Baffert threatens suit in effort to overturn Churchill Downs ban

Seven months since Churchill Downs Inc. imposed a two-year ban on Hall of Fame trainer Bob Baffert, the other horseshoe has dropped.

Baffert's attorneys have drafted a complaint that has been shared with track management in pursuit of a settlement that would enable Baffert to compete in the 2022 Kentucky Derby on May 7.

The draft, first reported by the New York Times, has not yet been filed. Attorney Clark Brewster, who represents Baffert, said a copy was sent to the counsel for Churchill Downs Inc. CEO Bill Carstanjen "for discussion."

Carstanjen's reply, as reported by the Times, would indicate discussions have already reached a dead end.

"The threatened lawsuit is yet another tactic from Mr. Baffert's well-worn playbook of obfuscating the facts, inventing excuses to explain positive drug tests and attempting to blame others to avoid responsibility for his own actions," Carstanjen said.

Brewster told the Courier Journal an abbreviated conference between the parties was held last week and "viewed with optimism by all involved." He said a second conference had been scheduled for 4 p.m Monday, but that he received a copy of the New York Times story quoting Carstanjen's condemnation of his client just one minute before the meeting was to start.

"At this point," Brewster said, "we will need our Court system to explain to Mr Carstanjen that facts and controlling law have meaning."

Carstanjen announced the two-year ban on June 2, a month after Baffert's Medina Spirit won the Kentucky Derby only to test positive for betamethasone. The positive test was Baffert's fifth in a 365-day span and his second in a significant stakes race at Churchill Downs. His star filly, Gamine, had tested positive for betamethasone in the 2020 Kentucky Oaks.

More: In death as in life, Kentucky Derby winner Medina Spirit still matters

Baffert's attorneys contend Medina Spirit's positive was the product of a topical ointment rather than an injection, a claim they say has been vindicated by the results of recent testing overseen in New York by Dr. George Maylin.

"The Kentucky Racing Commission has steadfastly enacted rules related to corticosteroid joint injection and have drawn a bright line rule that no injections are permitted within 14 days of a race," Brewster said in a statement published on the web site of Medina Spirit's owner, Amr Zedan.

"Now there is zero doubt that the 14-day rule some thought might have been violated by the earlier less specific testing is revealed as premature judgment. That groundless accusation is without scientific merit. Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory."

Brewster's assertion is at least premature. Kentucky regulators past and present have insisted the source of the betamethasone is irrelevant; that its mere presence in a race-day sample is grounds for disqualification.

"How it got into the horse does not negate that it was in the horse," says Dr. Mary Scollay, executive director of the Racing Medication and Testing Consortium and former Equine Medical Director for the Kentucky Horse Racing Commission (KHRC). Scollay says the presence of betamethasone means a "non-negotiable" disqualification.

More: Bob Baffert's lawyer: Medina Spirit's test proved betamethasone was topical, not injected

Yet more than eight months since Derby 147, Medina Spirit is dead of an as-yet undetermined cause and Kentucky stewards have yet to hold a hearing to resolve the race. Court records show no new filings in the last five months in the lawsuit that led to the additional testing by Dr. Maylin, effectively delaying Franklin County Judge Thomas Wingate's announced intention to eventually remand the case to the stewards.

A court spokesman said Maylin's report has not yet been filed with the court. The KHRC declined to provide a copy to the Courier Journal, citing a state statute that exempts agencies investigating regulatory violations "if the disclosure would harm the agency by. . .premature of release of information to be used in an administrative adjudication."

"Releasing the report at this time could lead to interference with the KHRC’s ability to interview witnesses and obtain uncorrupted and unbiased information from them," KHRC spokeswoman Kristin Voskuhl wrote. "The stewards may wish to interview witnesses and/or receive testimony from witnesses who would not otherwise be aware of the report’s contents, except for what they read in the media."

Meanwhile, Baffert's team is headed toward a Jan. 24 hearing in which the New York Racing Association will revisit the grounds for a suspension that was initially overturned because of a lack of due process. Based on a Carstanjen comment to the Times, the trainer's legal issues could also include a countersuit.

"We are considering any and all legal options available to us to set the record straight and ensure Mr. Baffert is held accountable for all the reputational damage he has caused us," Carstanjen is quoted as saying. "The irony is not lost on us that despite all of his violations, he is the one threatening to file lawsuits claiming to be aggrieved."

Numerous racing executives contacted by the Courier Journal do not expect Churchill to make concessions absent a court order.

But with 13 of the 37 Kentucky Derby qualifying races having already been run, and Baffert's clients ineligible to accumulate qualifying points toward Derby 148, further litigation appears likely.

"I continue to hold out hope that Mr. Baffert will finally take responsibility for what has occurred under his care and on his watch and we can move on to what we should really be focused on, namely hosting the 148th running of the Kentucky Derby in just a few short months," Carstanjen told the Times. "Until then, we will fight to defend our rights, our reputation, the integrity of Churchill Downs and, most importantly, the safety of these horses."

As if to signal the track's intractability, the numerous plaques commemorating Baffert's many achievements have been removed from Barn 33 on Churchill's backside.

"Mr Baffert requested that we thoroughly research the law and reach out to Mr Carstanjen," Brewster said. "All efforts to have any discussion with him or Churchill was previously ignored or rebuffed, including calls from Mr Baffert. . .

"It will be Mr Carstanjen’s role to explain the purpose for abandoning all basic due process, all procedures under the Kentucky Rules of Racing, and his edict to single out Mr. Baffert to the exclusion of all other trainers, some who train for Churchill Board members past and present, who have experienced numerous reported and confirmed medication post-race positives. Looking forward to his performance."

Tim Sullivan: 502-582-4650, tsullivan@courier-journal.com; Twitter: @TimSullivan714

This article originally appeared on Louisville Courier Journal: Bob Baffert fighting ban by threatening suit against Churchill Downs.