America’s most famous trainer won’t be involved in this weekend’s Kentucky Derby, while a NYRA hearing officer has also called for a two-year ban in New York. In his regular column, Charles Hayward recaps the reasons for Bob Baffert’s myriad travails.
We are now only a few days away from the 148th running of the Kentucky Derby on Saturday May 7, 2022, at Churchill Downs – and what a difference 12 months can make.
A lot has transpired since last year’s Derby when the Bob Baffert-trained Medina Spirit finished first past the post, only to be subsequently disqualified by the Kentucky Horse Racing Commission.
As is well documented, the disqualification resulted from a blood sample from Medina Spirit, who tested positive for a prohibited substance, betamethasone, a corticosteroid that acts as an anti-inflammatory with potential performance enhancing results.
After a second post-race positive test confirmed the presence of betamethasone, Churchill Downs announced on June 2 that they were suspending Baffert’s privilege to race at Churchill Downs for the next two years.
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Churchill Downs Inc. CEO Bill Carstanjen issued a statement, saying: “Reckless practices and substance violations that jeopardize the safety of our equine and human athletes or compromise the integrity of our sport are not acceptable and as a company we must take measures to demonstrate that they will not be tolerated.
“Mr. Baffert's record of testing failures threatens public confidence in Thoroughbred racing and the reputation of the Kentucky Derby. Given these repeated failures over the last year, including the increasingly extraordinary explanations, we firmly believe that asserting our rights to impose these measures is our duty and responsibility.”
On May 17, two weeks prior to the Churchill Downs suspension, the New York Racing Association (NYRA) made its own move. NYRA, who host the Belmont, the third leg of the Triple Crown, issued a decision suspending Baffert indefinitely from their tracks, namely Belmont Park, Saratoga and Aqueduct.
Baffert contested the NYRA action. On June 14, the trainer filed suit in the US District Court for the Eastern District of New York and sought a preliminary injunction based on the theory that under the New York Racing Law, NYRA lacked the authority to suspend him indefinitely.
The court ruled that as a state actor, NYRA was obligated to provide Baffert with a hearing prior to taking action barring him from access to NYRA facilities. NYRA was required to participate in a hearing for Baffert under the Due Process Clause of the US Constitution. The court then granted the injunction.
However, NYRA then promulgated specific hearing rules and procedures to apply in cases where it alleged that a person licensed by the Gaming Commission has engaged in conduct at a NYRA racetrack that is believed to be injurious to the health or safety of horses and where such conduct may warrant revocation of the person’s NYRA-issued credentials.
And so it continued. On September 9, NYRA issued a Statement of Charges and scheduled an administrative proceeding addresses to the charges. On November 19, Baffert returned to court seeking an order to bar this proceeding from going forward. This was denied.
On December 23, NYRA served Baffert with an Amended Statement of Charges (ASOC). By the ASOC, NYRA was seeking to exercise its discretionary business judgment to exclude Baffert from entering or stabling horses anywhere on the grounds that NYRA operates. In the facts alleged therein, NYRA sets forth three charges against Baffert for engaging in conduct alleged to be detrimental to:
– the best interests of racing
– the health and safety of horses and jockeys
– NYRA business operations
An evidentiary hearing was held in this administrative proceeding on January 24-28, 2022. Thereafter the parties submitted proposed findings of fact and conclusion of law. The parties also submitted responses and objections to each other’s proposed findings and conclusions.
This is enough of the administrative/legal detail for now. Here is a link to the report written by former Judge O. Peter Sherwood, who served as the hearing officer in NYRA’s dispute with Baffert.
In his comprehensive report that issued on April 27, 2022, Sherwood recommended that Baffert receive a two-year suspension from participation in races at NYRA venues. The Hearing Report provides specific details that NYRA presents with responses and assertions from Baffert’s attorneys.
Read NYRA's full Hearing Report 'In the matter of Robert A. Baffert'
This report has been sent to a three-person panel featuring Saratoga Springs attorney John J. Carusone Jr (Saratoga Springs attorney), Will Alempijevic (executive director of the New York Thoroughbred Horsemen’s Association) and Humberto Chavez (director of the New York Racetrack Chaplaincy of America program).
Both NYRA and Baffert will each have 14 days to respond to the report. After the 14 days, the panel will have 10 days to make their decision.
I would suggest that you take the time to review the following sections from the report.
Page 6 – Post-race drug tests – July 27, 2019-May 1, 2021
These pages cover a 14-month period during which Baffert-trained horses tested positive for regulated substances or prohibited on seven occasions in the states of Arkansas, California and Kentucky.
Page 19 – Baffert’s response
Baffert disputes NYRA’s characterization of these incidents as prohibited.
Pages 20-22 – May 1, 2021 Medina Spirit at the Kentucky Derby
Statements largely from Baffert and Churchill Downs regarding the Derby.
Page 42 – Obligations to supervise racing activities nationwide
NYRA’s risk from the possibility of its franchise being revoked.
As an example of the post-race drug tests listed above, I would like to turn to May 2, 2020, at Oaklawn Park, when Baffert ran then-Kentucky Derby favorite Charlatan and Gamine, destined to become a superstar filly.
Sent off 2-5 favorite, Charlatan won a leg of the Arkansas Derby, a Grade 1 event with a purse of $500,000; the race was run in two divisions that year, with Baffert also landing the other half with Nadal. Gamine, meanwhile, won a relatively minor $90,000 allowance race for fillies.
As was to become the subject of much controversy, it emerged that both Charlatan and Gamine tested positive for Hydroxylidocaine, a local anaesthetic or nerve block that is used in horses to relieve pain which can also mask an injury that would otherwise prevent a horse from racing.
The allowable threshold for Hydroxylidocaine in Arkansas was 20 pg/ml. Charlatan’s post-race test for lidocaine was 46 pg/mL (or more than twice the allowed level) and his split sample came back at 86.8 – more than four times the legal level.
Gamine’s post-race test for lidocaine was 185pg/mL or more than nine times the legal level; her split sample came back at 294pg/mL or more than 14 times the allowed level.
Baffert stated that his longtime and highly regarded assistant trainer Jimmy Barnes had a lidocaine patch on his back in Arkansas which might have accounted for the lidocaine somehow being transferred into the horses’ bloodstreams.
However, on July 14-15, the Oaklawn Park board of stewards disqualified both Baffert horses, resulting in first-place purse losses of $300,000 and $54,000.
Baffert appealed against the stewards’ decision to the Arkansas Racing Commission, who rescinded the DQs and Baffert’s suspension – and presumably restored the purse payments totaling $354,000. For some reason, the Commission did fine Baffert $5,000 for each positive test, for a total of $10,000.
The decision by the Arkansas Racing Commission ruling is inconsistent with the Arkansas Racing Rule 1233, an absolute-insurer rule which provides that a trainer is ultimately responsible for the condition of any horses entered regardless of the acts of any third parties.
Moving on from medications, Baffert’s lawyers state that because there have been no recent infractions by Bob Baffert at NYRA tracks, then NYRA should have no concerns about Baffert’s activities at other non-NYRA tracks. NYRA strongly disagrees.
NYRA has a reputation as one of the leading Thoroughbred racing companies in the US and is growing through several national initiatives. NYRA’s account wagering business, NYRA Bets, launched its internet business in 2007 and expanded to a true national platform in 31 states in 2016 and NYRA allows customers to watch and wager on over 250 racetracks in the US and international markets.
Starting in 2018, NYRA has expanded its relationship with Fox Sports television where together they produced over 700 hours of live television in 2021 on NYRA races and other selected major tracks. NYRA has extended its contractual relationship with Fox Sports through 2030 and Fox Sports has agreed to purchase a 25% interest in NYRA Bets.
Most importantly, a franchise agreement between NYRA, New York State and the State Franchise Oversight Board (FOB) sets performance standards with which NYRA must comply, including standards regarding the number and types of races it must hold each year and – particularly relevant to this matter – standards addressing equine safety and health.
For example, the FOB has comprehensive oversight authority over virtually all NYRA operations, including the authority to revoke NYRA’s franchise if the performance standards are not met.
NYRA is clearly not alone in its concern about Bob Baffert’s conduct and reputation in the Thoroughbred racing industry, and I presume that NYRA is in complete support of the concerns that Churchill Downs Inc. president Bill Carstanjen articulated in the third paragraph of this article.
As was comprehensively reported at the time, Baffert issued a statement via his attorney at the Breeders’ Cup at Keeneland in November 2020 detailing what had clearly not been a good year and pledging to be more vigilant in future.. In case anyone needs a reminder, here are Baffert’s words:
“2020 has been a difficult year for everyone. It has been no exception for my family, my barn, and me. I am very aware of the several incidents this year concerning my horses and the impact it has had on my family, horse racing, and me.
“I want to have a positive influence on the sport of horse racing. Horses have been my life and I owe everything to them and the tremendous sport in which I have been so fortunate to be involved.
“We can always do better and that is my goal. Given what has transpired this year, I intend to do everything possible to ensure I receive no further medication complaints. As such, I want to announce that, beginning immediately, I plan to implement the following practices in an effort to make my barn one of the leaders in best practices and rule compliance:
1. I am retaining Dr. Michael Hore of the Haygard Equine Medical Institute to add an additional layer of protection to ensure the well-being of horses in my care and rule compliance:
2. I am increasing the training and awareness of all my employees when it comes to proper protocols
3. I am personally increasing my oversight and commitment to running a tight ship and being careful that protective measures are in place.”
Sounds good. But unfortunately, a Blood-Horse article dated May 12, 2021, suggests at least some of Baffert's pledges went unfulfilled. The trainer's attorney Craig Robertson was asked if Dr. Michael Hore had indeed been hired. Here is the response as per the Blood-Horse:
“There were initial discussions and plans to begin the process of it materializing. They did not materialize as expected due to COVID, but I’ve had conversations with Dr. Hore the last couple of days about that very subject and discussing about getting that back on track.”
As noted above, both NYRA and Bob Baffert will have 14 days from April 27 (which would be May 11) to respond, and the three-person panel would in turn will have 10 days to finalize their decision.
Presumably that would be May 21, which means the Preakness Stakes might not be the only eagerly awaited racing result on the third Saturday in May.
• View all Charles Hayward’s previous articles in his influential View from the Rail series
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