NYRA schedules hearings for Baffert, Vitali under new protocols

The New York Racing Association said it has adopted protocols to conduct hearings against licensed racing individuals and has issued notices of hearings under the new rules to trainers Bob Baffert and Marcus Vitali.

Baffert, who had a ban by NYRA stayed earlier this year by a federal judge, has been charged by NYRA with “conduct detrimental to racing.” NYRA cites Baffert’s four positives for regulated medications in the year prior to the Kentucky Derby. The Baffert-trained Medina Spirit won the Kentucky Derby, but tested positive after the race for betamethasone, a regulated medication, in a case that has not yet been adjudicated.

The statement of charges against Baffert outlines substantially similar arguments that NYRA included in its legal filings justifying its now-stayed ban of the trainer, including Baffert’s initial public claims that Medina Spirit was never administered betamethasone. Three days after announcing the positive, however, Baffert backtracked, issuing a statement claiming the horse was administered a daily treatment of an ointment containing betamethasone to treat a skin condition in the month leading up to the Derby.

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Craig Robertson, the attorney representing Baffert in the NYRA case, said on Friday afternoon that he would ask the judge who issued the stay for an injunction that would “prevent this hearing from going forward.”

“The federal court in New York enjoined NYRA from enforcing its suspension of Mr. Baffert pending a conclusion of that suit,” Robertson said. “That suit has not been concluded. As such, this is an improper attempt by NYRA to circumvent the judge’s ruling. We will address it accordingly.”

The establishment of rules and protocols for hearings conducted by NYRA comes in the wake of multiple rulings by judges that NYRA must clear higher hurdles for the protection of due-process rights than private businesses. In her July 14 ruling staying NYRA’s ban of Baffert, for instance, Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York wrote that Baffert was “entitled” to a hearing before NYRA issued the ban.

“The laws and contracts that presently govern NYRA demonstrate that, as every other court to consider the issue has held, NYRA’s suspension of Baffert constitutes state action,” Amon wrote. “As NYRA has conceded in other cases, New York has so far insinuated itself into a position of interdependence with NYRA that NYRA’s actions are fairly attributable to the state.”

NYRA issued its ban on May 17, several days after Churchill Downs had an announced a ban of the trainer that was later extended to two years, running through the 2023 Kentucky Derby. Baffert has not challenged the ban issued by CDI, a publicly traded company with broader exclusionary powers than NYRA.

According to NYRA, the hearings will begin on Sept. 27 for Baffert and Sept. 30 for Vitali, a trainer with a checkered history who has been banned by private racetracks on multiple occasions. O. Peter Sherwood, a retired New York State Supreme Court Justice, will serve as the hearing officer for Baffert, and Robert Smith, a retired New York Court of Appeals judge, will serve as the hearing officer in the case for Vitali.

Under the rules established by NYRA, the hearing officer “shall not be bound by technical rules of evidence or procedure,” a common stipulation in arbitration proceedings, but “shall conduct the hearing in such order and manner as they deem appropriate to ascertain the substantial rights of the parties.” The rules state, “The respondent bears the burden of proof regarding all affirmative defenses.”

After the hearing has concluded, the hearing officer is required to issue a report, but no timetable is given under the rules. Respondents will have seven days after the report is released to challenge the report under the legal heading “exceptions,” but that time period can be extended.

The hearing report will then be reviewed by a panel appointed by NYRA’s president which will “have the discretion to adopt, modify, or reject any or all of the hearing officer’s report.” The panel will have 10 days to issue a decision, which “shall take effect immediately,” according to the rules.

The rules state that respondents will not be given an opportunity to appeal the decision “within NYRA,” but any decision by a private actor outside of the purview of government would be open to judicial review.

“NYRA has a responsibility to protect the integrity of the sport of thoroughbred racing,” said NYRA president and chief executive Dave O’Rourke, in a statement accompanying the announcements. “We are determined to ensure the actions taken in furtherance of that goal comport with the requirements of due process, which is what the hearing rules and procedures established by NYRA provide.”