Wednesday’s court decision enjoining the New York Racing Association from banning Bob Baffert from racing or stabling at its facilities, including Saratoga, came as a major disappointment to the many racing fans hoping the trainer would finally face some accountability. While it is a short-term victory for the Baffert camp, the longer range implications are more troublesome for them.
NYRA suspended Baffert following the announcement that alleged Kentucky Derby winner Medina Spirit had tested positive for betamethasone, a medication prohibited in post-race tests in Kentucky. It was the fifth drug positive for a Baffert-trained horse in just one year, including three in Grade I races and a disqualification of Gamine — for the same drug — in last year’s Kentucky Oaks. Churchill Downs has suspended Baffert for two years from running at its track, although the Kentucky Horse Racing Commission has not yet made a final determination on this year’s Derby.
I am among those hoping that NYRA’s suspension would finally bring a measure of accountability to a trainer whose smug disregard of racing’s rules stands in stark contrast to the many top trainers who are able to win without cheating. When I praised NYRA in this post, I was writing as a fan. Unfortunately, my background as a lawyer, including experience with due process cases, should have informed me that the NYRA decision was problematic.
The United States District Court judge considering the case wrote an informed and comprehensive decision, and did it against a timeline of the Saratoga meet about to begin. The hearing in the case was Monday, and within two days she had issued a 28-page well-reasoned opinion.
The purpose of an injunction is to retain the status quo in a dispute while the merits of the case are litigated, utilizing the procedures designed to reach a just and informed decision. It is not a final decision on the underlying merits of NYRA’s suspension, but practically it is final on the more limited question of whether NYRA must give Baffert a hearing on whether he should be suspended.
Baffert’s attorneys argued that NYRA is a “state actor” and, as such, could not deprive Baffert of his right to participate at NYRA facilities without affording him the “due process” right of a hearing as guaranteed by the United States’ Constitution. NYRA argued that it was a private, not public, entity and could act as Churchill Downs did in barring Baffert without a hearing. Baffert further argued that only the New York Gaming Commission had the authority to suspend Baffert, and that NYRA had no such ability.
While the Court concluded that NYRA was indeed a state actor and subject to the requirements of the Constitution’s due process provisions, it also decided NYRA had the authority on its own to take action against Baffert: “it is not likely that Baffert will be able to prevail on his claim that NYRA had no legal authority to take the action that it did.” This represents a major defeat for Baffert.
It is not surprising that Baffert’s attorneys sought to get the case into the Gaming Commission. This body is not what would be considered the one of the world’s greatest deliberative bodies. It has been mulling over possible changes to the usage of the whip since 2015 (sic) and in October, 2020, had a special meeting to resolve the matter — as so many other jurisdictions have done (albeit not uniformly). They are now approaching six years without doing anything since they first decided to do so. It can take years to resolve trainer disciplinary matters. If Baffert’s attorneys ever listened to one of the body’s eight-minute long meetings disposing of a half-dozen agenda items with no discussion they had to salivate over the possibility of getting his case there.
As unsurprising as the effort by Baffert to get the case to the moribund Gaming Commission was, it is puzzling why NYRA’s attorney sought to deny Baffert any form of a due process hearing. In a case as fiercely contested case as this one is, the easy out for a court — and I am not suggesting that was this Court’s motivation — is to require a hearing and later decide whether a suspension is justified without a claim of deprivation of a constitutional right clouding the important matter.
So NYRA should give Baffert a notice with specific charges and then schedule a hearing. While they may have been averse to a hearing for reasons that escape me, putting Baffert under oath on this and prior transgressions has its own benefit. As just one example of a possibly fruitful avenue of inquiry — and one that is clearly relevant — is the level of scrutiny he applies to treatments by veterinarians.
Baffert has escaped meaningful consequences for far too long. The Washington Post detailed the efforts he has undertaken over the years to minimize his transgressions. That he has become the face of horse racing is a great disservice to the trainers and owners who have tried to do the right thing. It also jeopardizes the livelihoods of the many thousands of individuals who are dependent on the racing industry and have no connection to his behavior or that of other industry scofflaws.