Baffert appeal on Kentucky suspension scheduled to be heard Monday

The Kentucky Horse Racing Commission on Monday is scheduled to begin what will likely be a multi-day hearing to consider an appeal by the Hall of Fame trainer Bob Baffert of the 90-day suspension he served earlier this year as a result of a positive from last year’s Kentucky Derby.

The hearing is scheduled to take place nearly two months after Baffert returned to training following the suspension, and over eight months after Medina Spirit, the Baffert horse who tested positive after winning the 2021 Derby, died of a suspected heart attack shortly after finishing a workout at Santa Anita Park.

Baffert was issued the 90-day suspension by Kentucky stewards in February, eight months after the racing commission notified the trainer that Medina Spirit had tested positive for betamethasone, a regulated corticosteroid, after his Derby win. The stewards’ adjudication of the case had been delayed for months due to efforts by Baffert’s lawyers to build a case that the positive result was not a violation of Kentucky’s existing rules.

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Baffert’s attorneys will attempt to make the same case in front of the full commission. Baffert has said that the horse tested positive due to the nearly daily application of a skin ointment, called Otomax, that was applied to Medina Spirit in the month leading up to the Derby to clear up a rash. The ointment contains betamethasone.

Prior to the stewards’ hearing in February, Baffert’s legal team had Medina Spirit’s split sample from the Derby tested at a lab at Cornell in New York in order to obtain evidence that the betamethasone came from the ointment, rather than from an injected administration of the drug. Betamethasone is most commonly used as an injectable to treat inflammation in joints, and its use is strictly regulated.

Baffert’s attorneys contend that Kentucky’s rules on betamethasone apply only to the injectable form of the drug, which is known as betamethasone acetate. The attorneys have further claimed that the testing of the split sample showed the presence of a different formulation, betamethasone valerate, which is the ingredient in the skin ointment.

Whether that will matter to the commission is unknown at this point. But lawyers for the commission have told judges that the state’s rules apply to any finding of the substance, and that the route of administration is moot.

Despite his appeal of the stewards’ decision and request for a stay, Baffert was required to serve the suspension before the appeal could be heard, first by order of the commission’s then executive-director, Marc Guilfoil, whose decision was shortly thereafter ratified by the full commission. Baffert’s attorneys then went to a state court in Kentucky to seek a stay, but the judge in the case allowed the suspension to go forward as well.

While Baffert cannot turn back time and recover the 90 days he has already sat out for the positive, a decision by the commission to reverse the stewards’ decision would reinstate Medina Spirit as the official winner of the Derby (and perhaps provide legal grounds for Baffert to seek restitution in civil court). As of now, the horse has been disqualified, even though the purse money has not yet been distributed to the second-place finisher, Mandaloun. A spokesperson for the KHRC said recently that the purse will not be ordered to be distributed until “all appeals are exhausted.”

Meanwhile, Baffert remains banned through the 2023 Kentucky Derby by Churchill Downs, a decision by the publicly traded company that Baffert’s lawyers initially challenged in court, only to withdraw it earlier this year. In addition, Baffert is presently banned at all tracks operated by the New York Racing Association through nearly the end of January, as a result of an internal hearing conducted by the association earlier this year. Although the hearing officer initially recommended a two-year ban, a panel that reviewed the recommendation reduced the penalty to one year and gave Baffert credit for the time that he had already been banned by NYRA.