sherwood during the Jan. 28 proceeding. “NYRA used Bob Baffert when it was convenient for them…. Now, they want to kick him out, kick him to the curb…. Your honor, Mr. Baffert's career is in your hands. And that is not an exaggeration.”

NYRA's lawyer, Hank Greenberg, put his closing argument this way: “The statement of charges in this case charges [Baffert] with three violations: That he is a detriment to the sport of Thoroughbred racing, that he is a detriment to the safety of horses and jockeys, and that he is a detriment to NYRA and its business…. We respectfully submit that we have established our case, we have met our burden, and we respectfully urge you to recommend a lengthy suspension.”

The next step in the process is for the hearing officer to write up a report containing findings of fact, conclusions, and a recommended disposition. That report–there is no timetable for when it's due, according to rules that were created last year by NYRA–will then go to both parties and an adjudicatory panel appointed by NYRA's president and chief executive officer, David O'Rourke.

Patrick McKenna, NYRA's vice president of communications, told TDN via email Friday that members of that panel will be selected in the coming days. Asked who is eligible to be selected for it, he wrote, “Although there are no restrictions or required qualifications, individuals who possess an understanding of horse racing or its regulatory framework will be preferred.”

Within a week of the report's issuance, either party may submit written exceptions to it, and then the panel will have the discretion to adopt, modify or reject any or all of the hearing officer's report or recommended disposition. The panel will then issue a final decision that will include a statement setting forth the facts that form the basis of their decision, which shall take effect immediately and is not appealable to NYRA itself (although Baffert could once again bring the matter back before a court of law).

Although Baffert's legal team has previously protested the alleged “fait accompli” fairness of NYRA coming up with the rules for this hearing, its process, the charges, and the appointment of both the hearing officer and the deciding panel, a federal judge ruled last week that NYRA has a right to move ahead in that manner.

Because NYRA has the burden of proof, its legal team was permitted to start Friday's proceedings by offering both the first closing argument and then getting a rebuttal after Baffert's counsel had its turn. This last-at-bat arrangement that gave NYRA two turns to speak was unsuccessfully protested by Robertson as being “inappropriate” in the setting of a hearing, but Sherwood permitted it, presumably because that's how trials in court usually work.

Greenberg led off by accentuating how testimony this week had revealed that no witnesses could ever recall any other Thoroughbred trainer besides Baffert racking up six equine medication positives within a 14-month period, three of which occurred in Grade I stakes (the 2021 Kentucky Derby, the 2020 Kentucky Oaks, and the 2020 Arkansas Derby).

“What is presented to you by this case with these facts, your honor, are a rampage of positive drug tests and violations in frequency in number that has no precedent in the modern history of the sport,” Greenberg argued. “As a consequence of those violations, it is also undisputed and undisputable that there was an avalanche of extraordinary, negative, critical coverage of this great sport…. The consequences of that, the damage that it did to the reputation of the sport, is incalculable.”

Greenberg said testimony proved how NYRA goes to great lengths on a daily basis to make sure horses are fit and safe to race. He described the need to conduct pari-mutuel wagering anchored by integrity and brand equity as being the “lifeblood of existence for NYRA.”

Even if Baffert's recent history of equine drug violations occurred in other jurisdictions, it still “hurts NYRA” because of the “saga that was consuming the sport over that 14-month period as each violation came and each excuse was given,” Greenberg said.

“That harm, that fallout, was caused by one person–this person, your honor,” Greenberg said, referencing Baffert sitting off to the side in the Manhattan conference room, wearing a black sweater and black pandemic mask, his eyes and posture suggesting weariness at the end of a long week.

When Robertson had his turn at the podium, he underscored that NYRA was essentially attempting to re-litigate violations that had already been adjudicated by other regulatory bodies (none of which resulted in suspensions for Baffert), which he said is a violation of the legal principle res judicata.

“Your honor, when this matter started, I told you that NYRA was going to throw at you a bunch of inuendo, speculation and distortion. And that is exactly what they have done throughout this proceeding…” Robertson said. “At the beginning of this case, I said that vindictiveness, the bias, the unfairness of NYRA has no bounds. I should add to that the hypocrisy of NYRA has no bounds.”

By way of example, Robertson pointed out that NYRA never attempted to initiate any form of exclusion against two other high-profile trainers who had much more serious penalties handed down by New York regulators within the past decade.

One was Rick Dutrow, Jr., who in 2011 was suspended 10 years and fined $50,000 by the predecessor agency of the New York State Gaming Commission (NYSGC) after one of his Aqueduct winners tested positive for an opioid analgesic and syringes containing a painkiller and a sedative were found in Dutrow's stable office. Robertson said Dutrow was allowed to start 516 horses at NYRA tracks while he unsuccessfully tried to appeal that ruling, and NYRA never once independently tried to banish him.

The other is Linda Rice, who in 2021 was given a three-year license revocation and $50,000 fine for “improper and corrupt conduct” by the NYSGC for receiving race-entry information about rival horses from NYRA employees. She is currently still actively racing at NYRA tracks after obtaining a court injunction that allows her to participate while she appeals the NYSGC ruling, but, like Dutrow, NYRA never initiated its own separate exclusion against her.

“So when Mr. Greenberg, with all due respect, says there's no evidence of a vendetta, why absolutely there is. It's the first time they've ever done this to somebody,” Robertson said.

Greenberg, in his rebuttal, said Baffert shouldn't be one to complain about not getting his figurative day in court.

“There isn't a person in this country that gets more [due] process than Bob Baffert, from more courts and more tribunals. He's maxxing out on due process. I don't know that anyone's ever seen anything quite like the amount of process he gets by courts, administrative agencies, and [other ruling bodies],” Greenberg said.

Robertson told the hearing officer that it was significant how NYRA, during this past week of hearings, didn't produce a single witness to substantiate or even read through its own statement of charges. NYRA's testimony had instead largely relied upon various specialists and experts who tried to paint a wide-ranging picture of how NYRA was accountable to many state entities and how the magnitude of Baffert's alleged harms put its franchise at risk.

“What's worse, your honor, is that the individuals at NYRA who created these trumped-up charges didn't have the guts to come here and testify about them,” Robertson said. “Where are the NYRA board members? Where was NYRA's CEO? Where [were] any NYRA executives to testify about this? If this matter is of such great importance to them and their business operations, where are those individuals?…They at least ought to have shown up and looked him in the eye and explained why they're taking their actions against him…

“On the other hand, Mr. Baffert showed up and stood up…” Robertson said, alluding to Baffert's half-day of testimony Jan. 27. “There wasn't a single question that he didn't answer in a genuine manner.”

In his rebuttal, Greenberg blasted Robertson for even bringing that up. He pointed out that in comparable settings in a courtroom, it is not customary for prosecutors to introduce then go through an accusatory document like a statement of charges paragraph by paragraph. Plus, he added, it wouldn't have been appropriate to call NYRA's CEO as a witness, because he's the same person who will be appointing the adjudicatory panel.

“The most Derbies [Baffert] has won is the 'Excuse Derby,'” Greenberg said. “Maybe it's [a groom] urinating in [a stall] or back patches on assistant trainers or drugs being planted and rewards being offered, or it's the veterinarian's fault. Again and again and again, excuses.”

Most meritless of all of the claims made during the heated week of hearings, Greenberg said, is the notion presented by Baffert's legal team that the trainer just wants to be treated like anyone else.

“No he doesn't…not even close….. Mr. Baffert does not want to be treated like everyone else,” Greenberg said, implying that Baffert wants–and gets–special treatment.

Robertson scoffed at that assertion.

“So yes, when I say I want Mr. Baffert to be treated like anybody else, absolutely,” Robertson said. “Because they've singled him out…and in the face of [other] individuals found guilty of serious, serious violations, NYRA says, 'Come on in, you're welcome at our tracks–unless your name is Bob Baffert.'”

Friday's closing arguments marked exactly 257 days since NYRA initially tried to rule off Baffert back on May 17, 2021, in the wake of now-deceased Medina Spirit's Derby drug positive for betamethasone.

Greenberg, near the end of the proceeding, answered his own rhetorical question about what NYRA would have expected with respect to Baffert's initial disclosure about that test result, alluding to the series of press conferences and media appearances in which Baffert at first denied treating Medina Spirit with betamethasone, then later claimed the positive was the result of applying a skin ointment he didn't know contained that drug.

“What would we [have expected from Baffert]?” Greenberg said. “That he honor the profession that has been so good to him. That he comport himself with dignity. That if he made a mistake, it's not a shameful thing to say, 'I'm sorry. I regret it. I will do better in the future.' That is all we would expect. That's all we could expect. And what we saw was the exact opposite.”

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