Baffert Hearing Postponed in Franklin County

FRANKFORT, KY.–The hearing to appeal Bob Baffert's suspension by the Kentucky Horse Racing Commission in Franklin County (Ky.) Circuit Court was delayed Wednesday morning and rescheduled until Mar. 17. The delay was put into place to allow the KHRC hearing on the same matter, scheduled for this Friday, Mar. 4, to be held in advance of the Franklin County hearing, as a successful outcome for Baffert with the KHRC Friday would have rendered Wednesday's hearing moot.

Judge Thomas Wingate said he would issue his decision on Monday, Mar. 21, after the Friday, Mar. 4 hearing, and that no penalties may be assessed until that point.

Wednesday's filing asked for four forms of legal relief, arguing that typically, trainers are almost automatically granted a stay. The suspension was due to begin Mar. 8.

After the KHRC stewards'  Feb. 21 ruling disqualifying Medina Spirit (Protonico) from the 2021 GI Kentucky Derby and suspending Baffert for 90 days, the KHRC denied Baffert's appeal for a stay of that suspension. Baffert is appealing that decision before the entire KHRC board in a hearing that will be held this Friday.

Wingate said that he could not remember an instance in the past where a stay had not been granted. “I don't remember,” he said. “I've done a lot of Thoroughbred rulings, and I always thought it was pretty much automatic. But we haven't really seen where anybody cared about it (enough to appeal.) Most trainers don't have the legal team Baffert does to drag it out.”

Baffert's attorney Craig Robertson, the trainer's sole representative in court Wednesday, cited the 2015 Graham Motion case, where Motion appealed a suspension handed down by the KHRC for after a positive finding of methocarbomol in Kitten's Point (Kitten's Joy) in her win in the 2015 Bewitch S. at Keeneland. He was initially suspended five days and fined $500. Motion had never had a drug positive prior to that and the suspension and fine were thrown out by Wingate two years later, who ruled that the absolute-insurer rule was unconstitutional. Wingate retorted that Motion had no history of drug positives, where Baffert does.

Last night, the KHRC answered Baffert's motion to stay in a filing in Franklin Circuit Court where they reiterated that they “properly found no good cause to stay Mr. Baffert's 90-day suspension and $7,500 fine pending adjudication of his claims. “Mr. Baffert and Mr. Zedan have not met the Maupin standard for a temporary injunction or a temporary restraining order. The plaintiffs have no chance of success on the merits and will not suffer irreparable harm in the absence of a stay on their penalizations. In addition, the equities decidedly favor the protection of the racing public from continued medication violations that tarnish the sport and diminish public confidence in horse racing.”

Baffert's team has contended that the suspension will effectively put him out of business, and that the positive should not result in a disqualification because betamethasone was not administered into Medina Spirit's joint, but applied through the cream Otomax for a skin rash he was suffering.

The KHRC reaffirmed that the commissions' regulations do not distinguish between topically administered betamethasone and injectable forms. “The Commission's regulations prohibit a horse from carrying betamethasone in its body during a race, regardless of the route of administration. Although 810 KAR 8:010 Section 23 and KHRC 8-020-2 Section 12 refers to intra-articular administration of cortico-steroids, such as betamethasone, these regulations neither state nor imply that an alternative administration route converts a post-race betamethasone positive into a permissible outcome.

“Plaintiffs' primary argument falsely concludes that the Commission does not regulate a topical administration of betamethasone because the Commission only provides voluntary withdrawal guidelines for betamethasone as an intra-articular injection. Yet, a closer review of the withdrawal guidelines leads to the opposite conclusion.”

“Regardless of whether the betamethasone is administered by ointment (valerate ester) or injection (acetate ester), once betamethasone is absorbed into the horse's body, the valerate or acetate ester cleaves from the molecule and leaves pure betamethasone. Thus, the source of the betamethasone is scientifically irrelevant to its pharmacological effect,” the filing continues.

The filing also takes objection to a claim by Baffert's counsel questioning the impartiality of steward Tyler Picklesimer, and called Baffert's pattern of medication positives “literally off the charts.”

“810 KAR 8:030 Section 4(3)(b) expressly contemplates penalties for trainers with up to three prior medication positives in the past 365 days. It does not provide guidelines for penalizing a trainer like Mr. Baffert, who accumulated four positives in a year.”

Moreover, consequences alone are not enough to guarantee the court will intervene, the KHRC said.

“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough to justify injunctive relief,” they write.