Derby Prep Season is Upon Us; Get Tied On for Litigation

Presumptive champion Corniche, trained by Bob BaffertHorsephotos

The Week in Review by T.D. Thornton

Oaklawn Park readjusted its series of prep races for the GI Kentucky Derby this year by moving back the date of its premier stakes, the GI Arkansas Derby, so it now sits five weeks out from the first Saturday in May instead of the traditional three. That changed the overall complexion of the prep-race picture so that the final three nine-furlong stakes that award 100 coveted Derby qualifying points to the winner will all take place Apr. 9.

This means that for the first time, there will now be a full four-week gap between the last significant prep races and the May 7 Derby.

The Apr. 16 GIII Lexington S. at Keeneland will technically be the final Derby qualifying race. But with only 20 points to the winner, that 1 1/16-mile stakes historically lures few A-list sophomores.

Taking the longer view, it's hard to believe we are only 40 years removed from when Churchill Downs used to card the Derby Trial S. on the Tuesday (four days!) before the Derby itself, and it served as a legitimate prep race.

Although the new four-week minimum spacing is in line with the current less-is-more approach to racing top-level contenders, the nearly full month without any meaningful (to the general public) events in the lead-up to America's most important horse race could prove problematic.

In theory, that gap should be filled with even more beauty shots of Thoroughbreds being bathed, and trainers will be increasingly challenged to come up with newly creative ways to say “I'm just trying to keep this colt happy and healthy” when repeatedly asked about the minutiae of their training methodologies.

But in all likelihood, there won't be any vacuum in the news cycle. That's because this spring, it's a solid bet that any expected void will be overtaken by litigation headlines related to whether or not Bob Baffert's trainees will truly end up excluded from the Derby.

Back in June, Churchill Downs, Inc. (CDI), barred the seven-time Derby-winning trainer from its portfolio of racetracks in the wake of now-deceased Medina Spirit testing positive for a betamethasone overage while winning the 2021 Derby.

Citing private property rights and Baffert's “repeated failures” regarding equine drug infractions (four other Baffert trainees also tested positive for medication overages roughly within the previous year of the ban, two of them in Grade I stakes), CDI said the Hall of Famer wouldn't be eligible to race in the 2022 or '23 Derbies; nor would his trainees be allowed to accrue qualifying points.

The purpose of this column isn't to debate whether or not Baffert's ban should be lifted or not. Rather, the intent is to provide a heads up about the barrage of non-horse-related court news that is odds-on to overshadow most pre-Derby talk about the equine athletes themselves.

Baffert currently trains 'TDN Rising Star' Corniche (Quality Road), the presumptive 2-year-old champion, plus his usual stacked stable includes a handful of other 'Rising Star' sophomores and graded stakes-winning colts. Had those horses been allowed to collect Derby points for their wins and placings so far, Baffert would be in his customary top-heavy position of dominance on the qualifying totem pole.

There appear to be three paths to Baffert-trained horses being allowed to run in the Derby: 1) CDI relents; 2) Owners of Derby aspirants currently conditioned by Baffert start sending those horses to other trainers, and 3) The issue winds up in court, taking the form of lawsuits in which obtaining a temporary restraining order (TRO) to allow participation in the Derby is more important than winning the overall case.

CDI relenting is the least likely outcome. Why would it? Its position seems legally defendable from the private property perspective, and the ban had to have been implemented only after the gaming corporation's layers of attorneys crafted, tweaked, and signed off on it.

The second option–essentially a high-stakes game of chicken–is a more likely outcome, but it too is not etched in stone. As the reality of a once-in-a-lifetime chance to own a Derby winner comes more clearly into focus and qualifying points grow more imperative, it remains to be seen how many of Baffert's clients reframe their reasoning from “we're loyal to Bob” to “circumstances have forced our hand.”

Litigation permeates all aspects of society and our sport is no different, so having Baffert's banishment hashed out in front of a judge seems like the most inevitable outcome.

In a separate case just last week, a federal court dismissed an anti-trust and anti-competition lawsuit filed by eight Standardbred owners who faced private-property exclusions from tracks in New Jersey and New York because of their ties with a banned trainer. But even though that case got tossed, the judge dismissed it “without prejudice,” signaling that those plaintiffs could initiate a subsequent suit with re-filed charges or take the matter to another court.

So along the same lines, just because CDI appears to have a strong case, that doesn't preclude anyone who perceives they're being harmed by that ruling from challenging it. Courts in our country are generally reluctant to stand by and do nothing when “my livelihood is being yanked away from me” types of arguments are presented, and when corporate entities try to assert broad control over individuals, judges are usually receptive to at least hearing out the so-called little guy.

Given that framework, you can understand why Baffert has yet to challenge CDI's banishment in court. Why try to litigate relatively early in the process when it would be to Baffert's advantage to wait until we're right on the cusp of the Derby, when he could claim that the alleged harm from the ban is at its most imminent? Again, he doesn't even have to argue well enough to win the overall case–just well enough to convince some judge somewhere to grant a TRO that puts CDI's exclusion on hold while the parties duke out a final verdict.

Conceivably, that application for a TRO could even include a request for the judge to order CDI to retroactively tally up the non-awarded qualifying points as if Baffert's horses had earned them all along. The argument could be made that such an order would cost CDI nothing in terms of money–they're just qualifying points after all. There's no hard-and-fast legal rule of what a petitioner can and cannot ask for in a TRO.

Then again, that angle might open yet another Pandora's Box. What if Baffert has three colts who suddenly get ruled eligible to run in the Derby based on a recalculation of points, but other owners whose horses get nudged out of the starting gate separately sue because they were deprived of Derby berths by the very same order? The waiting during that four-week period in April and May will be tough enough on the connections of Derby horses without a constantly simmering debate over which horses legally “deserve” to start.

Right now, most of the discussion on this topic tends to focus on whether Baffert takes the matter to court. But he might not have to. If the individual owners of Derby-worthy colts ask for TROs on their own instead of having their trainer do so, it leaves the door open for them to try an angle of persuasion along the lines of, “Hey, we're just collateral victims caught in the legal crossfire between Baffert and CDI, and we're being robbed of our one and only opportunity to run in the Derby with our otherwise-eligible horse.” That might end up being more of a convincing tactic than forcing a judge to side with either Baffert or CDI.

The looming wild card in this entire scenario has to do with the inaction so far by the Kentucky Horse Racing Commission (KHRC) in issuing any sort of ruling pertaining to the event that triggered CDI's ban.

Medina Spirit's betamethasone positive has long since been confirmed by two KHRC accredited labs, and we're now nearly 250 days out from the race date when the alleged infraction occurred. No hearing has taken place (at least none that has been publicly disclosed), and in the months-long interim, the KHRC has already tested for, held hearings, and ruled upon other drug positives that have subsequently occurred at other race meets in the state.

Remember back in 2019, when Maximum Security got disqualified from winning the Derby for in-race interference? At that time, KHRC representatives repeatedly underscored how they officiate the Derby just like any other race. Clearly, based on how long the process has been stalled and dragged out, that is not what's happening with Medina Spirit's in-limbo drug positive.

It's not out of the realm of possibility that the 2021 Derby won't get fully adjudicated before the 2022 Derby is run. And that lack of a KHRC ruling could factor in favor of Baffert or any ownership entity that decides to challenge CDI's Derby exclusion in court.

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