At the end of a nearly four-hour questioning of Bob Baffert on Thursday, the fourth day of the New York Racing Association’s hearing to assess whether it will suspend the trainer from racing at its facilities, a lawyer representing the organization disclosed important news about the pending result of the 2021 Kentucky Derby.
The Baffert-trained Medina Spirit, who crossed the wire first in the race May 1, tested positive for the corticosteroid betamethasone. The substance is not allowed in a thoroughbred racehorse’s system on race day in Kentucky, which could result in disqualification.
The Kentucky Horse Racing Commission (KHRC), which is responsible for adjudicating the case, has not announced a hearing date on the matter, nearly nine months after the race.
But Henry Greenberg, one of the lawyers representing NYRA in the Baffert case being heard this week in New York, said one of Baffert’s lawyers, Clark Brewster, disclosed “in front of the [hearing officer O. Peter] Sherwood and [Baffert lawyer Craig] Robertson that there is a [KHRC] hearing scheduled for Feb. 7.” According to a source who spoke on condition of anonymity, Brewster brought up the KHRC’s hearing date last week during a “pre-hearing conference” for the NYRA proceedings.
KHRC Executive Director Marc Guilfoil did not immediately respond to requests for comment Thursday on the Medina Spirit hearing date and the nature of the hearing. According to several industry sources, the KHRC hearing will not be open to the public or media.
Baffert didn’t clearly confirm the date of the KHRC hearing during his testimony Thursday, either. Initially, he said, “I don’t know,” when Greenberg asked if the KHRC hearing was Feb. 7. Baffert later responded, “Maybe so, I don’t know,” before he finally said, “There is a hearing, sir,” and Greenberg ended his questioning.
Baffert testifies under NYRA cross examination
Outside of that news, the questioning of Baffert by Robertson and the cross examination by Greenberg mostly featured established facts and theories from both sides about the seven positive drug tests for Baffert-trained horses from July of 2019 to May of 2021. The final positive on that list was Medina Spirit’s from the Kentucky Derby.
The Baffert legal team contended the drug tests and overages during that time were cases of contamination or minor overages of therapeutic medications and not doping.
In two cases of lidocaine overages at Oaklawn Park, Baffert’s explanation is that his assistant, Jimmy Barnes, was using Salonpas patches that included lidocaine , which could have led to contamination. That explanation was found to be credible by the Arkansas Racing Commission, which overturned the disqualifications for the horses Charlatan and Gamine and reversed Baffert’s suspension, although it still imposed a fine on the trainer. Baffert said he could have appealed the fine, but he wanted to move on from the case.
For a dextrorphan overage in a filly named Merneith, Baffert’s explanation was that a groom taking cough syrup urinated in the horse’s stall at Del Mar. The cough syrup, according to Baffert and his legal team, contained dextrorphan, so if the horse consumed hay or staw that was urinated on by the groom, they contend it could have led to contamination.
In the Medina Spirit case, Baffert claimed that a topical ointment, Otomax (which contains betamethasone), and not a joint injection, was the reason for the positive Kentucky Derby test.
Those explanations were challenged by Greenberg, using the NYRA narrative (similar to that of Churchill Downs Inc., which has suspended Baffert) that the trainer always finds an excuse when he is in trouble.
Greenberg also questioned Baffert’s assertion that he runs a “tight ship,” pointing to his record of drug violations and the absolute insurer rule, which places the trainer as the responsible party for drug sanctions.
In the Merneith case, Greenberg brought up the initial response from the horse’s groom, that he had not urinated in the stall. Baffert contended, when California Horse Racing Board (CHRB) investigators initially inquired, the groom was “very nervous” and “embarrassed” and changed his story once he was assured he wouldn’t get in trouble.
Claims of sabotage?
Greenberg also quoted a CHRB investigator regarding two phenylbutazone overages at Del Mar in 2019. The investigator reported, “Baffert stated he thinks someone is intentionally giving [phenylbutazone] to his horses and mentioned that he would be offering a reward to help solve the case.”
During testimony, Baffert said, “Somebody made a mistake. If my vet gave it when he was supposed to, [the levels of medication] wouldn’t have been that high.” When Greenberg pressed Baffert on the explanation of tampering he gave to the CHRB investigator, the trainer responded, “I probably said it, but I wasn’t being serious about it.”
Greenberg asked if Baffert made the statement “in jest” to the CHRB investigator, and the trainer said, “I wasn’t making it in jest. I was just having a conversation. … At the time, that was my first instinct — maybe it was sabotage. We later found out it was a mistake.”
The concept of tampering or sabotage also came up in the Medina Spirit case, when Baffert went on the Dan Patrick Show soon after news of his positive test was revealed. Patrick asked if there was “sabotage in the industry” and Baffert answered, “I’ve never been a conspiracy theorist, but I’m starting to suspect — it’s happening to me on a big day. … It seems really strange now that — here’s a horse that didn’t get that specific drug. He was not treated with that. That’s mind-boggling right there that somebody had him contaminated somewhere. We just don’t know that. I hate to speculate, but we just don’t know.”
The idea that Medina Spirit was not treated with betamethasone was repeated by Baffert in multiple television interviews, which was another aspect Greenberg challenged, because Baffert later brought up the presence of betamethasone in Otomax, which he said was being used on Medina Spirit to treat a skin condition.
In his testimony Thursday, Baffert said at the time of those media appearances, it never crossed his mind that betamethasone would be in a topical ointment, even though he told Patrick “we checked to make sure nobody had any special creams” and “nobody that handled the horse had any creams or anything like that.”
During his testimony Thursday, Baffert contended that he said “treated” during the media interviews because he didn’t want to say “injected.” Baffert said he only found out Otomax contained betamethasone from his veterinarian, a day after the media interviews.
The NYRA hearing, which began Monday, is scheduled to end Friday with closing statements. Sherwood will then evaluate the case and make a recommendation to a panel appointed by NYRA President David O’Rourke, which will decide Baffert’s fate.
NYRA initially suspended Baffert from racing at its tracks in mid-May, but a federal judge cited the absence of a hearing and due process in ruling in July that NYRA’s suspension was unconstitutional. The ruling led NYRA to create procedures for hearings to address such cases.
Photo: Pat McDonogh/Courier Journal