Some Six Months After Derby, Medina Spirit Case Stalls

As Medina Spirit  prepares for a start in the Longines Breeders' Cup Classic (G1), the biggest win of his career is still very much up in the air thanks to a regulatory process that has stalled after his failed post-race drug test following a first-place finish in the May 1 Kentucky Derby Presented by Woodford Reserve (G1). 

For those familiar with the state-to-state regulatory process that oversees the sport, a prolonged case seemed likely from the start after the failed test. That said, the extended amount of time between the infraction and even the initial stewards' hearing has been slow—even by racing's current snail's-pace standards. Nov. 1 will mark six months since the race.

The attorney defending Medina Spirit's owner said in such cases it's important ahead of the stewards' hearing to gather evidence and information that could clear the client or lower sanctions. On the other side of that equation are concerns that the long time required to resolve such cases is negatively impacting the sport.

For comparison, in the only other instance of a Derby winner failing a post-race drug test, Dancer's Image was disqualified three days after the race. He tested positive for phenylbutazone after the 1968 Derby.

That was a different time though, when they didn't even collect split samples that could be used to confirm or refute an initial lab finding. Beyond that, the three-day stewards' hearing actually came after the announcement of the disqualification.

Dancer's Image's owner Peter Fuller appealed the DQ at the regulatory level and in courts for years. While at one point a circuit court judge actually ruled in Fuller's favor, the racing commission ultimately won the case on appeal, ending a process that took more than four years.

Even compared with that lengthy process, the Medina Spirit case is off to even a slower start. As of Oct. 27, Kentucky stewards had still not conducted a hearing on Medina Spirit, who tested positive for betamethasone after the Derby.

After the race, a split sample—now standard practice—confirmed the post-race finding. But attorneys for Medina Spirit's connections, owner Zedan Racing Stables (Amr bin Fareed bin Mohammed bin Zedan) and trainer Bob Baffert, are pursuing further testing they believe could provide exculpatory or mitigating evidence. 

A Kentucky court has backed this pursuit, which has seen a sample sent to New York to see if a lab there can find substances besides betamethasone. Such a finding could support the connections' contention that the failed drug test was caused by a topical application rather than an injection of the corticosteroid. A stewards' hearing would then follow but at this point things have stalled at that New York lab, the New York Equine Drug Testing and Research Laboratory. 

On Sept. 24 the lab's director, Dr. George Maylin, said they were awaiting "necessary metabolite synthesis information."

Attorney Clark Brewster, representing Zedan Racing Stables, said in mounting a defense of such charges it's important to collect all available information and evidence ahead of the stewards' hearing. He noted that even if the stewards ultimately determine a violation occurred in a case, they are tasked with assigning sanctions and are asked to consider mitigating circumstances in making those decisions. 

"The real issue is the vast majority of trainers who have positives, have those positives for overages of therapeutic medication," Brewster said. "There are thresholds in place but sometimes there are reasons why a horse has an overage. The rules provide for mitigation and it's important the stewards hear the circumstances."

Mary Scollay, executive director and COO of the industry's Racing Medication and Testing Consortium and former equine medical director for the Kentucky Horse Racing Commission, said such delays are problematic for the sport.

"There are plenty of industry concerns. There are other people and other horses that are affected by the outcome of the race, whether it's purse money, or a horse that was claimed, or a horse losing a condition because it gets moved up," Scollay said. "Sometimes there's black type involved and somebody wants to send a horse to the breeding shed or put a filly through a sale. So there can be all sorts of widespread ramifications for delays in any case being heard."

While the Medina Spirit case has made headlines within and beyond the sport, there are other recent examples of cases taking an extended time to proceed. Some of those delays can be attributed to the added challenges in scheduling meetings during the COVID-19 pandemic, but it's clear that many recent cases are dragging for reasons beyond those challenges.

One such case in Kentucky saw Steve Asmussen fined $500 nearly a year after a horse he trained failed a post-race test. Based on documents obtained by BloodHorse through an open records request, that case also saw months pass by before the stewards' hearing was conducted.

In the Asmussen case, Saffa's Day , a horse co-owned by Brewster, failed a post-race drug test after he finished first in a maiden race Oct. 11, 2020, at Keeneland. A stewards' ruling against Asmussen wasn't issued until Sept. 30, 2021.

Beyond that, as of Oct. 27 the ruling against Asmussen has not been posted on the KHRC website—as is standard by the KHRC for such sanctions. The ruling was noted in a packet of information prepared for the Oct. 26 KHRC meeting chief state steward Barbara Borden.

Putting aside the extended time before the stewards' ruling and the public reporting falling short, the case would appear to be a fairly standard medication violation. After finishing first in a maiden race in the fall of 2020, Saffa's Day tested positive for the anti-inflammatory corticosteroid dexamethasone—considered a low-level violation based on industry standards.

On the Association of Racing Commissioners Uniform Classifications Guidelines dexamethasone is considered a Class 4 substance (second-lowest of concern of five classes) and calls for a Class C penalty (second-least harshest). This penalty class does not call for a suspension for a first offense although it does call for disqualification of the horse.

On Oct. 21 Industrial Labs in Wheat Ridge, Colo. (the KHRC's official lab at the time) called the positive, finding a level of 35.1 picograms per milliliter. Split sample testing was conducted at the Texas A&M Veterinary Medical Diagnostic Laboratory and on Dec. 7 that lab confirmed the initial test, finding a level of 39.8 picograms per milliliter. 

Even with both tests in-hand, a hearing on Asmussen would not follow before year's end. As for the owners, the case had an interesting twist. 

Those owners, Brewster and L and N Racing, sent an email Jan. 12 to chief steward Borden expressing a desire to waive any further rights to contest the alleged medication positive and thus have their horse promptly restored to maiden status. Based on emails obtained in the open records request, Borden granted that request Jan. 14 and forwarded Brewster notice of the disqualification to last and purse redistribution. Saffa's Day forfeited $37,800.

At the same time, Borden informed Equibase of the decision and Saffa's Day again was considered a maiden. Saffa's Day finished unplaced in a pair of stakes races to close out 2020, then soon after the decision—with his maiden status restored—the son of Carpe Diem   won an $82,000 maiden race Jan. 22 at Oaklawn Park—earning his owners a $49,200 purse.

While the owners' case was resolved in early January, Asmussen initially had a stewards' hearing scheduled a few weeks later. But his case took much longer. On Jan. 15, one day after Borden informed the owners of the DQ of Saffa's Day, Brewster, representing Asmussen, informed Borden that more time would be needed to acquire all the information involved in the case. 

"To date we have yet to receive any of the documents previously requested," an associate of Brewster said in a Jan. 15 email to Borden. "Our office cannot adequately prepare for the stewards' hearing nor meet with our experts until those documents have been produced. Bearing that in mind, the stewards' hearing scheduled for Jan. 27 is too ambitious. 

"I'm requesting a continuance of the hearing so that we may have ample time to prepare."

A video conference would be scheduled for Asmussen before the stewards April 22. Based on records, it's unclear if that meeting occurred. KHRC executive director Marc Guilfoil declined to talk about the Medina Spirit case because the investigation is ongoing. With Brewster involved in both cases, Guilfoil also declined to talk about the Asmussen case.

Whether that April stewards' hearing occurred or not, the stewards' ruling was not issued until Sept. 30.

In terms of timing in such cases, Scollay said it's her experience that most of the time the stewards are prepared to move forward. Still, those stewards typically grant requests for more time. While expediency is a concern, the stewards also know that if they push too hard to speed things up, the commission runs the risk of running afoul of due process laws.

Brewster said time often is needed to ensure everyone knows exactly what happened in a case. As stewards are able to consider mitigating circumstances, he said it's important to know things such as if the positive could be linked to an oral application as opposed to an injection, or if the horse possibly didn't clear the medication from its system as fast as suggested would be safe in the guidance.

Beyond that, Brewster said he has seen some cases drag on because stewards have been reluctant to make decisions.

"They want to consider mitigating circumstances, but there's a lot of pressure on everybody in those positions to throw down the hammer these days," Brewster said. "There's such a fear about the reaction to their decisions if they're viewed as too light; but all of the facts need to be considered. When you're talking about the minute levels of testing that we have, there almost always are mitigating circumstances that need to be considered."

For now Zedan Racing Stables, Baffert, the stewards, KHRC, and the racing public await the resolution of the case being considered—at some point.