Some Question, Some Praise CHRB Process in Justify Case

A day after a bombshell report in the New York Times that Justify failed a drug test after his victory in the 2018 Santa Anita Derby (G1), an industry participant, regulatory umbrella group, and former prominent regulator questioned the California Horse Racing Board's handling of the case.



The CHRB also saw some praise from its staff members and the connections of Justify on its decision not to move forward following the Santa Anita Derby drug test after its equine medical director, Dr. Rick Arthur, and executive director, Rick Baedeker, advised not to call a positive because they believed the post-race test's findings for scopolamine were triggered by environmental contamination. Arthur said the board unanimously approved that recommendation.

Mick Ruis, who owned and trained 2018 Santa Anita Derby runner-up Bolt d'Oro , said Sept. 12 he was considering legal options, noting Bolt d'Oro not only would have picked up a bigger check that day if Justify had been disqualified, but his colt would have had a grade 1 win at 3 to go along with his two grade 1 wins at 2, which would have increased his value going to stud.

"How can the regulatory board support a decision that goes against its own rules that called for a disqualification and loss of purse?" Ruis said, referencing the report that at the time of the infraction, California called for disqualification of horses who test positive for scopolamine. "Do they even have the authority to do that? If so, that process should be changed."

On the other hand, regulators have been more willing to consider the possibilities of contamination before moving forward with cases. Even though Justify tested for scopolamine at a level five times the residue limit put in place by the International Federation of Horseracing Authorities and higher than the limit put in place by the CHRB, Arthur said there were a number of factors that pointed to this case being contamination.

Scopolamine: Substance in Middle of Justify Scandal

One other horse surpassed the scopolamine threshold, and a number of others showed some level of the substance in their systems after racing at Santa Anita Park that weekend, April 6-8, 2018. Arthur also noted that when the positive is associated with jimson weed contamination, as opposed to an administration of Buscopan, the lab indicates positives for both scopolamine and atropine, which was the case with Justify and five other horses that weekend. Finally, he noted that the level of scopolamine that showed up in Justify's blood test was much lower than what came back in his urine test.

"Scopolamine is a toxin in jimson weed. It comes along with atropine, which is what we saw in a number of these cases as well," Arthur said. "Buscopan can be easily differentiated in the laboratory (from jimson wood contamination) as only scopolamine or atropine is detected—not both. The reality of it is that six of these horses have both scopolamine and atropine in their systems. So they have two different plant alkaloids that are typically found together with jimson weed poisoning."

Arthur said the blood tests also were a factor in him recommending to the commission that a positive not be called. 

"Even though the level was relatively high in urine, the blood level was actually quite low," Arthur said. "It basically tells me that anybody that would make a professional opinion based on urine levels should be ashamed of themselves."

Still, the New York Times story's suggestion that the board may have been playing favorites rang true with Ruis, who believes if his horse had come back with the same type of positive, the CHRB would have disqualified him. Ruis hopes the scandal leads to improvements in the sport, starting with having regulatory boards members that do not have direct connections to the sport to reduce favoritism or perception of favoritism. Those direct connections to racing by board members also were reported in the New York Times story. 

"People have said this (story) is awful for the sport, but I think it's exactly what we need in racing right now," Ruis said, noting potential owners believe such favoritism is occurring. "How can we get owners into the sport when there are perceptions that owners and trainers are cheating and new owners believe they won't be able to compete? And then on top of that, the regulatory board is not treating everyone fairly. It's one-sided."

According to the New York Times, the CHRB met behind closed doors in executive session in making its decision. While acknowledging it may not know all of the details in the case, The Association of Racing Commissioners International, the umbrella regulatory group that crafts model rules it then encourages its state members to adopt, questioned the practice of making such decisions behind closed doors. 

"It is incumbent on the CHRB to release to the public as much information about why the recommended penalty mitigation was justified in order to lay to rest questions concerning this matter and to reinforce public confidence in its actions," the ARCI said in a release.

The CHRB left the ARCI this year, citing concerns the umbrella group was not acting quickly enough on needed reforms it was putting in place following a rash of catastrophic breakdowns at Santa Anita.

The CHRB's approach also was questioned by Joe Gorajec, the former executive director of the Indiana Horse Racing Commission who also once served as chairman of the ARCI. He did acknowledge he's not well-versed on all the CHRB's regulations, statutes, and protocols before offering his assessment.

"It appears that this was handled differently either because of the trainer involved or the high-profile nature of the horse and the timing of the Triple Crown races. I'm not saying that's what they did, but that's the appearance," Gorajec said. "Regulators have a duty; this isn't a country club they're running. They have a public trust, and the public is only going to trust them if they act in a manner that's fair, consistent, and subject to public scrutiny. What the CHRB did may be fair, but it's not consistent and certainly wasn't open to public scrutiny."

Arthur noted that while some states task stewards with both investigating a drug positive found by a lab and then making a decision on sanctions, California first has investigators review any case following a lab finding of a positive. The case put together by those investigators is then presented to the stewards either by a state deputy attorney general, general counsel for the CHRB, or the investigators themselves. At that point, the stewards issue a decision the board can either accept or reject.

That said, the CHRB did not take that approach in this case, Arthur said, because the equine medical director (Arthur) and executive director, Baedeker, both recommended that the board not move forward with the case because of the likelihood that the positive was a result of contamination. Arthur said CHRB rules allow for such an intervention, and after the recommendations, the board unanimously voted to not move forward with the case.

Arthur said this isn't the first time he and Baedeker have recommended not to move forward because they attributed lab findings to contamination.

"I think the board made the right decision. I think rather than being excoriated by people in the industry, they should be praised for making a courageous decision," Arthur said. "The easiest thing for a board to do is to prosecute somebody unfairly. The easy decision would have been to prosecute this case, and I think it would have been grossly unfair to everybody involved."

In recent years, horsemen's groups have pushed regulators to consider the possibility of contamination in making their decisions. Arthur said the CHRB has made that adjustment. It hasn't pursued a scopolamine case since 2007.

"I think the whole approach to environmental contamination has evolved, even at the IFHA," Arthur said. "It's changed. Part of our problem is that with improved drug testing, you can find things at levels you previously couldn't. So you have to put some guidelines in there."

The connections of Justify praised the CHRB's approach to the case and noted they were not involved in the CHRB's decisions. Hall of Fame trainer Bob Baffert said Thursday he'd never administered scopolamine to Justify.

"I've never administered that drug or had it administered to one of my horses," Baffert said. "I wouldn't even know how it would come; I wouldn't know what form it would come in."

Baffert went on to note Justify was under heavy scrutiny as the favorite in his Triple Crown races and was tested before and after the Santa Anita Derby without issue. Baffert's attorney, Craig Robertson III, said the CHRB made the right decision.

"Given all of the foregoing facts, I was confident that Mr. Baffert would ultimately prevail if the CHRB pursued the matter," Robertson said in a statement Thursday. "This left the CHRB with two choices: Either pursue a frivolous case that had no merit at great taxpayer expense, or exercise reason and common sense and decide to take no further action. The CHRB made a wise decision that should be commended, instead of attacked. … The CHRB did right by all parties, including the industry."

Gorajec, who also was quoted in the New York Times report, said the story raises real concerns when it points out that chairman Chuck Winner owns an interest in horses trained by Baffert, and two other board members employ trainers or jockeys they regulate. Gorajec said he understands any public concern about how the lab finding was handled.

"There are a couple of issues at play. One issue is, of course, the appearance of a conflict in regard to board members and the people that they regulate," Gorajec said. "When you overlay that with the fact that it appears—I emphasize appears—that they didn't follow what had been their standard protocols, when you consider the fact that the concentration was well in excess of what would typically trigger a positive."

Gorajec said if this had occurred under his watch in Indiana, a positive would have been called and made public, most likely some time after the split sample results had been returned. He noted that at that point, it could be determined if contamination occurred.

"You'd have a full airing of the facts," Gorajec said. "That full airing would include any investigative reports, any of the information the trainer could testify to. … That would be weighed, and a decision would be rendered. 

"If it had been done in that fashion, it would not have been done away from the public eye, and regardless of the outcome, even though there could be some criticism of the final decision, the public and the regulated (participants) would have been satisfied that there was an open and full airing of the facts, regardless of what decision was finally arrived at."

The CHRB said Thursday morning it planned to issue a release on its handling of the case, but as of 9 p.m. ET, that release had not been sent to BloodHorse or posted on the CHRB website. BloodHorse contacted the California Governor's office Thursday but did not get a reaction to the story.

The New York Times story also questioned the timing of the CHRB decision. Justify entered the Santa Anita Derby with no qualifying points for the Kentucky Derby Presented by Woodford Reserve (G1) and needed a top finish in the Santa Anita Derby to qualify for the Run for the Roses.

Both Arthur and Gorajec agreed there would not have been a scenario where the CHRB could have disqualified Justify from his Santa Anita Derby win ahead of the Kentucky Derby. First of all, trainers have the right to a split sample, which takes time. Then, after the results come back of the split sample, even if the regulator had at that point called a positive, there would have been an appeal they believe would have allowed Justify to run until the case was resolved.

Arthur said in California, it's a long process to call a positive. He said in the most recent scopolamine case the CHRB pursued, the horse wasn't disqualified until 20 months after the infraction.

"Any idea that this case could have been expedited and Justify made ineligible to run in the (Kentucky) Derby is simply nonsense," Arthur said. "You have the split sample, then a hearing, cases can be delayed—we do have due process. We bend over backwards to give trainers every opportunity to defend themselves."

Churchill Downs and Maryland Jockey Club, which host the Kentucky Derby and Preakness Stakes (G1), each issued statements Thursday noting Justify had passed drug tests before or after their races. Churchill Downs racetrack president Kevin Flanery said they were unaware of any issue with Justify's Santa Anita Derby post-race test.

"Until media reports surfaced Wednesday night, neither Churchill Downs nor the Kentucky Horse Racing Commission had knowledge of any potential positive tests that may have emanated from California in advance of the 2018 Kentucky Derby," Flanery said. "We do know that all pre- and post-race tests for 2018 Kentucky Derby participants came back clean, including Justify. 

"In advance of our race each year, the Kentucky Horse Racing Commission conducts pre-race out-of-competition testing for every Kentucky Derby starter, and all starters' results were clean. After the race, the top finishers are tested for a myriad of banned substances, and the results for all were clean."

Maryland Jockey Club issued a similar statement about the Preakness runners.

"Justify, as with every horse who raced in the 2018 Preakness Stakes at Pimlico Race Course in Baltimore, Md., was subjected to pre-race drug testing by the Maryland Racing Commission," the statement said. "Justify, as the winner of the 143rd Preakness, along with several other horses who competed, also received extensive post-race testing by that same body. The Maryland Jockey Club was informed that all of those tests came back negative for any illicit substance or for the overages of any prohibited medication."