By T. D. Thornton
The win by scopolamine-positive Justify in the 2018 running of the GI Santa Anita Derby is now going to come under official administrative scrutiny by the California Horse Racing Board (CHRB). But Bob Baffert, the trainer of the eventual undefeated Triple Crown winner, will not have a CHRB complaint lodged against him “due to substantial evidence that the scopolamine resulted from environmental contamination from jimson weed,” the CHRB stated in a Wednesday press release.
As part of a negotiated settlement stemming from a lawsuit filed against the CHRB by the owner/trainer of Bolt d'Oro, the runner-up horse in the 2018 Santa Anita Derby, the CHRB voted during a closed session Aug. 20 to reverse its previous course of no action and to proceed with a complaint seeking the disqualification of Justify and the redistribution of the purse from that stakes.
The CHRB has set a Sep. 20 stewards' hearing date at Santa Anita Park to begin the complaint adjudication process. Left unanswered at this point–and possibly unanswerable at all–is what might happen to Justify's subsequent Triple Crown race victories if Justify gets DQ'd from the Santa Anita Derby. Had Justify not finished among the top two finishers in that GI Kentucky Derby points-qualifying race at Santa Anita Apr. 7, 2018, he would not have made the cutoff for entry into the Kentucky Derby. And if he doesn't get to enter and win the Derby, he certainly wouldn't have been in the running for the Triple Crown. With regard to that question of eligibility, CHRB spokesperson Mike Marten wrote in an email: “In California, eligibility is determined at the time of the race. In this case, however, the [Kentucky Horse Racing Commission] would be in the best position to make [any Kentucky Derby eligibility] determination. The CHRB is not seeking any disqualification beyond the Santa Anita Derby.”
Darrell Vienna, the attorney for plaintiff Mick Ruis (Ruis Racing LLC), told TDN that he is pleased with the CHRB's executive session vote to move ahead with a hearing. He added that seeking punishment for Baffert or having Justify stripped of his status as a Triple Crown winner was never the intent of his client's litigation.
“This is what we've been fighting for,” Vienna said. “We had never sought to have [the CHRB] file a complaint against Mr. Baffert for anything. We just weren't privy to those facts.
What we were privy to is the fact that the horse tested positive for a Class 3/Penalty B substance, which requires automatic disqualification.”
Vienna has consistently cited CHRB rule 1859.5, which requires forfeiture of the purse and disqualification of a horse that tests positive for a class 1-3 prohibited substance regardless of the trainer's responsibility.
“The key terms [of the settlement agreement] were simply that there would be a complaint filed and a hearing with regard to the potential forfeiture and disqualification of the winner,” Vienna said. “All we were ever asking for was a hearing. We weren't asking for an outcome. We were asking for a process.”
TDN reached Baffert on his mobile phone Wednesday, but he didn't want to speak about the CHRB's decision, deferring to his attorney for comment.
“Craig Robertson III, the lawyer who represents Baffert, said “We're very disappointed and surprised at the action that the CHRB is taking. We don't think that it has any legal basis whatsoever, and we intend on fully fighting it. We're contemplating those options right now. There are a number of different avenues that could be pursued, including the courts. But we haven't made a final decision in terms of which avenue we're going to pursue.”
Although Justify has been the focal point of the case since the story of his post-race positive test (and the CHRB's alleged dragging-out over how to handle the results) belatedly broke in September 2019, another Baffert trainee, Hoppertunity, is also going to be the subject of a CHRB hearing over his own scopolamine positive.
“The CHRB is seeking the disqualification of Hoppertunity, winner of the [GIII] Tokyo City Cup S. at Santa Anita on April 8, 2018, and the redistribution of that purse based on laboratory findings that his post-race sample for that race tested positive for scopolamine,” the CHRB release stated. “While not the subject of current litigation, this medication positive was similar to the one involving Justify.”
Baffert has consistently denied that he has ever intentionally administered scopolamine to any of his horses.
A CHRB supporting document emailed to TDN by Marten stated: “The decision to file a complaint against a trainer for a medication positive is discretionary for the CHRB…In certain instances, where environmental contamination occurred, the CHRB has chosen not to file such complaints. Examples of medications often associated with environmental contamination where the CHRB has elected not to file trainer complaints are scopolamine and zilpatero..”
“We determined that the cause of the positives in the Justify and Hoppertunity matters were environmental contamination,” the release continued. “In the last few months, the CHRB did file several trainer complaints alleging scopolamine positives in post-race samples, but recommended, and the stewards issued, warnings based on those violations. Given that the Justify and Hoppertunity positives occurred over two years ago and at most the CHRB would only seek a warning, the CHRB chooses not to file complaints against Mr. Baffert in these matters.”
TDN asked Marten to clarify whether the CHRB's executive-session votes on these matters were unanimous. He replied via email that “Any action by the Board in closed session requires at least four approvals. As for the breakdown of the voting among the six commissioners, we will need to check with counsel to determine whether that is public information.”
TDN also wanted to know if the CHRB would have undertaken a review of the Justify case had it not been for the pending litigation. Marten wrote back that “The CHRB cannot speculate on a hypothetical question about what the commissioners might have done.”
On July 24, when news broke that Ruis reached an agreement in principle with the CHRB regarding a settlement of his pending litigation in Los Angeles County Superior Court, Vienna told TDN that the agreement would be “in exchange for the dismissal of the entire litigation,” including any possible damages.
Court records indicate that on Aug. 4, both parties jointly petitioned the court to have an upcoming Sep. 4 hearing continued to a future date “because the parties are currently engaged in settlement negotiations.” That request was granted, and the judge in the case set the next court date for Feb. 5, 2021.