KHRC Rules the Focus On Day 2 of Medina Spirit DQ Appeal

Bob BaffertHorsephotos

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A deeper dive into the Kentucky Horse Racing Commission's rules defining what medications are considered prohibited versus those that are considered therapeutic and the standards for out-of-competition testing in relation to betamethasone as opposed to post-race testing were the hot topics during day two of the Kentucky Horse Racing Commission's hearing addressing trainer Bob Baffert's appeal Tuesday.

Baffert filed the appeal to clear from his record a 90-day suspension he already served this spring, along with reversing Medina Spirit (Protonico)'s disqualification from his victory in the 2021 GI Kentucky Derby.

Both were the result of the Baffert trainee testing positive for betamethasone after winning the first leg of last year's Triple Crown, which led to the stewards' February ruling which disqualified the horse, cost owner Zedan Racing Stables the $1.86-million purse, and served Baffert his suspension (which ran from April through early July) and a $7,500 fine.

The day started off with Kentucky chief steward Barbara Borden taking the witness stand, where she stayed nearly four and a half hours while providing testimony, as Baffert's team argued that since the betamethasone was administered as an ointment rather than injected, it did not violate any regulations. However, the KHRC maintained that any systematic presence of betamethasone, regardless of how it was received, is prohibited on race day.

Borden took to the stand at 9 a.m., where she began answering questions from KHRC general counsel Jennifer Wolsing, setting the foundation for further inquiry with a review of Gamine (Into Mischief)'s disqualification from her third-place finish in the 2020 GI Kentucky Oaks following her post-race blood test that revealed the presence of betamethasone. Along with Gamine's disqualification, Baffert was fined $1,500.

From there, Borden responded to questions specifically regarding what transpired following the confirmation of Medina Spirit's betamethasone overage in the 2021 Kentucky Derby.

“I'm not happy when there's any medication violation. I felt like the process we were gonna go through…there was going to be a lot of publicity, [it would be] bad for racing in general, [and] would possibly be drawn out like it has been,” she responded when asked by Wolsing what her reaction to the positive test result was.

When asked if her decision in the final ruling was influenced at all by factors such as the media, the cases with Churchill Downs and the New York Racing Association, or Gerard O'Brien–Borden's significant other of 30 years that is a seasonal employee of Turfway Park (which is owned by Churchill Downs)–Borden was firm in her answer, “no.”

She reaffirmed that the stewards' decision was based on Baffert's four offenses in the 365-day period, including Gamine and Medina Spirit's overages of betamethasone in Kentucky–both considered Class C violations–and the overages of lidocaine found in the post-race samples of Charlatan (Speightstown) and Gamine after each won on 2020 GI Arkansas Derby Day, which are considered Class B violations.

“We did consider everything that was presented to us and ultimately this was our unanimous decision,” she said.

Also, during Wolsing's time taking testimony from Borden, she presented results of a review of positives for betamethasone that noted since the threshold change on Aug. 25, 2020, there were only two positives, and both were in Baffert horses: Gamine and Medina Spirit.

Over an objection by Baffert's attorney Clark Brewster, Wolsing presented a 2016 case regarding a betamethasone positive that involved trainer Tom Amoss, where he explained that he believed it came from application of an ointment. Though the case was dealt with under old rules, the case was presented to draw a parallel to the Baffert case, as Borden said the administration of the betamethasone was irrelevant then and Amoss was sanctioned and the horse that tested positive was disqualified.

The case of Kentucky-based trainer Carlos Lopez, who was suspended a total of 180 days following four violations within a year-period in 2014 and 2015, was also brought up as a parallel to Baffert's case.

In the final moments of Wolsing's cross-examination of the witness, Wolsing asked Borden if the ruling handed down to Baffert by the stewards for his four offenses in that year period was a penalization that she'd stand behind today. Borden was quick to respond, “Yes.”

After a brief break, Brewster began his questioning of Borden, focusing intently on the line drawn between what is considered a therapeutic medication and what is a prohibited medication, specifically in the case of the topical ointment Otomax, which contains betamethasone. Though she acknowledged that it is used therapeutically, Borden said that betamethasone is prohibited completely in a post-race sample, meaning it cannot be present in the horse's system at any level on race day.

Brewster also focused on Kentucky's out-of-competition rules, which center around out-of-competition testing's focus on finding substances that are never allowed in the horse, but does allow betamethasone as a therapeutic use, since those tests are not administered on race day.

Borden was adamant to point out that these rules only applied to out-of-competition testing, not testing completed on the day of a race, which strictly prohibits betamethasone.

Later on, Brewster questioned Borden about the Kentucky rules that offer different guidance of various medications based on method of administration, while also citing the differences in rules for non-steroidal anti-inflammatory drugs (NSAIDs) and corticosteroids (which is the category betamethasone falls under), as both are considered Class C medications.

He also cited the lack of detail that came with the 14-day stand down period, which was added in August 2020, and emphasized that it appeared to be “advisory” rather than firm. Brewster also noted the lack of limit or threshold listed, along with the absence of a stop or start time for the stand down period.

“There is no reference at all in a stand down definition that it is regulated by a lab test, is there?” he asked Borden.

“Not in this definition,” she replied.

Later in the day, Kentucky equine medical director Bruce Howard took to the witness stand, where he explained how the out-of-competition testing was handled prior to the 2021 Kentucky Derby, how testing was handled on race day, and what the process of collecting and sending out the post-race samples was like.

“We tested every horse in the Derby, even some that didn't draw in,” said Howard, when asked about the out-of-competition testing conducted.

It was during this time that Howard shared that pre-race testing of Medina Spirit, conducted Apr. 18, did not reveal any detection of betamethasone.

“I was a little surprised we didn't find it,” said Howard. “If it was being applied every day, I would've expected we'd still see it.”

When asked about his reaction to Medina Spirit's betamethasone positive in his post-race sample following his Derby victory by attorney Luke Morgan, representing the KHRC, Howard said, “I hate it when we have this happen. It leads to a lot of problems, obviously. My wish every year is for a good, safe, clean race.”

In terms of substances in the Kentucky rules that do not list a threshold for, Howard made it clear that they are not allowed at any level in the horse on race day, which follows guidance from the industry's Racing Medication and Testing Consortium and the model rules of the Association of Racing Commissioners International.

“Moving these drugs away from race day would give us a clearer picture when we did our race day exams,” Howard said, in response to a question about the stand down period rule change. “If there is a systemic level of corticosteroids or NSAIDs or any of these kinds of drugs, it doesn't matter how it gets in. Anything that can cause a systemic level in a horse concerns us.”

Rounding out the day's session, Brewster questioned Howard on the absence of betamethasone from the list of medications with detection thresholds, also citing a lack of matrix.

“If the medication is not listed with a threshold, it is a limit of detection drug,” replied Howard.

Brewster also brought up whether trainers were properly notified that there was a rule change, which established a zero tolerance of betamethasone, arguing they were not. Howard referenced the guidance from national and international bodies that study medication in racing, also pointing out that he offered his contact information for anyone who had questions concerning the new rule.

Howard ended his time on the stand, and the day's session, answering a few final questions presented by Morgan.

When asked if the route of administration of a drug mattered in terms of a positive finding of a banned substance on race day, Howard firmly replied, “No.”

The hearing in Frankfort, Ky., continues for a third full day beginning at 9 a.m. Wednesday and will move along with morning and afternoon sessions Thursday. If the hearing is not done by Thursday afternoon, it will resume next Monday.

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