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State regulators past and present believe Medina Spirit faces automatic disqualification if the Kentucky Derby winner’s positive drug test is confirmed by a split sample.
Clark Brewster says such a conclusion is “ill-informed” and “just flat-out wrong.”
The attorney for Medina Spirit’s owner, Amr Zedan, said Wednesday Kentucky stewards are obliged to use their discretion in assessing the colt’s treatment in Bob Baffert’s barn; that the treatment was both appropriate and immaterial to the outcome of the Derby; and that he has seen no statute requiring disqualification should the split sample confirm the presence of betamethasone in the horse’s blood.
Meanwhile, Dr. Mary Scollay, former equine medical director for the Kentucky Horse Racing Commission, remains insistent that “All (Class) C violations are mandatory, non-negotiable DQs.”
At issue, ostensibly, is the narrow legal distinction between the words “shall” and “must.” At stake is the Derby’s $1.86 million winner’s purse and all the other benefits that flow from finishing first in America’s most prestigious horse race.
PREAKNESS STAKES: Why is Medina Spirit still allowed to run?
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Kentucky’s administrative regulations governing thoroughbred racing say disqualification and loss of purse “shall apply” to Class C drug violations. While the suspensions and fines of trainers are subject to “mitigating circumstances,” owners are accorded no such wiggle room.
To Scollay and KHRC Executive Director Marc Guilfoil, among others, the statute is an unambiguous command. To Dictionary.com, “shall” and “must” are synonymous.
Yet to the U.S. Supreme Court, at least in its 1995 decision in Guitterez de Martinez v. Lamagno, “shall” is subject to divergent interpretations. To Bryan Garner, editor of Black’s Law Dictionary, “shall is among the most heavily litigated words in the English language.”
“We go to ‘may’ if we feel the need to leave it in the discretion of the commissions,” said Ed Martin, president of the Association of Racing Commissioners International, source of racing’s model rules. “When we use ‘shall,’ we feel it should be required.”
Ultimately, it will be up to the Kentucky stewards to interpret “shall,” assuming the split sample confirms Medina Spirit’s initial test. And it will be up to the attorneys for Zedan and Baffert to dissuade them from a disqualification that appears to be at least likely and possibly inevitable.
“You have to look at the culpability or the reasonableness of the trainer’s actions and whether there’s some mitigation involved – whether there’s an attempt to advance the horse speed-wise and performance-wise,” Brewster said. “And there’s no reasonable expert who would say that.
“Reasonable people use the judgment and discretion set forth in the rules. Not everybody gets the death penalty when something is alleged against them.”
Like Baffert, Brewster argues that the 21 picograms of betamethasone found in Medina Spirit’s blood could have had no bearing on the outcome of the Derby. He said regulators are “cannibalizing the sport with irrelevant data,” and that their concerns about injections of betamethasone before a race do not apply in this case because the substance was administered through an ointment to treat a rash.
Both rivals and regulators have expressed doubts about that narrative. According to Barry Irwin, owner of 2011 Derby winner Animal Kingdom, horsemen and veterinarians with whom he spoke “to a man believe that the positive finding is a result of Baffert’s Derby winner being injected in a joint ... too close to Kentucky Derby Day.”
Irwin conceded a lack of first-hand knowledge in an essay for the Paulick Report, but wrote, “The vets’ conjecture is that Baffert took a chance that the unpredictable and unreliable nature of the drug used would not rear its ugly head before the race and hopefully go undetected in the post-race analysis.”
At a minimum, neither Baffert nor Brewster have explained why an ointment containing betamethasone would have been prescribed and purportedly administered within a day of the Derby. Baffert’s veterinarian, Dr. Vincent Baker, did not immediately respond to interview requests.
Hagyard Equine Medical Institute’s Dr. Michael Hore, whose hiring Baffert announced last November, "to add an additional layer of protection to ensure the well-being of horses in my care and rule compliance," confirmed that the deal had fallen through.
"Following some initial discussions with Bob and one of my colleagues last fall – and his announcement regarding new procedures to ensure no further medication issues – our role in those procedures did not materialize as intended, because of travel and other restrictions related to COVID-19," Hore said via e-mail. "He is based in California, we are based in Kentucky. Beyond this I have nothing further to add."
This article originally appeared on Louisville Courier Journal: Medina Spirit faces disqualification. One word could make a difference