Different Jurisdictions, Different MMV Rules Could Play In Baffert’s Favor

As news broke Tuesday of another positive post-race drug test for a Bob Baffert trainee, some readers found themselves wondering — when do these alleged violations begin to add up to a single, long suspension?

The answer to that remains unclear, but it’s probably, “They won’t.”

After Charlatan and Gamine tested positive for lidocaine following their races at Oaklawn Park this spring, Baffert announced he would be appealing the 15-day suspension given out by the Arkansas Racing Commission.

As reported last week, Baffert-trained Gamine got a positive test post-race for betamethasone after her third-place finish as the favorite in the Grade 1 Kentucky Oaks, but that case has not yet been adjudicated because testing on the split sample is not complete. (If a split sample does come back negative, the commission will not pursue charges against a licensee.)

Finally, the most recent case, a positive test for dextorphan from Merneith – second in a July 25 allowance race at Del Mar – has been confirmed on split sample, but the stewards’ hearing into the matter won’t take place until Nov. 12.

That means, from a regulatory perspective, none of Baffert’s positive tests from this year are closed cases yet.

A hearing will take place on Thursday into whether or not stewards should disqualify Justify or Hoppertunity from 2018 races based on scopolamine positives. The CHRB has already made clear that it is not pursuing action against Baffert’s license in either of those cases after a recommendation by equine medical director Dr. Rick Arthur that the positive test likely resulted from hay contaminated with jimsonweed.

Baffert’s home base of California provides a sliding scale of suspensions and fines for repeated medication violations in the same penalty class. (Lidocaine and dextorphan carry a Category or Class B penalty in Arkansas and California, while betamethasone carries a Class C penalty in Kentucky.) Per California rules, one Category B offense gets between 30 and 60 days’ suspension, but a second offense in two years could carry 60 to 180 days. Currently however, stewards cannot take into account violations from other states when deciding what constitutes a repeat offense in a given penalty category; even if they could, they would have to focus on completed cases, meaning those not under appeal. That means that under current rules, if California stewards do decide to suspend Baffert for the dextorphan, they’ll have to address it as a B violation in a vacuum when deciding on a suspension length or fine amount.

That may seem frustrating to readers who feel Baffert’s violations are adding up, even if they are for therapeutic substances. This is the kind of situation a multiple medication violation (MMV) penalty system was designed to address. The MMV, which is in force in the Mid-Atlantic, is supposed to operate similarly to many state systems that assign points to a driver’s license for repeat violations. Those points can compound the base fines or suspensions given out for a violation if the license holder is a repeat offender, regardless of the penalty category of previous offenses. The idea is that repeated low-level offenses eventually pack a big enough punch that a trainer will be more careful, even with therapeutic drugs that are regulated but not considered major performance enhancers. In an ideal world, the MMV system is supposed to tally offenses across jurisdictions.

California hasn’t yet finalized adoption of MMV language but the rule is in process. The proposed language has completed the 45-day public comment period and is likely to be on the agenda for a Nov. 19 meeting of the CHRB to be publicly heard and (potentially) adopted. Even after that vote, however, a CHRB spokesman said it takes new rules roughly two months to complete the administrative process to become enacted, so California’s MMV rule won’t be live until early 2021. Part of the proposed rule language to be considered on Nov. 19 would allow stewards to consider violations from other jurisdictions. It remains legally unclear, but seems unlikely, however, that the CHRB could use out-of-state violations occurring before finalization of the MMV rule against a trainer after the rule’s implementation.

Kentucky has not yet taken up MMV language. A 2016 initiative by former Kentucky Gov. Matt Bevin aimed at reducing red tape for Kentucky businesses required state agencies to reexamine and simplify existing language, which also slowed the drafting of new regulation.

Arkansas does have MMV language on the books. Currently, Baffert’s appeal in Arkansas is still in progress. A spokeswoman for the Arkansas Racing Commission confirmed Wednesday that the case is still in the legal discovery process and no hearing date has been set.

MMV language will only allow officials to take into account points from cases where all appeals have been exhausted. So, Arkansas couldn’t issue MMV points unless its appeal was concluded after proceedings in California and Kentucky are complete.

All this means that, if Kentucky officials confirm the betamethasone overage and California officials proceed with a suspension and/or fine for the dextorphan overage, they will likely be required to consider each case in their state’s bubble, which would suggest fairly mild sanctions for each.