NYRA Hearing Officer Recommends Two-Year Ban For Baffert - Horse Racing News | Paulick Report

NYRA Hearing Officer Recommends Two-Year Ban For Baffert

Trainer Bob Baffert and 2018 Horse of the Year Justify

After considering voluminous evidence and hours of testimony presented at a week-long hearing in late January, retired Justice O. Peter Sherwood has issued a report recommending Hall of Fame trainer Bob Baffert be banned from New York Racing Association tracks for two years.

The 54-page report was released to media on April 27 and will now head to a three-member panel in accordance with the hearing rules and procedures outlined by the racing association prior to the beginning of the process. Sherwood found that NYRA had met its burden of proof with respect to its three charges against Baffert. The racetrack association claimed Baffert had engaged in conduct detrimental to the best interests of racing, the health and safety of horses and riders, and NYRA's business operations.

Sherwood's report will be considered by a panel that includes attorney John J. Carusone, Jr., New York Thoroughbred Horsemen's Association executive director William Alempijevic, and New York Race Track Chaplaincy of America leader Rev. Humberto Chavez. The panel will consider the report and recommendations, as well as any exceptions from Baffert's team, and then has the ability to adopt, reject, or modify any part of the report. The panel's review is not to exceed ten days, after which it will issue a final decision and statement. That decision is not appealable.

In the meantime, Baffert's legal team will have seven days to file exceptions to particular aspects of the report, including its general suitability, findings of fact, and conclusions. They may also present alternate findings of fact, conclusions, or disposition. They may also request an extension to that seven-day timeframe.

Read coverage of the January hearing before Sherwood here, here, here, and here.

In his report, Sherwood agreed with NYRA that in 14 months, Baffert was found to have violated drug regulations in seven races and in three states and that “NYRA also proved that each time Baffert was charged with a violation he provided an implausible excuse, and blamed others for conduct that he, as the trainer, was responsible for as a matter of law.”

“NYRA has reasonably concluded that it will not condone Baffert's reckless practices, outrageous behavior and substance violations, each of which compromises the integrity of the sport,” wrote Sherwood. “I conclude that NYRA has reasonably determined that he should be excluded from the Racetracks for a lengthy period.

“In NYRA's reasonable judgment, a failure to suspend Baffert could result in public scandal and ultimately a decrease in spectatorship, loss of revenues to the state and NYRA's racetracks and even a decline of Thoroughbred racing as a sport.  I find that NYRA need not continue to suffer Baffert's defaults and to bear the risk of loss of public confidence.”

He also found, based on testimony that all the horses in Baffert's violation history for those 14 months — including Medina Spirit — had substances on board that were at prohibited levels and “had the capacity to affect their performance.”

Sherwood did not find in favor of Baffert's legal arguments, which included that NYRA lacked jurisdiction in this matter because the drug violations they cited took place outside of New York, that he was not provided due process in NYRA's attempt to ban him, that NYRA's action is an action on his state-issued license, among other claims.

He also addressed the skepticism by Baffert and others that the NYRA hearing process was created only after a federal judge ruled that NYRA could not exclude him or any other trainer without due process.

“It is undisputed that NYRA's Hearing Rules and Procedures were promulgated to conform to Judge Amon's decision holding that Baffert was entitled to a pre-deprivation due process hearing and the ASOC post-dates promulgation of these procedures,” wrote Sherwood. “However, providing notice of such procedures is not an element of due process … Rather, due process requires only fair notice of prohibited conduct.”

If the panel upholds Sherwood's findings and suggested ban on entries and stalls, the result will be a private property ban from NYRA facilities. This is independent of the 90-day suspension Baffert is currently serving for the betamethasone overage from Medina Spirit in last year's Kentucky Derby, which is an action by the state racing commission in Kentucky on the trainer's license and which has been reciprocated in other racing states. The NYRA decision is akin to Churchill Downs' choice to exclude him from the facility on the basis of private property rights, and runs for the same time length of time.

Read a full copy of the report here and see the NYRA hearing rules and procedures here.

Clark Brewster, one of the attorneys representing Baffert and Medina Spirit's owner, Amr Zedan, issued the following statement on the report:

“Despite the fact that Bob has never had a single medication violation in New York, we expected this interim recommendation to the panel, which is not NYRA's final decision. We will contest this recommendation until we ultimately find a neutral, detached decision-maker that doesn't rubber stamp the NYRA lawyers' demands.

“NYRA hailed Bob to a hearing despite the fact that he had never had a medication issue in the 30 years he raced in New York. Initially NYRA announced a suspension of Bob without any notice or hearing. A federal judge vacated the suspension and awarded attorney fees against NYRA in excess of $100,000. NYRA then decided to charge Bob and conduct their own in-house hearing. Unprecedented in the history of NYRA. So unprecedented that there were no rules for such a hearing. Just for Bob they crafted and pronounced hearing rules. Not the NYRA Board – just a few members under the guise of the safety committee. The new rules provided they could select their own hearing officer. They did – a former judge who openly admitted he knew very little about horse racing. On the third day of the hearing he asked the witness to tell him what a paddock was.

“The charge against Bob consisted of two Bute overages in July of 2019 at Del Mar–the overages occurred within 30 days after California changed the Bute threshold from 1,000 picograms to 300. Both overages occurred in a matter of days and Bob had no further overages. Next, NYRA charged Bob had a reported Dextrorphan in California in the filly Merneith in July 2020. Dextrorphan is found as an ingredient in many human cough suppressants and is recognized as likely to come from human contamination. Shortly after the Merneith positive the ARCI (Association of Racing Commissioners International) and the Kentucky Horse Racing Commission issued bulletins saying that testing for Dextrorphan is not scientifically reliable and the positives in most all jurisdictions were dismissed. 

“Last, NYRA charged Bob with two lidocaine overages in Arkansas. Lidocaine is a permitted controlled therapeutic medication and it is expressly allowed at threshold levels in a horse on race day. The Arkansas Racing Commission found the reported positives in Charlatan and Gamine to be unreliable due to the reporting lab (Truesdail) having lost accreditation and also due to the complete breach of the custody of the post-race samples. Also, other horses that raced against Bob that day in Arkansas had reported screened lidocaine but the lab did not disclose or confirm those.  Last, NYRA charged that Gamine had a Betamethasone positive in Kentucky. That was true but the rule relied upon in Kentucky provided for a 14-day stand down or (no use) of Betamethasone as a joint injectable in horse at least 14 days before a race. That rule was announced as effective  August 25, 2020 just 8 days before the race. Gamine had been treated by her vet 18 days before the race and a 27 picogram positive was reported. Bob paid the fine and did not contest it. Interestingly it was Bob's first medication positive in Kentucky in his life. He was rewarded by getting fined three times more than any other trainer having Betamethasone positives in Kentucky comparably for the proceeding five years.   

“NYRA had no charges against Bob alleged in New York. NYRA made no claims that Bob used banned or prohibited substance. All witnesses testified Bob was always respectful, polite, professional, responsive and compliant.”

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