By T. D. Thornton
A federal judge at 5 p.m. Wednesday granted trainer Bob Baffert a preliminary injunction in his lawsuit against the New York Racing Association (NYRA) that will allow him to race at New York's three major tracks pending the resolution of the case.
In a civil complaint filed by Baffert June 14, the seven-time GI Kentucky Derby-winning trainer had alleged that NYRA's banishment of him since May 17 over the issue of his repeated equine drug violations violates his constitutional right to due process. That same day he moved for an order to keep NYRA from enforcing its suspension while the lawsuit played out.
“This suspension is likely to cause multiple irreparable harms,” Judge Carol Bagley Amon of United States District Court (Eastern District of New York) wrote in her 28-page order, which was handed down on the eve of the lucrative Saratoga Race Course season.
The order later continued: “In sum, I find that Baffert has established a likelihood of proving that NYRA's suspension constituted state action, and that the process by which it suspended him violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”
Yet Amon also wrote that “although NYRA's actions have functionally deprived Baffert of his trainer's license, NYRA has not formally suspended that license. In sum, it is not likely that Baffert will be able to prevail on his claim that NYRA had no legal authority to take the action that it did.”
Amon addressed Baffert's claims of harm first:
“First is the irreparable harm from the loss of unique competitive opportunities. Part of that harm is monetary….
“Second, Baffert has persuasively argued that NYRA's action will damage his 'reputation and goodwill' in a way that could not readily be remedied should he prevail at trial….
“Finally, to the extent that NYRA contends that Baffert's one-month delay in seeking a preliminary injunction precludes his claim, this argument is unpersuasive,” Amon wrote.
NYRA had excluded the Hall-of-Fame conditioner in the wake of five positive drug tests in horses Baffert has trained over the last 12 months. It has repeatedly termed the suspension “temporary,” but Amon noted the banishment is now nearly two months old, and that “indefinite” would be the more accurate descriptor.
As a threshold matter, Baffert had argued that NYRA lacks the power or authority to suspend him indefinitely from all New York race tracks because the New York State Gaming Commission is the sole entity with general jurisdiction over all gaming activities within the state.
Amon wrote that “In a similar vein, he argues that NYRA failed to follow the procedures set forth in regulations that govern the suspension of trainers' licenses. One such regulation requires an 'adjudicatory proceeding' prior to any action being taken related to the suspension of a licensee. Another requires the provision of formal notice to the licensee. As to this argument, Baffert has not shown a likelihood of success on the merits or serious questions going to the merits.
“The claim that NYRA had no right to take the action it did would appear to be foreclosed by the New York Court of Appeals decision in Saumell v. New York Racing Association,” Amon wrote (see TDN's story from earlier this week on how that legal precedent might affect this case).
“In that case, NYRA summarily excluded a licensed jockey, based on an assertion that he had violated a racing regulation. The jockey contended that NYRA 'was without authority to do so,' because in suspending him NYRA had 'usurped the power of the Board.' The Court of Appeals rejected the jockey's argument. It held that '[t]he common-law right of [NYRA] to exclude persons from its premises includes the right when there is reasonable cause to believe a jockey licensed by the [state] guilty of misconduct to deny him access,'” Amon wrote.
“The fact that NYRA leases rather than owns the tracks does not alter its right of exclusion,” Amon wrote, referring to another issue Baffert's legal team had raised. “The lease agreement for the Saratoga Race Course expressly states that NYRA receives 'all rights, privileges, easements and appurtenances belonging to or in any way pertaining to the Leased Premises…' And a lessee maintains the right to lawfully exclude, even where its lessor is the state.
“Nor does it help Baffert that NYRA's exclusive franchise right is 'subject to appropriate racing laws and regulations.' He contends that the regulations provide that only a state official may suspend a license. The regulation he cites, however, 9 NYCRR § 4022.12, expressly states that “[n]othing in this section shall be construed to limit any racing association or track licensee's power to exclude or deny any individual from its grounds or privileges thereon.'”
Three of Baffert's recent equine drug violations occurred in Grade I stakes. The most recent drug positive, for betamethasone in Medina Spirit (Protonico) after the colt won the GI Kentucky Derby on May 1, has yet to be adjudicated by the Kentucky Horse Racing Commission. Churchill Downs Inc., however, has already barred Baffert from participating at any of the gaming corporation's five Thoroughbred tracks for a period of two years.
“The most significant circumstance–and the one which primarily motivated NYRA here–was the 2021 Kentucky Derby, including Medina Spirit's alleged betamethasone test, Churchill Downs' suspension of Baffert, and Baffert's post-Derby statements,” Amon wrote. “But these events were not so straightforward as to deny Baffert an opportunity to address them before being summarily suspended.
“The allegation that Medina Spirit had tested positive for betamethasone was only an allegation, and one that Baffert contested. He had admitted at most that a 'possible explanation' was that the horse had been given a topical ointment containing the substance. But whether the test result was accurate, what the results would be of the split sample testing, and whether Kentucky would take any action against Baffert were uncertain matters of ongoing investigations. Both Baffert himself and the Kentucky authorities are still investigating the matter. Baffert was entitled to a pre-deprivation hearing to address these claims.”
Amon continued: “Reliance on Baffert's statements to the press following the Kentucky Derby without giving him an opportunity to address them was similarly problematic. The suspension letter stated that Baffert 'provided the media with different accounts and theories as to why Medina Spirit tested positive for betamethasone….' NYRA continues to suggest that Baffert spoke in a duplicitous or at least inconsistent manner in his public statements regarding Medina Spirit….
“NYRA's belief that Baffert's public statements were unreliable put his credibility in issue. When the credibility of a property-holder is in issue, that is exactly the situation when a hearing is necessary so that the individual may be heard directly. At a hearing, Baffert would have the opportunity to present his version of the events, and to address any perceived inconsistencies in the statements he had given to the press. But NYRA's failure to provide a hearing deprived him of a meaningful opportunity to provide his side of the story,” Amon wrote.
“Baffert was likewise denied an opportunity to be heard regarding the four fines from the prior year upon which NYRA partially rested its suspension decision…. NYRA considered only the fact of the violations, rather than the circumstances surrounding them. A hearing would have allowed Baffert to submit evidence and make argument regarding these events.”
Amon continued: “NYRA's reliance on 'other related information' obviously raises a notice problem. Needless to say, the risk that Baffert was suspended for improper reasons–or reasons for which mitigating information existed that he was unable to provide NYRA–increases dramatically when the decision to suspend him was based upon unspecified reasons.
“Baffert should have been given notice of all of the reasons that NYRA intended to suspend him.
I find that in light of the foregoing facts, there was a risk of erroneous deprivation, and the benefits of providing notice and a pre-suspension hearing would likely have been substantial.”
Amon also wrote about the state's interest in the matter.
“NYRA surely has an 'important interest in assuring the integrity of the racing carried on under its auspices.' Also important is the safety of jockeys and horses, which can be put at risk through the use of injury-masking substances such as betamethasone. Although I recognize these weighty concerns, they are somewhat ameliorated here by the existence of numerous New York racing laws (including drug-testing), all of which Baffert would be required to follow in any NYRA races.
“NYRA's assertion of these interests is also to some extent undermined by the fact that apparently it has permitted other trainers with similar or more serious histories of medication violations to continue racing at NYRA racetracks. Likewise undercutting the invocation of integrity and safety here is the fact that Baffert has raced for many years at NYRA racetracks in over one-hundred races, and has never been found to have violated any of the state's regulations.
“Although I recognize the special concern given Baffert's and Medina Spirit's high profile, it is at least of note that when NYRA issued its decision, the horse had run the [GI] Preakness S. two days earlier without any incident,” Amon wrote.
“I accordingly conclude that, although NYRA invokes important interests here, those interests do not outweigh Baffert's weightier interest in being able to practice his chosen profession, especially given the risk of erroneous deprivation and the likelihood that additional procedures would have been valuable,” Amon wrote.
“Even if NYRA had probable cause to suspend Baffert without a pre-deprivation hearing, a 'prompt' post-suspension hearing would have been required. NYRA argues that Baffert cannot bring a due process claim because he was 'provide[d] apparently adequate procedural remedies' but 'has not availed himself of those remedies.' But NYRA has held no hearing–let alone a prompt one. Its after-the-fact offer to Baffert of an opportunity to submit written evidence or arguments within a seven-day window was plainly not a hearing….
“At oral argument, counsel for NYRA indicated that a 'final determination' as to the length and terms of Baffert's suspension would be made by Aug. 11, and that NYRA would provide him with the opportunity for a hearing after that time. Such a timeline cannot reasonably be deemed 'prompt,' especially in light of the upcoming Saratoga meet.
“NYRA has provided no explanation for why it could not have offered Baffert a hearing in the two months since he was suspended, nor any explanation for why it must wait another month to make a 'final determination.'
“With so much on the line, Baffert was entitled to (at least) a 'prompt' post-deprivation hearing which should have already occurred,” Amon concluded.
TDN left several messages with Baffert seeking comment on the decision. Neither yielded a reply prior to deadline for this story.
NYRA issued a press release quoting its president and chief executive, Dave O'Rourke, which read, in part:
“NYRA is reviewing the court's decision today to determine our legal options and next steps. What is clear, however, is that Mr. Baffert's actions and behavior can either elevate or damage the sport. We expect Mr. Baffert to exert appropriate controls over his operation.
“Importantly, the court upheld NYRA's authority to exclude individuals from its racetracks whose conduct is contrary to the best interests of Thoroughbred racing. The court also rejected Baffert's argument that NYRA had no legal authority to take the action that it did,” O'Rourke said.