By T. D. Thornton
Trainer Bob Baffert, plus the owners and two jockeys who rode the undefeated 2018 Triple Crown winner Justify and the MGISW Hoppertunity, filed a legal petition against the California Horse Racing Board (CHRB) Oct. 13, alleging that the CHRB's recent decision to reopen hearings on two scopolamine positives from those horses in 2018 amounts to “arbitrary, capricious, and unlawful conduct” that purportedly targets Baffert and his clients unfairly while supposedly damaging the horses' reputations as stallions.
The petition, filed Tuesday in Los Angeles County Superior Court, seeks a judgment, injunction, and “peremptory writ of mandate commanding Respondent CHRB to dismiss the Complaints filed against Petitioners and cancel all hearings on the matter.”
The petitioners–Baffert, WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC, Starlight Racing, Michael Pegram, Karl Watson, Paul Weitman, Mike Smith, and Flavien Prat–are also going after the CHRB for unspecified monetary damages, attorney fees, and court costs, plus “other, different, or further relief as the Court may deem just and proper,” according to the 26-page court filing.
“This action challenges the CHRB's groundless decision to reopen a closed matter and conduct a retroactive hearing with an apparently foregone conclusion to disqualify and redistribute winnings from horse races that occurred two and a half years ago. When those races [the [GI] Santa Anita Derby and [GIII] Tokyo City Cup] were run in April 2018 and two horses (Justify and Hoppertunity, respectively) were declared the winners, the CHRB decided the very issue it is seeking to revisit now,” the court documents state.
“The CHRB has no legal or factual basis for reopening its prior final decision,” the filing continues. “As the CHRB knew when it decided this issue in 2018, both Justify and Hoppertunity tested positive for scopolamine just after their respective races in April 2018. But after a thorough investigation and deliberation, consistent with the well-established equine science and its very own governing statute and rules, the CHRB correctly decided that the positive results were due to naturally occurring contamination in the horses' feed and therefore dismissed the matter. Now, after almost two and a half years, the CHRB has issued complaints and announced it intends to hold a hearing [Oct. 29] to consider retroactively disqualifying these two horses.”
The filing contends that “The CHRB's attempted proceedings, however, ignore a critical element: the CHRB could not have disqualified either horse in 2018 and cannot do so now because scopolamine is a classified substance that, by law, does not permit disqualification. Further, the CHRB has no authority, or basis, to reopen this closed matter. Rather, the CHRB has admitted it has issued its complaints and is holding a hearing simply to dispose of a civil action brought against it by a race runner-up, and solely as a way to avoid further litigation and expense in that lawsuit.”
According to the Oct. 13 filing, “All racing jurisdictions have rules that govern the sport and the presence of medications and substances in post-race blood and urine tests. California is no different, and the April 2018 tests were taken pursuant to those rules. Specifically, California's classification system delineates five classes of substances [and] four categories of penalties. [The more egregious and harmful] Class 1-3 substances correspond with penalty categories A and B, while Class 4-5 substances are associated with penalty categories C and D.”
“At the time of the 2018 Santa Anita Derby, just as it is today, the CHRB's rules designated scopolamine as a Class 4, penalty C substance. Significantly, disqualification is not an authorized penalty for Class 4, penalty C substances. Plainly stated, disqualification premised on the presence of scopolamine was not a permissible option for the CHRB in April 2018 under its own rules [nor is it an option today].”
The filing continues: “There have been numerous incidents of jimson weed contaminating bales of hay, leading to what are called 'clusters' of horses testing positive for scopolamine when they unknowingly ingest contaminated feed. Fortunately, there is a proven scientific method for determining whether the presence of scopolamine in a horse is due to intentional administration or is the result of innocent contamination from hay. If the horse has ingested jimsonweed, blood tests of that horse will reveal the presence of atropine. On the other hand, if scopolamine has been intentionally administered, atropine will not be present.”
“Racing commissions routinely use the presence or absence of atropine in the blood as a determinative factor in deciding whether to pursue complaints against an owner or trainer.. Equally important, the amounts of scopolamine found in the blood of Justify and Hoppertunity..were small enough that they would have no pharmacological effect in a horse.”
The filing states that, “There were five other horses who tested positive for scopolamine during this time period. All seven horses were investigated by Dr. Rick Arthur, the CHRB's Equine Medical Director, and Rick Baedeker, the CHRB's Executive Director. Arthur and Baedeker determined that the cluster of scopolamine positives at Santa Anita in 2018 was the result of contaminated hay. They found jimson weed in hay that had been delivered to Santa Anita and the blood and urine samples of all the horses revealed the presence of atropine. The investigation and science were conclusive: this was a case of environmental contamination that had no effect whatsoever on all seven horses tested that day, nor the outcome of their respective races. Thus, Arthur and Baedeker jointly recommended to the Board of the CHRB that all seven cases be dismissed.”
“Arthur and Baedeker's recommendation was presented to the Board of the CHRB, which voted unanimously to dismiss all seven cases. That decision was not only proper, it was the only one the CHRB could make under its own rules..In sum, the cases for the seven horses testing positive for scopolamine in April 2018..were all thoroughly and properly investigated and were
all dismissed. The science was not only overwhelming, it 'mandated' such a result.”
The filing further contends that a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d'Oro, is “the only reason the CHRB has decided to reopen the formally closed decisions with respect to Justify,” because the CHRB “agreed to do so as part of a private settlement.”
In his suit, Ruis alleged that the CHRB's August 2018 vote to dismiss the case against Justify led Ruis to suffer “the loss of purse caused by the CHRB's failing to disqualify Justify and re-distribute the purse for the positive test result.”
The Oct. 13 filing states that, “the CHRB is only attempting to reopen its 2018 decision regarding Hoppertunity because that horse too was trained by Bob Baffert” and that, “the CHRB agreed to file the [Aug. 25, 2020] complaints against Justify and Hoppertunity solely to avoid further litigation costs associated with its legal defense in the Ruis lawsuit and to placate the race runner-up.”
The Baffert, et al, filing states that as a result of the CHRB's unlawful conduct, the petitioners have, “suffered harm, including damage caused to Justify's and Hoppertunity's reputations, as award-winning Thoroughbred horses.”
But the Oct. 13 court documents do not provide specific details about the exact nature of this alleged harm.
“Unless [the CHRB] is restrained and enjoined from reopening these actions that were previously and rightfully dismissed, Petitioners' rights will continue to be violated, as they have no plain, speedy, or adequate remedy at law; injunctive relief is the only legal means available to protect their legal rights,” the filing concludes.