Familiar Arguments at Hearing for Baffert's Stay of Suspension

The hearing on the motion for a stay to be granted for Bob Baffert's 90-day suspension by the Kentucky Horse Racing Commission (KHRC) was held on Thursday, Mar. 16 in the Franklin County (Ky) Circuit Court, with both sides repeating what are now familiar arguments about the initial ruling.

Thursday's court hearing was held after the original hearing scheduled on Mar. 2 was postponed when it became apparent that the KHRC would be holding a special meeting two days later to consider and rule on Baffert's request for a stay. This meeting was held on the appointed day and the KHRC voted 10-0 to deny stays of penalties while Baffert and owner Amr Zedan appeal the drug positive rulings related to the disqualification of Medina Spirit in the 2021 GI Kentucky Derby. These penalties include a 90-day suspension and $7,500 fine for Baffert while Zedan was ordered to forfeit Medina Spirit's purse winnings.

After the KHRC board denied Baffert's appeal for a stay on Mar. 4, the matter was taken to the circuit court before judge Thomas Wingate, who did not give an indication of his final decision after Thursday's hearing but said a ruling would be determined by Monday, Mar. 21.

Baffert attorney Craig Robertson was the trainer's sole representative present in court on Thursday while fellow Baffert attorney Clark Brewster appeared later in the hearing over Zoom.

As Robertson began his opening statement, Wingate asked for clarification on the matter of the penalties that came out of Arkansas in May of 2020 when Gamine (Into Mischief) and Charlatan (Speightstown) tested positive for lidocaine. Both horses were initially disqualified and Baffert was handed a fine and a 15-day suspension, but the disqualifications and suspension were later overturned.

“What the facts showed were numerous issues with the original findings of the stewards,” Robertson explained, citing how one sample that supposedly came from Charlatan was incorrectly labeled as a sample from a gelding. “In the end, they set aside the stewards' ruling with no disqualification.”

In Robertson's opening statement, he discussed how the KHRC was attempting to paint Baffert as having a problematic drug violation history, but said that Baffert's violation record stacks up to virtually every trainer in America.

“Their narrative is false,” he said. “By any objective measure, Mr. Baffert has been a tremendous ambassador for horse racing.”

He continued in pointing out the significance of a 90 day suspension because the California Horse Racing Board (CHRB) has confirmed that they too will honor the suspension set forth by the KHRC. Trainers suspended 60 days or more are banned from all CHRB premises and must forfeit their stalls.

“It would essentially end his Hall of Fame career,” Robertson said. “It's preposterous that we would end a Hall of Fame career over a topical ointment. What's even more preposterous is that we end his career before he can appear in court.”

The KHRC is scheduled for a full hearing regarding Baffert's appeal on April 18^th. Up to four days of proceedings are scheduled if needed.

“I'm not asking for you to rule today that Mr. Baffert wins on the merits of this case. That day will come. What I'm asking is that he not be forced to serve his penalty now until his case is heard. If he's forced to serve his penalty now, he can't get those days back if he subsequently wins the appeal. It's not uncommon for stewards' rulings to get reversed by the KHRC itself or by this court,” Robertson said, citing the 2015 Graham Motion case where Motion appealed a suspension and fine handed down by the KHRC. Both were later thrown out by Wingate.

Robertson's arguments placed heavy emphasis on differentiating betamethasone valerate–found in the topical ointment Otomax–and the intra-articular injection of betamethasone acetate. Test results obtained from the New York Equine Drug Testing and Research Laboratory confirmed the finding of betamethasone valerate in Medina Spirit's system.

Robertson noted that while KHRC regulations state that a 14-day stand-down period is required for the intra-articular administration of the corticosteroid as betamethasone acetate, he said that no such violation took place because there was no intra-articular injection of betamethasone as a corticosteroid. In addition, he said that KHRC regulations state that the presence of a detectable concentration of more than one corticosteroid will constitute a violation.

“They only prohibit injections of betamethasone acetate,” he said. “There is no prohibition or regulation of the topical ointment betamethasone valerate and no limit of detection standard unless there is more than one corticosteroid. The KHRC could have specified limit of detection for one corticosteroid or they could have specified for betamethasone topically. They didn't. They are asking for you to read things into the rules that simply don't exist.”

Jennifer Wolsing, the general counsel for the KHRC, began her statement by saying, “There has been a lot of talk about the unprecedented nature of the KHRC's action to deny the stay. It is our position and I would like to submit that Mr. Baffert's conduct is also unprecedented and justifies the stay denial that we have before us today.”

Wolsing went on to explain how Baffert's accrued penalties are “literally off the charts,” how the suspension is justifiable because he presents an elevated risk of re-offense and also how the suspension serves to protect racing participants, the horses, integrity in racing and the public's confidence in racing.

In response to Robertson's comments about the overturned rulings in Arkansas, Wolsing pointed out that Baffert still received fines for the positives from Charlatan and Gamine because the commission found that Baffert was “the absolute insurer of the condition of the horse.” Because Baffert was still fined for both horses, the KHRC considers these occurrence as two separate violations.

Judge Wingate asked Wolsing about the difference in the administration of betamethasone topically and intra-articularly.

“[Regulations] explicitly state, 'Except as expressly permitted in [in 810 KAR Chapter 9], while participating in a race, it is a violation if a horse carries in its body any medication that is foreign to the horse.'”

She went on to state that betamethasone is not expressly permitted, referencing the KHRC's Drug Classification Schedule where betamethasone is listed as a Class C medication. She explained that because the KHRC did not make a distinction as to the form of betamethasone, it therefore indicates that any form of betamethasone is considered a Class C violation. She also notes that a warning is listed on the withdrawal guidelines that states medication administered outside of the guidelines may lead to a positive test result.

“The source of betamethasone is pharmacologically irrelevant to its impact on the horse,” she said. “When betamethasone valerate is absorbed, valerate is cleaved off and you have pure betamethasone in a horse's system.”

When Wingate asked Wolsing about Robertson's earlier point about the KHRC attempting to put Baffert out of business, Wolsing responded by saying that it was not her understanding that the 90-day suspension would put Baffert out of business. She explained that he could transfer his horses to another trainer for that period and said that the trainer could apply for the same stall space and Baffert's employees would not necessarily need to be laid off.

Wolsing concluded, “At the end of the day, we have to look at who is more likely to prevail. Our regulations are very clear. Betamethasone, in whatever form, is completely prohibited on race day…We have unprecedented behavior and it is totally allowable for the KHRC to deny a stay. If it's allowable, this presents the appropriate case to deny a stay.”

Robertson did rebuttal several points from Wolsing's statement.

Addressing her statements regarding the medication specifically, he said that she is relying on a “catch-all” term that betamethasone is a foreign substance, but in looking at the regulations for betamethasone, regulations are clear about the intra-articular injection of betamethasone acetate but nothing is said about topical administration.

“There's nothing in there that says betamethasone valerate is prohibited,” he said. “They could have stated that, but they didn't. They can't go around punishing this man-and putting him out of business and ending his Hall of Fame career– for something they didn't put in their regulations.”

Addressing the fact that Baffert did pay fines for the positives of Charlatan and Gamine at Oaklawn Park, Robertson said that the stewards did not overrule the fines because of political pressure and that while Baffert could have appealed the fines and won, he did not because he considered the overturned disqualification and suspension a victory.

In regards to Wolsing's points about Baffert transferring his horses to another trainer if he is forced to serve the suspension, Robertson pointed out that such a transfer would have to be agreed upon by the other trainer and the horses' owners, and the other trainer would also have to agree to take on Baffert's employees.

“It's not nearly as simple as Ms. Wolsing tried to paint it,” he noted.

KHRC executive director Marc Guilfoil was called to witness to talk about denying Baffert's request to a stay.

When Wolsing asked about his decision, he responded that he put a lot of thought into it and cited the KHRC's mission statement of maintaining integrity and honesty in horse racing. He said that he reflected on Baffert's announcement in November of 2020 where he made several statements including that he would hire Dr. Michael Hore of Hagyard Equine Medical Institute to “add an additional layer of protection to ensure the well-being of horses in my care and rule compliance.” Guilfoil said that to his knowledge, Baffert failed to fulfill the promises made in the public statement.

“Trainer 101 is to look at a medication you're giving and see if there are any prohibited substances,” Guilfoil said, then referencing how Baffert's four medical violations within a one-year time frame averaged to one per 88 starts.

When Wolsing asked Guilfoil how Baffert's case compares to others he has worked on in the past, Guilfoil said, “The word unprecedented has been thrown around quite a bit and I do agree that it is unprecedented, and the two [violations] in Kentucky were two premiere races in the state of Kentucky.”

When Robertson had the opportunity to question Guilfoil, he asked Guilfoil if the executive director could conclude, without question, that he knew Baffert had not attempted to fulfill the promises made in the public statement, to which Guilfoil ultimately said he could not.

Attorney Clark Brewster, who represents both Zedan Racing Stable and Baffert, also gave a statement via Zoom. He too emphasized the distinction of betamethasone administered as a topical or an intra-articular injection and pointed out that prior to Medina Spirit's drug positive, Baffert had only had one medication positive in 29 years of racing in Kentucky. He ended by stating that he was confident that Baffert would ultimately be exonerated.

In order for Wingate to grant Baffert a stay, the judge must conclude that Baffert's stable would suffer irreparable harm without a stay and must also determine that the trainer's appeal could reasonably lead to an overturned ruling at the April 18^th hearing.