Baffert waits while lawyers argue in his federal case

Louisville, Ky.

What was intended to be a four-hour hearing with Bob Baffert as the star witness turned into a session of lawyering that will spill into at least one more day of questions and answers and arguments and, finally, testimony from Baffert himself.

“I feel we have gotten far afield of the issues that the court has to decide,” federal judge Rebecca Grady Jennings said before she called on Baffert, Churchill Downs Inc. and the nine attorneys on their legal teams to return to the U.S. District Courthouse on Friday at 10:30 a.m. EST.

Baffert, who was in the courtroom Thursday afternoon along with his wife Jill and son Bode, was expected to lead off day 2 in his federal case against CDI. This hearing will determine whether Baffert wins a preliminary injunction that would make him eligible for Kentucky Derby 2023 and restore his ability to race horses at Churchill-owned tracks. CDI wants Baffert to serve the rest of his two-year suspension for the late Medina Spirit’s failed drug test after a first-place finish in the 2021 Derby.

Clark Brewster, Baffert’s lead attorney, built much of the Hall of Fame trainer’s case on his belief that CDI boss Bill Carstanjen acted unilaterally to mete out punishment without so much as an interview or a hearing.

“The decision made by William Carstanjen was a matter of might, not a matter of right,” Brewster said. “The suspension came not with a written notice. It came in a press release. … We made numerous efforts to meet with them. We were rebuffed. Not one response. Never.”

Brewster’s associate Joseph De Angelis went on to argue that even though Churchill is a private company, it should have provided Baffert with due process because it “was a state actor … clothed with the authorities and the immunities of the state.” Later he said, “The aroma of the state is so pungent, this cannot be deemed a private activity.”

Tom Dupree, a Washington D.C. lawyer representing CDI, responded to that later by saying “Churchill Downs is not the government. We are a private corporation. Corporations don’t become agents of the state just because they are licensed. … If close regulation makes you the government, that would seriously jeopardize free enterprise.”

Dupree, one of six attorneys representing CDI, Carstanjen and board chairman Alex Rankin, opened his argument midway through the hearing by declaring, “We are here because of the conduct of Bob Baffert, who broke the rules and refuses to accept his misconduct.”

Dupree also said, “It’s appropriate we are here today on Groundhog Day.”

He was right. A lot of the arguments heard from both sides were the same as the ones made the past 1 1/2 years in other courtrooms as well as in hearings conducted by the Kentucky Horse Racing Commission.

Brewster reset the argument over Medina Spirit’s drug positive, insisting again that the ointment version of betamethasone was legal based on rule changes approved in August 2020 by the KHRC. This time he added new statements made by Carstanjen in a deposition last Friday that cast the Kentucky rules in shades of gray.

Baffert adhered to KHRC guidelines to give Medina Spirit betamethasone no less than two weeks before the Derby, Brewster said, adding that the stand-down time as presented in commission documents should have held sway over the level of detection in a test taken after those 14 days ran their course.

“It would be a massive loss to allow the suspension to continue,” Brewster said, “when we all know it’s based on misunderstood premises.”

Jeff Moad, a Louisville attorney working for the other side, begged to differ.

“There is no tolerance at the level of detection,” he said, adding the excerpts of Carstanjen were taken out of context.

Moad questioned CDI equine medical director Dr. William Farmer, the only witness who got to the stand Thursday. On direct examination, Farmer said betamethasone was more than just part of the Otomax cream that Baffert’s team applied to Medina Spirit’s rash.

“It is a very potent anti-inflammatory,” Farmer said. “It has the ability to mask a potential, underlying injury that could lead to a catastrophic breakdown. It is a huge risk.”

In his cross-examination, Brewster tried to discredit Farmer, asking repeatedly if the veterinarian personally investigated the facts of Medina Spirit’s drug positive, interviewed Baffert or his staff or examined the barn at Churchill Downs.

Farmer repeatedly answered no.

When Brewster retraced some of those steps, Moad objected, and Grady Jennings reminded both sides that she wanted the hearing kept on the narrow path of a dozen questions directly related to Baffert’s request for a preliminary injunction.

Among those questions was why the Baffert team waited so long to ask for court relief. He did so first in March 2021, but then he withdrew the request when he lost his appeal to have a separate, 90-day KHRC suspension overturned. He refiled in December.

“We wanted to work through the KHRC,” Brewster said. “The delay was occasioned on the basis of … trying to communicate with Churchill. When we failed in that effort, we filed for this injunction.”

Brewster said he and his colleagues also were dealing with the New York Racing Association’s one-year suspension over the Medina Spirit matter, even though Baffert never has had a medication violation in New York.

“Mr. Baffert created an unreasonable, tactical delay in bringing this motion,” Dupree said. “He waited too long. Equity does not benefit people like Mr. Baffert who sleep on their rights for a year-and-a-half.”

The two sides also argued about how Baffert has been harmed financially by the suspension, whether he had a relatively clean medication record and who was to blame for the case mushrooming into a mainstream headline 21 months ago.

“It set the horse-racing world on fire because of the edict of Mr. Carstanjen,” Brewster said, adding later that lack of due process “is wrong in every respect of the country we live in.”

One thing that went unmentioned Thursday was the fine print added to this year’s Triple Crown nomination form. It said horses could not qualify for the Kentucky Derby unless they were in the care of eligible trainers by Feb. 28. That clause clearly was intended to keep Baffert from moving horses to other stables only a month before the race, a move he made last year when he temporarily transferred Taiba and Messier to Tim Yakteen.

As the clock struck 5:00, the court was faced with the proposition of carrying on late into the night or resuming Friday morning. Once Grady Jennings confirmed there would be a court reporter and courtroom available, she ordered a continuation to a second day.

In addition to Baffert, Brewster said he would call veterinarian Dr. Vince Baker to the stand Friday. The CDI team said it also would question Baffert as well as Mike Anderson, who is president of the company’s namesake racetrack that hosts the Derby.