By Bill Finley
Having practiced law for more than 25 years, attorney Darrell Vienna has pretty much seen all there is to see when it comes to equine law, drug infractions, penalties and how racing commissions and courts interpret the rules. A former trainer based in California, he is renowned as one of the foremost experts in his field. So when it comes to the case of Medina Spirit (Protonico) and the positive test for betamethasone following the GI Kentucky Derby, his brain is well worth picking. And Vienna has said that he believes that, when it is all said and done, there may be some good news for the Bob Baffert team and some bad news.
While the case involves dozens of issues, the two that are most pertinent are these: Should Baffert, due to mitigating circumstances, get off without receiving a fine or suspension; and what are the chances that the courts or the Kentucky Horse Racing Commission, due to those same mitigating factors, will rule that the Derby result should stand with Medina Spirit being declared the official winner?
The lawyers representing Baffert and owner Amr Zedan have been presenting the case that the drug got into Medina Spirit's system not through an injection, but the through the application of a topical ointment use to treat a skin problem. That, they argue, would mean that the medication inadvertently got into the horse's system and that there was no attempt to use it as a performance-enhancer. They have asked a court to rule that the Kentucky Horse Racing Commission must turn over a portion of the remaining post-race urine sample so that it can be sent for further testing to determine if in fact the betamethasone came from the ointment, Otomax.
“It appears to me that the argument [from the Medina Spirit legal team] is going to be twofold,” Vienna said. “Yes, there was a positive. But their interpretation of the rules is that if it wasn't injected and, instead was applied, that it wasn't a violation of the rules.”
Is that relevant? Quite possibly, yes. Kentucky's racing regulations cover just that sort of situation. The rule reads: “The stewards, judges, and the commission shall consider any mitigating or aggravating circumstances properly presented when assessing penalties pursuant to this administrative regulation.”
That could mean, Vienna said, that Baffert will not be subject to a fine or suspension.
“Let's assume that everything we have heard is correct and it was a result of the administration of a topical ointment,” Vienna said. “Then I think the adjudicator, whether it's the stewards or a hearing officer, will take those facts into account and make a determination as to whether or not they constituted mitigation and if so what is the extent or weight of that mitigation? Could Baffert leave that hearing without any sanction? Yes.”
Vienna said that a legal precedent was set in the 1994 case of Lavin v. California Horse Racing Board (CHRB), which the court heard after three horses tested positive for scopolamine. A California court ruled that the trainers involved should be exonerated, but the horses were still disqualified, costing their owners the purse money.
The same could happen with Medina Spirit. Though there might have been mitigating circumstances to explain how the drug got in the horse's system, it doesn't appear, Vienna said, that such a finding is relevant when it comes to whether or not a horse should be disqualified for a drug positive.
“If there is a finding of a drug positive in an official post-race sample and if that is confirmed by split sample testing, which is the case in this situation, it would call for a disqualification,” Vienna said. “I don't believe there are any mitigating circumstances involved with that.”
(Full disclosure: Vienna represented owner/trainer Mick Ruis in his efforts to have the Baffert-trained Justify (Scat Daddy) disqualified from his victory in the 2018 GI Santa Anita Derby because he tested positive for scopolamine).
Then there are the bans handed down against Baffert by Churchill Downs and the New York Racing Association. For Baffert, the Churchill ban of two years could be particularly damaging because it would mean that he cannot compete in the 2022 and 2023 Kentucky Derby. Baffert's lawyer Craig Robertson has yet to say much about those penalties, but it can only be a matter of time before he tackles that issue. Some believe that a privately owned racetrack has the legal right to ban trainers. Some aren't so sure. So that issue could also ultimately wind up in the courts. Vienna's opinion is that Churchill and NYRA banned Baffert without due process.
“There is a bigger issue [than the betamethasone positive] and it's the exclusion of a trainer,” he said. “The exclusion of a trainer from a racing facility, which has been imposed on Baffert both at Churchill Downs and by the New York Racing Association, is really unfortunate and inappropriate. Mr. Baffert has not had an opportunity to defend himself, to see what the accusation is and to be able to marshal and present evidence in his defense. To exclude him without the barest minimum of due process, that's a big issue. It might be more sexy and juicy to talk about the disqualification of a Derby winner, but this disregard for basic due process is a really big issue and is important. I'm absolutely opposed to that and I think we should all be concerned about the exclusion of a licensed person without due process. It is absolutely improper for him to be excluded from any racetrack before he has had a hearing.”
Vienna will get no disagreement from Robertson, who is a worthy foe for the Kentucky Horse Racing Commission. Baffert and Zedan presumably have deep pockets and don't seem inclined to go down without a fierce fight. That means the case could be tied up in the courts for years. In the meantime, the debate rages on. Is Baffert guilty? Should Medina Spirit be disqualified? As they say, stay tuned.
Rick Porter, a True Credit to the Game
The racing game lost a giant last week when owner Rick Porter passed away at age 80 after a lengthy battle with cancer. Porter represented everything that is good about this sport and racing could use a lot more just like him.
Porter was successful, a class act, a sportsman who truly loved the animal. That's why the breakdown of his Eight Belles in the 2008 Derby was so painful for him, to the point that it almost led him to get out of the business.
Many will remember him for the stars he campaigned, Songbird, Havre de Grace, Kodiak Cowboy, Hard Spun or for the time he brought World War II-D Day veterans to the track to meet Omaha Beach.
But his most lasting contribution to the sport came through his work with the National Thoroughbred Welfare Organization (NTWO), a charity he created. That some horses wind up in a slaughterhouse after their days on the track are through obviously troubled him, so he set out to do something about it. Porter dispatched his able assistant Victoria Keith to Louisiana, where the slaughter issue was an on-going problem. Thanks to Porter's effort, the NTWO saved hundreds of horses who otherwise might have been slaughtered. Talk about walking the walk.
Monmouth Handle Roars Back
Because the handle was down significantly over the first two weeks of racing, some surmised that bettors were staying away from Monmouth Park because the jockeys were no longer allowed to whip their horses.
But the story changed significantly during week three. Monmouth put together its best card of the season Saturday. There were 13 races, five of them on the grass, and the average field size was 8.07. It was a quality product and the bettors responded. The handle was $6,180,159. On the corresponding day in 2019 they bet $4,744,905. (Due to the coronavirus, there was no racing on this date in 2020). On Sunday, an 11-race card handled $4,893,374. On the corresponding day in 2019 and on a 12-race card, they handled $3,244,618.
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