Medina Spirit DQ Appeal Takes Deep Dive Into KHRC Rules

As attorney Clark Brewster repeatedly questioned Kentucky chief steward Barbara Borden about Kentucky Horse Racing Commission rules defining violations for findings in out-of-competition testing in relation to betamethasone, she repeatedly answered that those rules are standards for out-of-competition tests as opposed to post-race testing. Such exchanges proved the norm Aug. 23 while hearing officer Clay Patrick, a Frankfort attorney, listened to Borden's nearly five hours of testimony as attorneys for Medina Spirit's owner, Zedan Racing Stables, and trainer Bob Baffert appeal the horse's 2021 disqualification from victory in the Kentucky Derby Presented by Woodford Reserve (G1) after he tested positive for betamethasone in a post-race test. As they appeal the stewards' February ruling that had the horse disqualified—costing the owner a $1.86 million purse—and resulted in Baffert's being suspended for 90 days and fined $7,500, Brewster, representing the horse's owner, attempted to establish through questioning that Kentucky rules are vague. Borden began the day at 9 a.m. by answering questions from KHRC general counsel Jennifer Wolsing, who in that line of inquiry worked to establish that the stewards applied the rules fairly in making their decision on Medina Spirit. Borden said in reaching their decision the stewards considered mitigating and aggravating circumstances. After the hearing concludes, it's expected that Patrick will take some time before issuing a decision. The KHRC can then consider that decision and whether to accept it. Any further appeals would be conducted in court. In questions directed to Borden, Brewster asked her about a line in the rules that he argued suggests that therapeutic medications such as the topical ointment Otomax are allowed to be used as they are therapeutics and not prohibited substances, which he defined as substances that are not allowed in a horse. Borden said that on race day, betamethasone becomes a prohibited substance as it is not allowed in the horse at any level. She cited the state's classification schedule that lists betamethasone as a Class C violation. Earlier in the testimony, Brewster read a long portion of Kentucky's out-of-competition rules that note that betamethasone is allowed in a horse's system. That resulted in the aforementioned exchange of Borden repeatedly noting that those are the standards for out-of-competition testing, which focus on finding substances that are not ever allowed in the horse. Betamethasone is a recognized therapeutic and would be allowed in an out-of-competition test, as those are not conducted on race day. Borden emphasized that on race day, betamethasone is not allowed in the horse's system, again citing the classification schedule. Brewster also asked Borden about some medications in the Kentucky rules that offer different guidance based on method of administration. Borden acknowledged that, but again noted that betamethasone is listed as a Class C substance that cannot be found in a horse's system on race day. Like many states, Kentucky rules outline policies but also offer guidance on therapeutic administrations for horsemen to allow them to avoid failed tests. Earlier in the day, Borden was questioned by Wolsing, who asked questions that took a step-by-step look at how the stewards settled on their decision and sanctions. Borden said the stewards considered both mitigating and aggravating circumstances in reaching it. Foremost of those aggravating circumstances were sanctions following failed tests of two Baffert horses in Arkansas and one in Kentucky during the year before the 2021 Derby. Borden noted that most prominent of those previous positives was a betamethasone finding for Baffert-trained Gamine following the Longines Kentucky Oaks (G1) in September 2020. "That was probably the one that guided us the most," Borden said. Asked if she could find a previous case similar to Baffert's, Borden cited a Kentucky-based trainer who had four positives—like Baffert in their view, two Class C and two Class B—who received a 180-day suspension and was referred for review of his license. She said that trainer received a harsher penalty because all of the violations occurred in Kentucky, and she thinks they occurred in a shorter period of time than Baffert's positives. Later in the day under questioning from Brewster, Kentucky equine medical director Bruce Howard said that substances in the Kentucky rules that do not list a threshold are not allowed at any level in the horse on race day. He said the rule is in line with guidance from the industry's Racing Medication and Testing Consortium and the model rules of the Association of Racing Commissioners International. Brewster demanded that Howard show him the specific rule in Kentucky, and Howard repeated his answer referring to the ARCI and RMTC as well as the rules for being at detection level when thresholds are not listed. As Brewster further asked for a specific rule in Kentucky and Howard provided similar answers, Patrick stepped in to note that he understood Brewster's point. In taking testimony from Borden, Wolsing at one point presented results of a review of positives for betamethasone that noted that since Aug. 25, 2020, only two horses had tested positive for the corticosteroid and both were trained by Baffert: Gamine and Medina Spirit. As the KHRC largely has taken the position that the route of administration of the betamethasone is not important, it has not spent much time challenging the appellants' position that the Medina Spirit positive was caused by an application of the topical ointment Otomax. But Howard provided some potentially interesting testimony along these lines when he said pre-race testing found no betamethasone in the horse's system. In testimony Monday it was established that in treating a rash, Otomax was applied each day from the time it was prescribed in California, "on or about April 9," and was administered each day through the day before the Derby, April 30. On Tuesday Howard said that pre-race testing was conducted on all of the Derby horses, including Medina Spirit in California. While those out-of-competition tests focus on finding banned substances—as opposed to therapeutic medications—Howard said that after the Medina Spirit post-race positive for betamethasone, the racing commission requested the findings of his pre-race test relative to that corticosteroid. In answering questions from attorney Luke Morgan, representing the KHRC, Howard said no betamethasone was found in that pre-race test from April 18. "I was a little surprised that we didn't find it," Howard said. "If he was having it applied every day, I would have expected that we would have seen it." During Wolsing's questioning of Borden, she asked the chief steward about her initial reaction when she learned that a Derby horse had failed a post-race test. "I'm not happy when there is any medication positive," Borden said. "This one in particular, I knew there would be a lot of publicity and would be bad for racing in general. I thought it would be drawn out, and it has been." The hearing will continue for a third full day beginning at 9 a.m. Wednesday—480 days after the actual race.