Opinion: Bob Baffert and the ol’ razzle-dazzle

Justify and Bob Baffert at Pimlico. Photo by Dottie Miller.

If social media is any guide – and, well, maybe it’s not – then Bob Baffert’s legal team has done the most creative bit of lawyering since Billy Flynn gave ‘em the old razzle-dazzle in Chicago.

The legal eagles haven’t had much impact where it matters, however, and this non-lawyer’s surmise is that streak of tough luck will continue.

Baffert, the Hall of Fame trainer, has taken his lumps of late. First, the Kentucky Horse Racing Commission (KHRC) stewards voted to disqualify Medina Spirit for his betamethasone positive in last year’s Kentucky Derby and to slap Baffert with a 90-day suspension.

Then, in an insult-to-injury decision, the KHRC declined to issue a stay of the suspension pending appeals.

The KHRC “did not find good cause” to delay the suspension, KHRC director Marc Guilfoil wrote. Maybe the protracted legal wrangling that led to a nine-month delay in issuing a ruling had something to do with that response.

Commissions typically stay suspensions pending appeals, but not always. In one high-profile 2019 case, for example, the Delaware Thoroughbred Racing Commission denied often-in-trouble trainer Marcus Vitali’s request to stay a suspension.

Baffert and Amr Zedan, Medina Spirit’s owner, have asked a Kentucky Circuit Court to stay the ruling pending their appeal of the underlying decision. They may win on this narrow matter, but the KHRC appears to hold the upper hand on the more significant questions.

Baffert’s legal team claims that Kentucky doesn’t regulate the type of betamethasone found in Medina Spirit’s system, that the betamethasone was transmitted through an ointment rather than via an injection, and that the amount of betamethasone found in the horse’s system could not have affected the outcome of the race.

Many around racing are now authoritatively declaiming on the difference between betamethasone acetate – found in the injectable drug – and betamethasone valerate – found in the ointment Otomax. That’s a testament to how effective Team Baffert has been in the court of public relations.

It didn’t work before the KHRC, though, and we suspect it’s not likely to work in the court system. 

It’s certainly true that the regulations discuss, as Baffert’s lawyers have pointed out, when betamethasone can be delivered by injection. It’s also true that there is no provision specifically prohibiting betamethasone valerate.

And it’s true that the regulations permit the use of ointments, as long as those ointments do not contain “any drug, medication, or substance otherwise prohibited” by the regulations.

But that’s not the most important part of the story.

The regs also – and most importantly – say this: “Except as expressly permitted [in the regulations], while participating in a race (betting or non-betting), qualifying race, or time trial, it shall be a violation for a horse to carry in its body any drug, medication, substance, or metabolic derivative, that:

(a) Is foreign to the horse; or

(b) Might mask the presence of a prohibited drug, or obstruct testing procedures.”

In other words, “If we don’t explicitly allow the drug, it is prohibited.”

You’ll make yourself cross-eyed before you find a provision permitting the use of betamethasone valerate in the rules. Trust me: I tried.

Like a lot of laws and regulations, the KHRC’s regulations are a bit of a mess and at times ambiguous. That helps create the uncertainty that Baffert’s lawyers seek to exploit.

But the above provision is quite clear. If it ain’t listed, it ain’t allowed.

There’s a fair discussion to be had whether racing’s regulations accomplish what they should, whether the penalty systems make sense, whether and how to penalize minor overages of therapeutic medications.

But all of those questions are properly hashed out at the policy-maker level, not in a court of law. 

The relevant facts that will be before the court in this case are: 1) Medina Spirit had betamethasone in his system; 2) betamethasone is a drug that’s foreign to the horse and is thus prohibited; and 3) a betamethasone positive triggers a disqualification and other penalties.

The other stuff – whether the drug affected the outcome of the race, how it was administered, what the rules say about withdrawal times for injected betamethasone, etc. – amounts to noise.

Or, more precisely, the old razzle-dazzle.