NYRA-Baffert Hearing Concludes With Closing Arguments

With retired New York State Supreme Court Justice O. Peter Sherwood listening attentively, attorneys for the New York Racing Association and Bob Baffert presented closing summations Jan. 28 as the hearing in a suspension case initiated by NYRA came to an end.

NYRA seeks a recommendation from Sherwood that Baffert be suspended from entering horses at Saratoga Race Course, Belmont Park, and Aqueduct Racetrack. The association's attorney, Henry Greenberg—who spoke first and again in rebuttal summation—submitted that NYRA had proven Baffert has committed conduct detrimental to the best interests of racing, conduct detrimental to the health and safety of horses and jockeys, and conduct detrimental to NYRA's business operations. 

Specifically, Greenberg engaged in a recitation of six medication overages spanning from July 2019 to September 2020 that preceded the big one, a finding that Medina Spirit  tested positive for betamethasone after finishing first in the Kentucky Derby Presented by Woodford Reserve (G1). Baffert's testimony about those matters, he said, was a repeat of his "playbook" of excuses offered for his overages that Greenberg described as a "business model."

Greenberg discussed "an explosion of negative stories about the sport (and) about (Baffert)" following the news about Medina Spirit's drug positive in the Derby. Making matters worse, Greenberg argued, were Baffert's comments at a Churchill Downs press conference and in subsequent television interviews when Baffert "savaged the industry … He knew exactly what he was doing because he said the same things every time. He trashed the sport again and again and again and again … Great power endowed him with great responsibility ... but he took a wrecking ball to the industry."

DOWNEY: Baffert Testimony Runs Gamut in NYRA Case

Baffert's expert witnesses, Dr. Clara Fenger and Dr. Steven Barker, acknowledged at the hearing they had testified for trainers dozens of times in disciplinary hearings, and Fenger said she testified for Baffert in Arkansas in the Charlatan  -Gamine  cases and is actively working for Baffert on the Medina Spirit case. 

Greenberg said their standing "compared to Dr. (Pierre-Louis) Toutain" is not even close. Toutain is a world-renowned veterinary pharmacologist who, Greenberg noted, has authored or co-authored 500 peer reviewed articles that were cited a thousand times in the last year. Greenberg said Toutain is "not a professional witness and told you nothing but the facts about the performance-enhancing and masking propensities" of drugs found in the systems of Baffert's horses.

In contrast, Greenberg said, Fenger and Barker advocated that existing regulatory schemes are too strenuous.

DOWNEY: Toutain Offers Specialized Testimony at Baffert Hearing

Greenberg asked Sherwood to recommend a lengthy suspension. It appears the outside limit could be 240 days based on the testimony of opening witness Rick Goodell, a former assistant counsel for the New York State Gaming Commission and former chair of the Association of Racing Commissioners International's Regulatory Attorneys Committee. 

That could be offset by 58 days of suspension already served by Baffert before it was enjoined pending the five-day due process hearing that took place this week.

W. Craig Robertson III, on behalf of Baffert, argued that Baffert offered reasonable explanations for the medication overages and has served as a great ambassador for the sport. He told Sherwood that not only should Baffert be exonerated, but NYRA should apologize to the trainer for the 58 days he was suspended prior to the injunction.

Delving into a legal argument that will be briefed, Robertson argued out-of-state overage cases already adjudicated are inappropriate and unlawful to use as a basis for NYRA to exercise a common law right to bar persons from its grounds.

In a portion of the argument that may or may not not be considered tenable by the hearing officer, and which Greenberg said was designed for "another audience," Robertson questioned why the statement of charges wasn't introduced as an exhibit and claimed no witnesses discussed the charges; and criticized the fact that NYRA officials didn't testify.

On a stronger note, Roberson offered that there is "zero" evidence Baffert is hurting handle at NYRA tracks. A new handle record was set at the 2021 Saratoga summer meet, although a NYRA witness said, "We should have done better."

Robertson argued and Greenberg disputed that this case is a first, that Baffert has been singled out. It was acknowledged, however, that Rick Dutrow was in fact suspended for 10 years by New York officials. Robertson said he was allowed to enter hundreds of horses anyway; and Greenberg countered that was done while Dutrow's appeal was pending.

Robertson reminded Sherwood that Mike Smith and John Velazquez have no problem riding Baffert's horses and believe his stable is professionally run. 

DOWNEY: NYRA Concludes Case Against Baffert, Defense Opens

"This case is solely about the Kentucky Derby," Robertson said. "That is what caused them to act … But there is no rules violation (in Kentucky) … There is no Kentucky rule for betamethasone valerate (the cream)."

As to Baffert's comments to media in the aftermath of the Derby, Robertson said Baffert was merely a victim of human nature and that "of course" he was upset after the betamethasone positive. Baffert testified he ordered its use be stopped in his barn following Gamine's 2020 Longines Kentucky Oaks (G1) disqualification for the same substance.

"He couldn't believe it. He had ordered no more betamethasone in his stable," Robertson said. "He apologized for (his comments) a few days later. But that was not enough (for NYRA). Now it has been scientifically proven there was no violation (in the Derby)."

"Dr. Barker summed it up best when he said there is nothing here that matches the rhetoric that surrounds this case and the actions of NYRA. This is not doping," Robertson argued. "A man's livelihood is at stake. He has poured his heart and soul into the sport. He has done it the right way, with class and character … And that's the reason three years ago NYRA elected him to their Hall of Fame."

Greenberg said NYRA is not trying to end Baffert's livelihood, that the organization is seeking a suspension of his activities in New York. While Baffert is based on the West Coast and stables at Santa Anita Park and Del Mar, he generally sends horses to compete during the Belmont Festival of Racing that surrounds the running of the Belmont Stakes (G1) in June, and targets key races at Saratoga in the summer. 

Judge Shewood closed the hearing and said scheduling for briefs will be handled in a few days. The burden of proof on charges lies with NYRA, and the burden of proof for affirmative defenses lies with Baffert.

Once the case is briefed, Sherwood has a duty to issue a hearing report containing findings of fact, conclusions of law, and a recommended disposition. If a revocation or suspension of the right to access is found to be warranted, the report must state its duration.

Either party may file exceptions to the report with a panel appointed by NYRA's president within seven days unless the time is extended.

Within 10 days after the close of the exception period, unless extended, the panel is charged with issuing a final decision that includes a statement setting forth the facts which form the basis thereof. By regulation, the panel is given the discretion to adopt, modify, or reject any or all of the hearing officer's report including, but not limited to, the appropriate disposition of the proceeding.