NYRA's Request to Strike Baffert's Affidavit Denied

New York district court Judge Carol Bagley Amon turned down a July 8 request by attorneys representing the New York Racing Association to strike from the record a 44-page affidavit filed July 7 on behalf of Bob Baffert in his civil suit over a temporary suspension blocking the Hall of Fame trainer from entering horses at NYRA's three racetracks.

During a telephone conference, Henry Greenberg, an attorney for NYRA, called the affidavit "classic sandbagging" and "trial by ambush" since it left NYRA little time to dispute the information in it in advance of a July 12 hearing before Amon in the U.S. District Court Eastern District of New York courtroom in Brooklyn, N.Y.

"When we saw the plaintiff's affidavit we were shocked and disturbed because frankly it was the most abusive use of reply submission I have ever seen," Greenberg said. "Seeing a detailed, factual affidavit doing what should have been done in the primary submission being done in reply is, for lack of better wording, classic sandbagging."

Amon, however, ruled in favor of Baffert, whose attorney, William Craig Robertson III, said he was taken aback by Greenberg's comments.

"We addressed specific points where (NYRA) alleged we had not met our burden of response and that is exactly what we are allowed to do in our reply," Robertson said. "We addressed the importance of New York racing to Mr. Baffert and addressed specifics they claimed we were missing."

In particular, Greenberg questioned paragraphs in the affidavit claiming that owners have removed horses from Baffert's care due to the temporary suspension so they would have the option to run at either Saratoga Race Course or Belmont Park, two of NYRA's three racetracks, with different trainers. 

Though Greenberg questioned the source of those claims, Robertson pointed out how the affidavit referenced media reports in Daily Racing Form and BloodHorse quoting WinStar Farm president, CEO, and racing manager Elliott Walden that NYRA's ban on entries from Baffert played a role in sending Country Grammer  and Life Is Good  to New York-based trainer Todd Pletcher.

When asked by Amon, Robertson said Baffert would testify that he was told by Walden that the ban played a role in the decision to move those horses.

In response to another passage in the affidavit listing unspecified owners who removed horses from Baffert's care due to the NYRA ban, Amon gave Robertson until noon July 9 to submit the names of the horses and owners.

The original intent of the conference was to determine whether witnesses or just attorneys would speak at Monday's hearing. Amon did not issue a ruling on that, though during the call she said it could be "wise" for Baffert to appear Monday and testify.

Calls to Robertson about whether Baffert would indeed testify were not immediately returned, though in a July 7 letter to Amon he wrote: "The parties have agreed to limit the July 12, 2021, hearing to attorney argument, as opposed to presenting live witnesses, and to rely on the evidence submitted along with their respective briefing. If, however, the Court prefers an evidentiary hearing with witnesses, we will be pleased to present such testimony."

NYRA announced May 17 a temporary suspension of Baffert from entering horses in races and occupying stall space at its three racetracks in the aftermath of post-race testing that found the corticosteroid betamethasone in the system of Baffert's May 1 Kentucky Derby Presented by Woodford Reserve (G1) winner Medina Spirit . 

In response, Baffert sued NYRA for improperly suspending him allegedly without legal authority and without any notice or opportunity to be heard prior to action being taken, according to court documents filed June 14 with the U.S. District Court Eastern District of New York.

In Baffert's suit, it was claimed that "NYRA does not have the legal authority to suspend Baffert—that rests solely with the (New York State) Gaming Commission as the entity that issued his occupational license—a license that affords Baffert a property interest under state law sufficient to invoke due process protections.

"Despite this fact, by purporting to summarily and indefinitely suspend Baffert from all NYRA tracks, NYRA has essentially barred Baffert from exercising his professional and state-issued trainer's license anywhere in the State of New York. Additionally, NYRA has purported to suspend Baffert and the use of his license without any notice or opportunity to be heard in violation of due process. Lastly, by connecting Baffert's 'suspension' to the Kentucky investigation, which is likely to go on for years, NYRA has correspondingly banned Baffert from participating in New York racing for several years."

In announcing Baffert's suspension, NYRA president and CEO David O'Rourke said in a statement, "In order to maintain a successful Thoroughbred racing industry in New York, NYRA must protect the integrity of the sport for our fans, the betting public, and racing participants. That responsibility demands the action taken today in the best interests of Thoroughbred racing."