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Baffert takes the stand at NYRA hearing

Matt HegartyJan 27, 2022

Bob Baffert
Susie RaisherBob Baffert was on the witness stand for 3 1/2 hours at a hearing conducted by the New York Racing Association.

Bob Baffert, the embattled Hall of Fame trainer, took the stand on Thursday in a hearing called by the New York Racing Association and categorically denied that any of the medication positives underlying NYRA’s effort to ban him were attempts to gain an edge in a race.

Often speaking directly to the hearing officer appointed by NYRA sitting next to him, Baffert told his attorney during direct questioning that the six positives racked up in his barn during a 14-month period in 2019 and 2020 were the result of innocent mistakes, contamination, or regulatory over-reach. The attorney, Craig Robertson, stressed that Baffert did not receive any suspensions from the violations, while NYRA attorney Hank Greenberg hammered away at the frequency of the violations and the incongruity between Baffert’s vows to run a “tight ship” while continuing to run afoul of medication regulations.

NYRA served Baffert with a “statement of charges” last fall after adopting protocols to hold internal hearings for licensees participating at its tracks. The association is seeking to issue a ban of the trainer based on “conduct detrimental to racing,” citing the six medication violations and the controversy surrounding Medina Spirit, Baffert’s 2021 Kentucky Derby winner, who tested positive for the regulated corticosteroid betamethasone, an anti-inflammatory, after winning the race. The case has not yet been adjudicated.

NYRA has also based the charges on several inflammatory statements Baffert made during interviews after acknowledging Medina Spirit’s positive, and under direct questioning from Robertson and under cross-examination from Greenberg, Baffert expressed contrition for some of the statements he made. He said he was “upset” and filled with “raw emotion” at the time because he was convinced that the positive test could not have come about due to the actions of someone in his barn, citing a review of his veterinary records and interviews with his staff.

“I didn’t know what was happening, what was going on,” Baffert told Greenberg during cross examination. “I was like in a fog. I knew I was innocent. I knew that I didn’t inject that horse with betamethasone. I was adamant about it.”

During those interviews, Baffert had repeatedly invoked the term “cancel culture” to explain the uproar of criticism after the positive was announced. He said on Thursday that he regretted ever using the term.

“I shouldn’t have used the word ‘cancel ulture,’ I should have used ‘knee-jerk,’ that’s what I meant,” Baffert told Greenberg after the attorney pointed out multiple instances of the term in interview transcripts. “I just should not have said ‘cancel culture.’ That was a mistake.”

At the end of his testimony, Robertson asked Baffert, “If you had to do it all over again, would you have” agreed to the interviews.

“I would never do it again,” Baffert said.

But Baffert remained adamant that he should not face a suspension in the Derby case, contending that Medina Spirit’s positive was due to a skin ointment containing betamethasone, rather than from an injection of the drug, its usual route of administration. He was asked by Robertson if he knew the ointment, a product called Otomax, contained the drug, which is clearly listed on its packaging.

“I did not,” Baffert said.

Greenberg pointed out that a horse trained by Baffert, Gamine, had tested positive for the same drug after running third in the Kentucky Oaks in September of 2020. Baffert told Greenberg, as he has told media outlets, that he ordered his veterinarians to stop using betamethasone after that positive test was adjudicated, in which Gamine was disqualified and Baffert was issued a fine. Baffert has said that Gamine received an injection of the drug, but it was administered 18 days before the race, outside the 14-day stand-down period.

“Given the incidents that occurred before, wasn’t it imperative that you made absolutely sure that no one who worked for you, no one, would administer anything at the Kentucky Derby that was within a million miles of being problematic?” Greenberg asked.

“Yes,” said Baffert.

Then Greenberg began making several statements in the form of questions, calling the incident a “cataclysm for racing” that “cast a terrible cloud on the industry, isn’t that right?”

“If it was the injection, yes,” Baffert answered.

Greenberg continued to make the statements in an attempt to elicit a straight “yes” or “no” answer. Sherwood also told Baffert to answer yes or no.

“Okay, I’ll say yes,” Baffert said. “I understand where you’re coming from, it was the Kentucky Derby. It was horrible, horrible.”

All told, Baffert spent 3 1/2 hours testifying on Thursday. The brunt of the time was spent reviewing the circumstances surrounding the six positives, relitigating cases that have already been the subject of adjudications. NYRA has contended that the rash of cases demonstrate that Baffert has disregard for the rules of racing, and that his continued participation at their tracks threatens its business.

NYRA adopted the hearing protocols after a federal judge in New York, Carol Bagley Amon, ruled that a ban of Baffert issued by the association shortly after the Derby violated the trainer’s due-process rights. The judge has sanctioned the right for NYRA to hold the hearing in rulings issued as recently as Friday, but her latest ruling also said that Baffert would have an opportunity for judicial review at the state level based on the conduct of the hearing and any potential ban.

The hearing is set to wrap up on Friday morning with closing statements from both sides. The hearing officer will then issue a report – there is no timetable listed in the adopted protocols – which will be submitted to a review panel appointed by NYRA. That panel can use its “discretion to adopt, modify, or reject any or all of the hearing officer’s report,” according to the protocols NYRA adopted.

Prior to Baffert taking the stand, Robertson had called two witnesses to the stand who both contended that the violations Baffert has racked up over the past three years amounted in most cases to minor infractions involving therapeutic medications that are de rigueur in racing. The witnesses also said that Baffert’s explanations for the positives were reasonable.

The witnesses, Dr. Clara Fenger, a veterinarian who is the chairman of the North American Association of Racetrack Veterinarians, and Dr. Steven Barker, who is the former head of the state racing laboratory in Louisiana, also supported Baffert’s contention that two lidocaine positives in Arkansas in 2020 could have been the result of accidental contamination and that the levels detected would not have had a pharmacological impact, as the Arkansas Racing Commission ruled after Baffert appealed a suspension.

On cross-examination, one of NYRA’s attorneys, Kelly McNamee, pointed out to the witnesses that Baffert was indeed held liable for the positives, in that he was fined in all of the cases, including the Arkansas matter. She also attempted to raise concerns to the hearing officer about the impartiality of Fenger and Barker, who frequently provide testimony sympathetic to trainers in adjudications.

Barker, however, pointed out that he has provided testimony in “probably a thousand cases,” referencing his work at the state lab, and he said that he provided testimony in support of trainers in “maybe 10 percent” of all of his appearances. However, he also acknowledged that he has often been frustrated with the rules passed by commissions to regulate therapeutic drugs.

“This is not a perfect regulatory environment,” he said, while being cross-examined. “A lot of those are political decisions. They’re not pharmacological decisions.”

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