Hearing Officer Recommends 2-Year NYRA Ban for Baffert

Hearing officer O. Peter Sherwood recommended April 27 that trainer Bob Baffert receive a two-year suspension from the New York Racing Association for repeated medication violations involving his horses in other jurisdictions.

The suspension—which would apply only to NYRA's three racetracks, Aqueduct Racetrack, Belmont Park, and Saratoga Race Course—must still be approved by a three-person NYRA panel. If approved, it would go into effect following the July 2 end of the 90-day suspension Baffert is serving from the Kentucky Horse Racing Commission following the failed post-race drug tests and the disqualification of Medina Spirit  from victory in the 2021 Kentucky Derby Presented by Woodford Reserve (G1) at Churchill Downs.

The panel members include Will Alempijevic, executive director of the New York Thoroughbred Horsemen's Association, Humberto Chavez of the New York Race Track Chaplaincy, and Saratoga-based attorney John J. Carusone Jr.

Baffert and his attorneys have 14 days to file an exception to the ruling, after which the panel will have 10 days to render a final decision on the matter.

Clark Brewster, one of Baffert's lawyers, announced there would be an appeal of Sherwood's decision and questioned the retired judge's impartiality.

"We will appeal until there is a decision by a true, neutral, detached judge," Brewster said via text.

During a late January hearing, NYRA charged the Hall of Fame trainer with engaging in conduct alleged to be detrimental to the best interests of racing, the health and safety of horses and jockeys, and NYRA's business operations. Sherwood sided with NYRA on all three charges.

"NYRA met its burden with respect to all three of the charges against Baffert," Sherwood wrote in a 54-page ruling. “NYRA maintains (and the record shows) that Baffert has engaged in a pattern and practice of unlawful conduct that has no parallel in the modern history of Thoroughbred racing ... Over a 14-month period, racing regulators in three states found that Baffert violated drug regulations in seven different races ... 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."

Sherwood went on to say that NYRA would be "risking the loss of public confidence" if it did not suspend Baffert.

"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. I conclude that NYRA has reasonably determined that he should be excluded from the racetracks for a lengthy period," Sherwood continued. "In NYRA's judgment, imposition of forceful action in response to these violations will serve to reassure racing fans of the integrity of the sport and NYRA's commitment to protect horses, jockeys, and the betting public. NYRA's actions will also reassure fans and bettors that the industry can and will police itself, take stern action when doping is found, and protect horses from mistreatment. 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.

"The evidence establishes that Baffert has engaged in conduct that is detrimental to the best interests of Thoroughbred racing in that he has harmed the reputation and integrity of the sport, as well as the public's perception of the sport's legitimacy. Cruel Intention , Eclair , Charlatan  , Gamine , Merneith , and Medina Spirit all had substances in their bloodstreams at prohibited levels on race day. These banned substances had the capacity to affect their performance."

The suspension, which bars Baffert from entering or stabling horses anywhere on NYRA grounds, matches the two-year private property suspension Baffert received last year from Churchill Downs Inc. from its racetracks following the post-race drug tests that revealed the Baffert-trained Medina Spirit had 21 picograms of the corticosteroid betamethasone in his system. The presence of betamethasone is prohibited in a horse's system on raceday in Kentucky.

"Notably, the Churchill Downs, a private enterprise similar to NYRA, has barred Baffert from its facilities for two years based principally on Baffert's use of prohibited drugs in Medina Spirit during the Kentucky Derby in 2021 and his 'increasingly extraordinary explanation' for the presence of banned drugs in horses he entered in races," Sherwood wrote. "Baffert has not established grounds for any shorter period of exclusion at the NYRA Racetracks. Accordingly, I recommend that the panel revoke Baffert's credentials for entering his horses in races at the racetracks and bar him from using stables at the racetracks for a period of two years, commencing when Baffert obtains a valid license. This recommendation notwithstanding, the panel may wish to consider giving Baffert credit for the 59 days he was excluded from the racetracks by NYRA in 2021."

Brewster vehemently disputed Sherwood's findings.

"Just for Bob they crafted and pronounced hearing rules," Brewster said. "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 (phenylbutazone) 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 with a reported dextrorphan positive in California in the filly Merneith in July 2020," he continued. "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 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. 

"NYRA (also) 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.  

"Lastly, NYRA charged that Gamine had a betamethasone positive in Kentucky," he added. "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 horses at least 14 days before a race. That rule was announced as effective Aug. 25, 2020, just eight 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 substances. All witnesses testified Bob was always respectful, polite, professional, responsive, and compliant."

The ruling brings full circle a process that dates back to May 17, 2021, when NYRA announced a temporary suspension of Baffert following the announcement that Baffert's Kentucky Derby winner Medina Spirit had failed a post-race drug test.

READ: Full Ruling from Hearing Officer O. Peter Sherwood  

Baffert went to New York federal court for relief and on July 14 he received a stay of the suspension when Federal District Court Judge Carol Bagley Amon ruled in his favor, finding that NYRA did not grant the Hall of Fame trainer due process before applying the ban. He had been suspended without a hearing. CDI's suspension, being contested by Baffert in court, was also issued without a hearing.

As per Amon's ruling, in September NYRA established rules and protocols for disciplinary hearings outside the realm of the New York State Gaming Commission to deal with individuals who violate rules and regulations. NYRA scheduled hearings for Baffert and trainer Marcus Vitali.

Baffert's hearing took place Jan. 24-28 before Sherwood, a retired New York Supreme Court Justice.

During the hearing, NYRA attorney Henry Greenberg called it "profoundly important" for the sport's equine athletes, jockeys, and fans, urging Sherwood to hand down a "lengthy" suspension for Baffert. He listed the damage to the sport's integrity through seven drug violations by Baffert-trained horses since July 2019 (though none occurred in New York), and spoke about how the only Triple Crown Baffert was responsible for during that period was destroying "three great stakes" in the Arkansas Derby (G1), Longines Kentucky Oaks (G1), and Kentucky Derby, a trio of 2020 and 2021 races in which Baffert horses failed post-race drug tests.

In response, Baffert attorney W. Craig Robertson III pointed out how NYRA inducted Baffert into its Walk of Fame at Saratoga in 2018. During the January sessions, he also said Baffert was not suspended for any of the drug violations by regulators, a comment made prior to Baffert receiving his 90-day suspension by the Kentucky Horse Racing Commission Feb. 27, and that he has never been charged with a violation in 30 years of racing in New York. He added that Baffert has already served nearly two months of the originally-issued NYRA suspension, that NYRA's desire to suspend him was fueled by the envy of NYRA board members who were waging a vendetta against him because their horses could not outrun his.

Although Baffert is based in California and runs primarily there, a lengthy suspension issued by NYRA could keep Baffert out of prestigious races in New York that have been regular targets for the trainer with shippers. Three times he has won the Belmont Stakes Presented by NYRA Bets (G1), twice with Triple Crown-winning horses. He is also a three-time winner of the Runhappy Travers Stakes (G1).

Last year after his original suspension from NYRA was lifted, he sent Gamine to Saratoga to win the Ketel One Ballerina Handicap (G1).