There’s going to be a lot to unpack in this week’s hearing of the New York Racing Association versus trainer Bob Baffert.
In opening statements made by attorneys for the respective sides on Jan. 24, representatives of each made clear that they see a key two-year period in Baffert’s career very differently.
Henry M. Greenberg, shareholder in Greenberg Traurig and attorney for NYRA, laid out the organization’s frustration with Baffert’s recent history of therapeutic drug violations and also his handling of those violations in the national and trade media, highlighting what NYRA sees as a refusal to consistently accept responsibility for those violations.
“What this case is about and what the evidence will show is how one man — this man, the respondent — took a wrecking ball over a one-year period to the integrity of the sport that was so good to him for so many years,” said Greenberg. “He sullied and soiled, in one year, 365 days, three of the great races in America — the Arkansas Derby, the Kentucky Oaks, and the Kentucky Derby. Throughout that period, not once did he take responsibility for his actions, did he express contrition. Time and again, again and again, six times, he would blame others to try to avoid responsibility for his own actions.
“In 2020 and 2021, the only Triple Crown he’s responsible for is destroying three Grade 1 races.”
On the first day of the hearing, Greenberg tracked the changes in Baffert’s responses to Medina Spirit’s post-Kentucky Derby betamethasone overage in the national media — from the trainer denying the horse received the drug at all in a press conference he called after learning of the overage to his insistence days later that the overage was due to the administration of a topical ointment — as well as his representations that other overages, such as Gamine and Charlatan’s lidocaine tests in Arkansas and Merneith’s dextrorphan test in California, were due to environmental contamination.
“The evidence will show NYRA had an obligation to act,” Greenberg said. “It had an obligation to protect the sport of Thoroughbred racing and its integrity … Racetrack operators like NYRA and Churchill Downs have a social license, you will hear, with the public.”
Attorneys for Baffert say NYRA’s objections are overblown and beyond the organization’s authority.
“The facts in these case are going to be nothing like what you just heard,” said W. Craig Robertson in his opening statement, following Greenberg’s. “Bob Baffert is one of the most respected individuals in racing not just now, but in all time. NYRA, which they’ve just started, is going to throw at you innuendo, speculation and downright distortions. What I’m going to focus on are facts.”
Robertson pointed out that the drug positives at the heart of NYRA’s case — six picked up in a span of 14 months from July 2019 to September 2020 — are for therapeutic substances whose thresholds are measured in small concentrations. Further, he said, racetracks should not be allowed to take regulatory action against a licensee.
“The actions being taken by NYRA are unprecedented,” he said. “You’re the only thing standing between NYRA and [this suspension] happening.
“I’m not asking that you treat him any better than any other trainer. I’m just asking that you don’t treat him any worse.”
Robertson also chastised NYRA for taking action against Baffert before a ruling has been made in the Kentucky Derby betamethasone case. According to Baffert’s attorneys, no hearing has yet taken place in that case before the Kentucky stewards. The Kentucky Horse Racing Commission would not confirm to the Paulick Report last week whether one had been scheduled yet.
Only one witness was called to the stand in the first day of testimony — Rick Goodell, a regulatory attorney who has represented the New York State Gaming Commission in many drug and other rule violations cases over the past 20 years. Part of Goodell’s duties in New York were to recommend potential penalties for various rule violations, including drug violations. Greenberg asked Goodell to run through the list of Baffert’s drug positives and respective penalties in the context of his experience working for the state of New York. In the case of a lidocaine positives, which comprised two of the six violations at question, Goodell said he would have expected to pursue a 45-day suspension in each case, but offer the trainer 30 for their first lidocaine violation if they agreed not to pursue an appeal. In the case of phenylbutazone, which accounted for two more of the six violations, he expected to pursue 14 but offer a trainer seven days’ suspension if they agreed not to appeal.
All told, Goodell said a trainer with Baffert’s record in New York would have racked up 240 days’ suspension if he did not decline to appeal cases. Baffert did not serve days for any of the six.
(Those six overages were a phenylbutazone from a July 27, 2019 race at Del Mar; a phenylbutazone from an Aug. 3, 2019 race at Del Mar; two overages of 3-hydroxylidocaine at Oaklawn May 2, 2020; one dextrorphan in a July 25, 2020 race at Del Mar, and a betamethasone in the 2020 Kentucky Oaks in September. The Medina Spirit test is not counted towards the six since it hasn’t yet been adjudicated.)
Goodell also said that by his reading of the current draft of proposed regulations of the Horseracing Integrity and Safety Authority (HISA), the same record in the same period of time could result in a suspension as long as 18 months.
Of course, as Baffert attorney Clark Brewster pointed out, none of these violations took place in New York under current New York regulations, nor did they take place under HISA regulations, which are still in development. It remains somewhat unclear what could have been called a positive in New York because Goodell said New York keeps a document with drug testing thresholds but that Dr. George Maylin, director of the drug testing lab for New York state, maintains the right to call a positive if he believes a sample indicates a drug was given outside the regulated timeframe, even if it’s under the threshold.
Brewster and Robertson also suggested that NYRA’s actions here could be motivated by key New York racing personalities who may be “jealous” of Baffert and his success, or tired of losing to him. Goodell maintained he was not qualified to speculate on that.
Goodell’s testimony continues on Jan. 25. The hearing is projected to take three to five days total.
New to the Paulick Report? Click here to sign up for our daily email newsletter to keep up on this and other stories happening in the Thoroughbred industry.
Copyright © 2022 Paulick Report.
