LOUISVILLE, Ky. (WDRB) – Whether trainer Bob Baffert will be able to run horses in Kentucky Derby 149 this May is now in the hands of U.S. District Court judge Rebecca Grady Jennings after more than three hours of testimony on Friday, much of it from the Hall of Fame trainer himself.
Baffert has asked the court for a temporary injunction striking down a 2-year suspension imposed by Churchill Downs after Medina Spirit tested positive for betamethasone following the 2021 Kentucky Derby.
The Kentucky Horse Racing Commission disqualified Medina Spirit as winner of the 2021 Derby in February of last year. But well before that, in June of 2021, Churchill Downs suspended Baffert from training or racing horses at any of its properties for a period of two years.
Baffert, who did not have a horse in last year’s Derby under his own name, is arguing that he was denied due process before that suspension was handed down, that he was irreparably harmed by the suspension and would continue to be harmed if kept out of this year’s Derby.
Churchill Downs says that, as a private business, it has a right to suspend trainers, and that Baffert did great harm to its marquee races with positive betamethasone tests in the 2020 Kentucky Oaks with third-place finisher Gamine and with Medina Spirit in the Derby the following spring. It also argues that he did further damage to the race with his subsequent comments in the media.
After yesterday’s hearing, Baffert said he that he was glad he could convey his version of events in a courtroom setting.
“I think today was great, because I finally got to tell my story in a non-biased atmosphere,” Baffert said. “And I think, you know, I’m hoping for the best and hopefully we'll be here (in the Derby).”
Baffert’s attorney, Clark Brewster, peppered Churchill Downs president Mike Anderson with detailed questions about a meeting among the track’s executive leadership and counsel when it decided to suspend Baffert. After the hearing, Brewster expressed surprise, again, that the track had no process in place for handling the suspension, gave him no chance to defend himself, nor even have a conversation with those making the decision.
“They knew nothing,” Brewster said. “And hopefully now, after they've reviewed the materials and the testimony, somewhere along the way, somebody will have the integrity and the honesty to do the right thing and get rid of this so-called suspension. It's completely without a foundation. . . . It's unfortunate, because it took us 20 months just to get before them (Churchill Downs) and tell them what we knew about the circumstances and what the rules were. It should have happened the day before they announced any kind of action. But they didn't wait for the Kentucky Racing Commission. They didn't get any materials. They didn't interview Bob. They didn't talk to any veterinarians. They just heard a press conference and lashed out.”
Jennings said she would return a ruling on Baffert’s request for temporary injunction and a Churchill request to dismiss the case “in a period of time.” There is some urgency for Baffert. Owners who want their horses to earn points in Kentucky Derby prep races must move them by Feb. 28, according to Triple Crown nomination guidelines.
BAFFERT ON THE STAND
Baffert’s time on the stand under questioning from Churchill Downs attorney Orin Snyder was, at times, difficult. He claimed not to have made or not to remember making statements that he made in a taped conversation with Kentucky Horse Racing Commission chief steward Barbara Borden shortly after he was informed of Medina Spirit’s positive test.
Asked if he made a statement during the taped call with Borden, “We never use betamethasone, we’re not that stupid,” Baffert said he didn’t recall. The defense then played the tape.
Bob Baffert outside the federal courthouse in Louisville on Friday, Feb. 3, 2023.
Asked if he at one point called Kentucky a cesspool in hinting at a possible conspiracy around his barn or horse, he said, “I don’t remember saying ‘cesspool.’ I love Kentucky.” Snyder then played the tape, on which Baffert said, “Kentucky is a cesspool. I’m really down on Kentucky right now.”
Asked if he said, “We don’t touch that. We don’t use any ointments,” Baffert responded, “It was such a crazy moment. I can’t recall. . . . I was treating a serious fungal infection. I did the humane thing.”
“My state of mind was just off the charts. I was in a pretty defensive mode,” Baffert said at one point. “I knew we had not injected this horse. . . . My mind was going 100 miles per hour. . . . My mind was crazy. I was just talking. . . I was rambling.”
Snyder then turned to Baffert’s comments to various media outlets after he was informed of the positive test. He challenged Baffert on comments to Dan Patrick’s radio show that no “creams” were used in the barn.
“That was untrue, right?” Snyder asked.
“After the fact, yes,” Baffert responded.
Snyder challenged Baffert’s blaming of “cancel culture,” to which the trainer replied, “Yes. They were probably the wrong choice (of) words.”
“Your words,” Snyder said, “caused widespread public ridicule and mockery of the Kentucky Derby.”
The attorney referenced a skit about Baffert and the Derby on Saturday Night Live, and showed an article quoting animal rights activists calling Baffert the “Lance Armstrong of horse racing.”
“Whatever,” Baffert said. “I’ve been called a lot of things. . . Animal activists. I can see that from them.”
Finally, Snyder challenged Baffert’s assertion that Churchill Downs’ ban from the Derby would, “effectively put me out of business,” nothing that Baffert has won more than $12 million in purses, including more than a million in Kentucky, since the suspension went into effect. The defense noted that only 3.8 percent of all Baffert’s entries from 2016 to 2020 were in Kentucky races (it did not share what percentage of his winning purses came from the state).
Of the state of his operation, Baffert said, “I’ve just been hanging on. I’ve been lucky. I had to let a lot of people go (at one point.)”
“But you’re not out of business are you?” Snyder asked.
“I’m still in business,” Baffert said.
TIME IS CRITICAL
Difficult as that period was, the court will have to determine the extent to which Baffert is harmed by not being able to train horses for the Kentucky Derby, given that he said that the foundation of his program is, “All about the high-end horses, picking them out, buying them, trying to get them to the Kentucky Derby and the (Triple Crown) classic races. It has taken 25 years to get my barn to this strong position.”
The judge will also have to determine whether Churchill Downs is acting as a private business or as a de facto agent of the state in its role of administering races and in sanctioning Baffert. A private entity faces a lower standard of due process than a state agency.
And the judge must conclude that Baffert’s claims have a reasonable chance of victory, in order to issue the temporary injunction.
Anderson said in his testimony that Churchill decided to suspend Baffert after he had positive tests in its two biggest races – the Kentucky Oaks and Kentucky Derby – for the same drug in successive years.
Pressed by Brewster that the two positives were under far different circumstances – in the case of Oaks third-place finisher Gamine, an injection of the drug within the allowed window that nonetheless resulted in a positive versus Medina Spirit, in which an ointment is alleged to have produced an unexpected positive – Anderson did not get into the differences but merely referenced two positive tests. He also testified that Churchill officials were concerned about allegations that a drug positive with Baffert’s colt Justify were not properly heard before the 2018 Kentucky Derby.
The California Horse Racing Board later found that Justify, along with horses in other barns, had tested positive after ingesting jimson weed in hay.
Brewster was incredulous that Justify’s situation would’ve played into a suspension of Baffert with no chance for the trainer to speak in his own behalf.
The hearing briefly came to a pause after Brewster continually asked Anderson legal or procedural rules questions that he said he could not answer.
“They talk about the damage this positive (result) turned out for Churchill Downs, they created it,” Brewster said afterward. “If they had, in the light of day and knowledge, made a decision, we wouldn’t be here.”
“If they had the decency just to talk to me about it afterwards,” Baffert told reporters. “We could have sat down, explained what happened. We knew what happened within 48 hours. And maybe we wouldn’t be standing here.”
A CALL FROM TRUMP
In court, after Baffert’s testimony, Brewster asked for one more moment. He wanted Baffert to relay a story about a phone call he received from then-president Donald Trump. Baffert said he got a call telling him that if he received a call from a Palm Beach number, to pick it up. He did, and it was Trump on the other end.
“’Is this Bob Baffert?’” the trainer said the voice on the other end said. “’This is Donald Trump.’ I thought it was a joke at first. But it was his voice. He said, ‘I respect D. Wayne Lukas – respect him a lot. I like the way he defended you.’ . . . He asked what happened and I explained.”
Baffert told him he was used to dealing with horse racing writers, but not the national media he was facing.
“He said people can be vicious, but go on, and do your job,” Baffert said. “I thought it was pretty cool.”
Baffert has a number of Derby contenders set to begin their Derby preps, including Cave Rock and National Treasure, who ran second and third in last year’s Breeders’ Cup Juvenile. Those colts figure to vie for the Derby, whether Baffert is there or not. He’s hoping to be there, and says his relationship with Churchill Downs can be mended, if he is.
“I think it would be like it was before,” Baffert aid. “I've always had a good relationship with them.”
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