In Ky. hearing, Baffert defends his actions with Medina Spirit

Frankfort, Ky.

Confronted by his own words in the days after Medina Spirit failed a drug test 15 months ago, Bob Baffert was asked again and again by a Kentucky Horse Racing Commission lawyer Monday whether he still thought it was “stupid” and “a mistake” to give betamethasone to a horse the day before the Kentucky Derby.

“I won’t say it was a mistake,” Baffert testified on the first day of his appeal hearing to try and reverse a 90-day suspension he already served and to restore Medina Spirit as the 2021 Kentucky Derby winner. “If you use an ointment to humanely heal a rash, that’s not a mistake.”

KHRC attorney Jennifer Wolsing then referred Baffert to a secretly recorded telephone conversation he had shortly after Medina Spirit’s positive test from May 2021. That was when he told chief steward Barbara Borden “it would be stupid” to give a horse betamethasone the day before the Derby.

Live updates from Baffert hearing, day 2.

“I was in a state of mind that when it was told to me that we had a positive, and the veterinarian was 100 percent that there was no way,” Baffert said during nearly 2 1/2 hours of testimony Monday afternoon.

He was referring to Dr. Vince Baker, whose expertise Baffert said he relied on to declare at first that his staff had nothing to do with Medina Spirit’s failed drug test. He said that it was another 48 hours before he was told the colt got the betamethasone from an Otomax skin ointment that had been applied daily until the eve of the Derby.

Under vigorous questioning by Wolsing, Baffert said he felt compelled to find a hasty explanation for the positive test, because word of it leaked to the media before he could adequately investigate how betamethasone got into Medina Spirit’s system.

He said the same thing happened a year earlier at Oaklawn, where Charlatan and Gamine tested positive for Lidocaine.

In 2020 Baffert said assistant trainer Jimmy Barnes passed the Lidocaine by handling a Salonpas pain-relief patch before putting tack on the affected horses. On the stand Monday, Baffert said he subsequently learned another horse also tested positive for Lidocaine that day at Oaklawn, meaning the contamination may have come some other way.

“If my confidentiality hadn’t been violated, ... We were trying to find out what happened. We knew no one gave Lidocaine to the horses,” Baffert said. “Usually when you get a positive, nobody is supposed to know about it. You’re trying to figure it out. You get a week to find a lab to get a split. It leaked out immediately.

“For some reason, I’m treated differently than other trainers. I get a positive, it leaks out. I don’t have the luxury of other trainers to get my head around it to find out what happened.”

Every time Wolsing tried to get Baffert to admit it was “stupid” to give any horse betamethasone the day before the Derby, Baffert’s attorneys Clark Brewster and Craig Robertson objected that he already had explained himself. Hearing officer Clay Patrick, a Kentucky attorney who was appointed to preside over the appeal, repeatedly instructed Wolsing to move on.

Before Baffert took the stand, Wolsing began and ended her 30-minute opening statement by saying, “This is a simple case, and we cannot be distracted from this single, solitary piece of paper.” That document she displayed was the rule that bans betamethasone from being in the system of a Kentucky racehorse, regardless of whether it came from an injection or an ointment.

Brewster differed with the simplicity argument, saying KHRC rules were “vague and ambiguous” and were changed sometimes at the 11th hour.

However, he also said the regulations were firm about one thing. That they differentiate between betamethasone acetate, via what would have been an illegal injection, and betamethasone valerate from the ointment Otomax, which he said is legally used to treat rashes on horses.

Brewster referred specifically to a passage in KHRC rules that said ointments “may be administered by a person other than a licensed veterinarian if the treatment does not include any drug, medication or substance otherwise prohibited by this administrative regulation, (and) the treatment is not injected.”

Brewster also criticized the secret recording made by the KHRC of Baffert’s telephone conversation with Borden. That was even after Patrick averred that under Kentucky law, only one party on a phone call needs to be aware of the recording.

At one point in that 2021 conversation with Borden, Baffert said he felt like something sinister was happening to him in Kentucky.

“I was talking in real time,” he remembered Monday. “I was venting. … It just hit us hard. I was upset. If I had known I was being taped I wouldn’t have said it.”

Baffert also said he regretted blaming “cancel culture” for the positive drug test. “That was a poor choice of words,” he said. “I was in a state of mind that my horse hadn’t been treated with betamethasone. I was very upset. … I was referring to Churchill Downs not letting me run there, and it was a kneejerk reaction.”

Wolsing’s strategy in recounting Baffert’s medication cases between the spring of 2020 and the 2021 Derby was to show a pattern of his ignoring the rules. To impugn his integrity, she even went so far as to try and quote passages from a book Baffert wrote in 1999. Brewster called it an attempt at “character assassination.” Patrick would not allow it.

But Wolsing did make the point to Baffert that “it seems like there’s a contradiction. You say you run a tight ship, and you know what the regulations are. … But you told Miss Borden you didn’t know the rules.”

Baffert insisted that the rules had changed without his knowledge, especially the 14-day withdrawal period during which it was generally accepted that a legal drug could be out of a horse’s system in two weeks before it would show up as an illegal, race-day positive.

“I know the 14-day stand-down,” Baffert said, “and I was 18 days.”

That was in reference to Gamine’s betamethasone positive after she finished third in the 2020 Kentucky Oaks. Baffert blamed the sudden change to more sensitive medication thresholds that boiled down to billionths of a gram for that infraction.

The four-hour session Monday will be followed by morning and afternoon sessions Tuesday, Wednesday and Thursday. A member of the KHRC staff said if the hearing was not done by Thursday afternoon, it would resume next Monday.

Patrick is hearing the case on behalf of the KHRC, which will get a recommendation from him at some point after the appeal is completed. Patrick reminded everyone in the hearing room that the burden of proof is on the KHRC to show why it suspended Baffert, fined him $7,500 and disqualified Medina Spirit. Yet the entire, 14-member KHRC can accept or reject Patrick’s recommendation when it eventually deliberates.

This was the same situation Baffert faced when he faced a New York Racing Association hearing last winter for “repeated medication violations” in other states. The presiding officer Peter Sherwood recommended a two-year suspension, but NYRA actually made it one year ending in January 2023.