By Joe Bianca
BROOKLYN, NY–Judge Carol Bagley Amon dismissed Bob Baffert's charge of contempt against the New York Racing Association Tuesday morning in federal court, saying that her previous injunction of NYRA's attempted suspension of Baffert in May applied only to enforcing that suspension, and not the issue at hand of NYRA scheduling a hearing and issuing official charges against Baffert in a Sept. 10 statement. The ruling clears the way for NYRA to proceed with its proposed hearing process, which is scheduled to begin Oct. 11 and may result in Baffert once again being suspended from racing at NYRA tracks.
Baffert's attorney Craig Robertson attempted to argue that NYRA only created rules and procedures for giving a Baffert hearing after the fact in an attempt to suspend Baffert for the same reasoning as it had in May. Amon dismissed that argument, interrupting Robertson several times to note that a hearing process for Baffert is legally separate from NYRA's enjoined May 17 attempt to suspend him.
“That suspension is no longer in effect,” she said. “I don't know how you can read that [injunction] order to say they cannot now proceed with a hearing. They're not seeking [to suspend him], they're simply seeking to give him a hearing. What was enjoined was the fact that they suspended him without a hearing … I didn't reach a merits decision as to [the suspension]. What I said was that your client was entitled, before someone decided to suspend him, to put forth his answers to all of the charges that they had brought. He can do that now.”
Robertson again tried to argue that NYRA was creating “ex post facto” rules for its original suspension, but Amon again interrupted to say, “No, they're not, because this is a whole new proceeding. You're missing the import of the court's original order … The lawsuit that you brought dealt with a suspension in May … This is an entirely different scenario.”
Robertson returned to his argument that the reasoning behind the scheduled hearing process and potential resulting suspension for Baffert is the same as it was for NYRA's initial attempt to suspend Baffert, to which Amon said, “What difference does that make? We're talking about contempt here. I did not make a ruling that their reasons were invalid in the last hearing, I said he should get a chance to answer [the charges] … They are giving him the opportunity to address all of this.”
Robertson then pivoted to criticizing the nature of NYRA's proposed due process hearing, saying, “They have said, 'Here is your due process, Mr. Baffert. You can have a hearing in front of a hearing officer we appoint. That hearing officer then makes recommendations to a panel that we appoint, and that [NYRA CEO] Mr. [David] O'Rourke appoints. And Mr. O'Rouke has already submitted multiple affidavits in this case in support of the suspension of Mr. Baffert. That panel that Mr. O'Rourke appoints then can do whatever they want, impose whatever penalty they want, and then you have no right of appeal.'”
Amon was more sympathetic to that argument but ultimately found it unrelated to the case in front of her, saying, “I understand your point on that … But I don't know that at this point in time, I [can] prejudge something that hasn't happened yet, particularly in the context of this lawsuit, which pertains to the May 17 suspension, not something that may happen in the future.”
Robertson then argued that NYRA had no rule on the books justifying a suspension for offenses occurring outside of New York, saying “they've now made that rule up,” but Amon shot that down as well, saying, “That's a different lawsuit. That's not this lawsuit.”
Chiming in for the first time, NYRA attorney Henry Greenberg said, “A contempt proceeding is not an appropriate vehicle to raise issues, either procedural or substantive, [about] the hearing. Those arguments should be raised before the hearing officer, retired [New York State] Supreme Court Justice Peter Sherwood, a distinguished jurist, who the Court can be confident and certain will provide a fair, impartial, neutral proceeding for opposing counsel. Those arguments, all of which we address in our paper on the merits, respectfully, are not appropriately heard [here].”
Greenberg then referenced Robertson's opening statement that he did not want to be in court Tuesday but was left with no choice due to NYRA's actions, and said that, to the contrary, NYRA was providing precisely what the earlier injunction directed them to.
“When opposing counsel says he had no choice but to bring this proceeding … In fact, what NYRA is doing today by this administrative proceeding is providing exactly–exactly–what he argued he was entitled to. When [the] July 14 order from the Court was issued, your Honor, NYRA took every word, every syllable. It provided–although that wasn't the intent, perhaps–it provided us guidance about how we could establish a due process mechanism that would allow us to fairly provide the accused to tell their side of the story.”
NYRA also pushed back against the notion that it was creating a retroactive process simply to enforce its original suspension against Baffert, noting that it has also scheduled hearings and issued charges for disgraced trainer Marcus Vitali.
“The problems that we are addressing are not limited to Mr. Baffert,” Greenberg said. “On the same day that we brought the proceeding against Mr. Baffert, we brought it against another trainer, a gentleman by the name of Marcus Vitali, and selected a retired Court of Appeals judge to preside over the proceeding … I leave the Court with the thought that NYRA has taken to heart the guidance and analysis contained in your decision, is committing to this Court that our faithfulness and fidelity to due process will be observed. Mr. Baffert will be given a punctilious compliance with a due process hearing.”
As the proceeding wound down, Robertson left the door open to amending his complaint before disputing what he said was NYRA lumping Baffert in with Vitali.
“To the extent that the Court believes I need to amend my complaint, I would ask for leave to do that, number one,” he said. “Number two, I want to make sure the record is clear, comparing Mr. Baffert to Mr. Vitali is comparing apples to oranges. They have only brought a proceeding against Mr. Vitali to give them cover. Mr. Vitali has a history of 84 drug violations, animal cruelty charges, numerous license suspensions throughout the East Coast and in fact, at one point in time was charged with when investigators came to his barn, running to a refrigerator, grabbing a bubble-wrap bag out of a refrigerator and running off. To compare the two, it's not without import. It has no merit.”
Robertson concluded by saying of a potential future suspension of Baffert by NYRA, “It's the same suspension. The only thing that's changed is the date on the letterhead.” But Amon was unmoved.
“The plaintiff has not proved clearly and convincingly that the September statement of charges violates the July 14 order,” the judge said in her official ruling. “The plaintiff mischaracterizes that order as enjoining NYRA from suspending Baffert for the reasons set forth in the May 17 letter until the conclusion of this case. But the text of the July 14 order bars the defendant only from enforcing the May 17 suspension. It says nothing about the May 17 letter's reasoning … This is not a case in which the Sept. 10 statement of charges can be equated to the May 17 suspension, because there had been significant and material alterations. Unlike the summary suspension ordered in the May 17 letter, the Sept. 10 letter does not suspend Baffert without a hearing. Sept. 10 proceedings create a hearing to consider a possible suspension, not to implement one. And unlike the May 17 suspension, the Sept. 10 statement of charges brings with it a full hearing, evidentiary disclosures, the standard of proof, an impartial hearing officer [and a] right to appeal any decision by the hearing officer to a panel. As [NYRA] counsel has pointed out, contempt proceedings are not a proper vehicle to challenge later actions. So I'm going to deny the request for a stay at this point.”
NYRA was quick to issue a statement praising the decision. “Earlier today, Judge Carol Bagley Amon denied Mr. Baffert's motion seeking to hold NYRA in civil contempt and to stay the administrative hearing,” said Patrick McKenna, Senior Director of Communications for NYRA. “We are gratified by the court's decision allowing NYRA to move forward with its administrative hearing against Bob Baffert. The court found that NYRA's actions were consistent with both the letter and spirit of the July 14 order. NYRA's focus in this matter is protecting the integrity of the sport of Thoroughbred racing in accordance with the requirements of due process.”
Robertson said afterward, “I'm disappointed. But the injunction remains in place and Mr. Baffert is still able to race in New York. We will review the court's ruling and determine next steps.”