Churchill asks court to reject Muth appeal for Kentucky Derby

Arguing that a lower court was right last week to keep Grade 1 winner Muth and his trainer Bob Baffert out of Kentucky Derby 2024, Churchill Downs Inc. urged the Kentucky Court of Appeals on Monday to reject Zedan Racing Stables’ motion for an emergency injunction to override that decision.

“There is no basis for the Court to upend the status quo to address a manufactured emergency of Zedan’s own making,” CDI attorney Chad McTighe of Louisville, Ky., wrote, adding later, “A court order compelling CDI to house Muth on its property for a week with a suspended trainer in tow would create a media circus and would be an enormous distraction for Churchill Downs, its personnel and other owners and trainers that have fairly earned a berth to the Derby in addition to overtly infringing CDI’s property rights. That is hardly a fair result, and it is one that jeopardizes the well-being of horses being housed at the track who have earned the right to be there under the rules.”

Zedan is trying first with the emergency motion to allow Muth into a barn at Churchill Downs before for an 11 a.m. EDT deadline Saturday for all Derby contenders to be on track property 8 1/2 hours before the post-position draw. The next step would be for the Kentucky Court of Appeals to hear Zedan’s second motion to allow Muth into the Derby itself. That brought a 247-page response from CDI.

“The circuit court did not abuse its discretion in denying Zedan’s last-minute bid to litigate its way into the Derby and displace up to three horses that earned their berths under rules in place for many months,” McTighe wrote. “This Court should affirm the circuit court’s proper exercise of discretion and deny Zedan’s motion.”

Tighe and the rest of the Churchill legal team argued that “Zedan would not be irreparably harmed absent an injunction,” that there would be “possible detriment to the public interest, harm to the defendant” and “hardship to other parties” and that “Zedan’s claim lacks merit.”

The biggest bone of contention at the root of both motions was CDI’s extension of Baffert’s two-year suspension last summer to run through all of 2024. The stable operation owned by Saudi Arabia businessperson Amr Zedan said it bought expensive horses like Muth with the expectation Baffert would be eligible for this year’s Derby. Zedan’s lawyers waited to sue, they said, to make sure one of those horses actually would have been eligible. That happened when Muth won March 30 in the Arkansas Derby (G1).

Churchill does not buy the reason for the 11th-hour litigation.

“Zedan slept on its or really Baffert’s rights for almost a year after CDI extended Baffert’s suspension,” Monday’s response said, later adding, “In the end, Zedan resorts to arguing that CDI made a promise ‘substantively if not semantically.’ The English translation for this legalese (is that) CDI never said it would not extend Baffert’s suspension, but Zedan wishes it had.”

Third parties not involved in the case were said by CDI to be potential victims if CDI were forced to put Muth in the 20-horse field.

“Zedan suggests that ‘there was no showing or finding that any other horse would be ousted from the Derby if Muth is afforded his points, or that any other owner would be aggrieved.’ To the contrary, the circuit court found exactly that. The math is simple. The Kentucky Derby is limited to 20 horses. If Muth races, another horse cannot. Zedan has not demonstrated that this factual finding is ‘clearly erroneous.’ ”

Churchill also declared “Zedan also failed to establish the requisite ‘substantial possibility that (it) will ultimately prevail on the merits.’ Zedan has not demonstrated that the circuit court abused its discretion or committed any error of law when it determined that Zedan’s claims are ‘likely to fail.’ ”

Lawyers for CDI also said Zedan’s claim that the Horseracing Integrity and Safety Act should have pre-empted Baffert’s suspension represented “a fundamental misunderstanding of what pre-emption is,” preceding that with their contention that “no matter the label, this theory holds no water.”

Earlier Monday, Zedan’s team filed a one-page statement saying it “is available for oral argument as and if the court may desire such, consistent with the emergency timetable.” It said it “welcomes the stated willingness of (CDI) to expedite this appeal” by filing its response Monday afternoon, two days before the deadline set by the Court of Appeals last week.

The next step is waiting to find out if one judge will hear the emergency motion, presumably this week in either Frankfort or Louisville. Ultimately, a panel of three judges could hear the bigger case to decide if Muth should be allowed into the Kentucky Derby.

It was in Jefferson County Circuit Court in Louisville where judge Mitch Perry ruled in favor of CDI on Thursday, rejecting Zedan’s request for a preliminary injunction that would have ordered Muth into the Derby field.

Baffert was suspended by CDI after Medina Spirit, also owned by Zedan, finished first in the 2021 Kentucky Derby but then tested positive for betamethasone. That result led to the disqualification of Medina Spirit and a protracted legal and administrative battle to try and restore the victory.

Even though his name comes up a lot, Baffert is not a plaintiff in the lawsuit.