Appeal filed and Attorney Clark Brewster on Bob Baffert and the Medina Spirit positive test for betamethasone

February 28, 2022

Bob Baffert appeals deny of a stay pending appeal citing denial puts him out of business

Clark Brewster weighs in on Bob Baffert, Medina Spirit, the Kentucky Derby disqualification and betamethasone

Bob Baffert attorney Clark Brewster took to social media, specifically his Twitter account, @cbrew1 to express some bullet points regarding Bob Baffert, Medina Spirit, and betamehasone. The following is from Clark Brewster via Twitter:

For those who genuinely seek facts and fairness in the Baffert/Medina Spirit controversy. Here are some irrefutable points.

Clark Brewster on Medina Spirit
Clark Brewster via Twitter account @cbrew1

Before you judge Bob Baffert or deny Medina Spirit’s great Kentucky Derby win, please consider the following.

Clark Brewster medina Spirit Fact sheet
Via Twitter @cbrew1

Brewster and attorney Craig Robertson of Lexington Kentucky have appealed the deny of a stay by the KHRC in Franklin County Court. If a stay in not granted Bob Baffert would have to serve a 90 day suspension which would be reciprocal in most if not all racing jurisdictions in the US. Stays pending appeal are routinely and generally granted pending appeals as if the appeal is won, irreparable harm would have been done by denying the stay.

As it stands now, pending appeal, the suspension will run March 8 through June 5. That would also cover the Preakness which is scheduled to be run two weeks after the Kentucky Derby and on May 21st, 2022.

Because this suspension is a KHRC ruling it will be reciprocal while the Churchill Downs ban of two years is optional.

Bob Baffert is based in California and the ramifications of this suspension will have an impact on the entire team and barn including the horses, owners, and employees.

CHRB rule 1484, pertaining to “Evidence of Unfitness for License reads as follows:

“If any applicant for a license or any licensee is under suspension, set down, ruled off, excluded from the inclosure, or otherwise barred from any racing occupation or activity requiring a license, it is prima facie evidence that he or she is unfit to be granted a license or unfit to hold a license or participate in racing in this State as a licensee during the term of any suspension or exclusion from racing imposed by any competent racing jurisdiction.”

“This includes, but is not limited to, ensuring that horses are not transferred to licensed family members or to any other licensee who has been an employee of the licensee whose license is revoked within the previous year,” the rules state.

Furthermore, trainers suspended 60 days or more are banned from all CHRB premises, for example, and must forfeit their stalls and remove from their barn areas all “signage, colors, advertisements, training-related equipment, tack, office equipment, and any other property.”

In essence, a suspension of 60 days or more disbands the barn.

Following is the appeal filed today and the supporting documents:

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION II
CIVIL ACTION NO. 21-CI-00456
ELECTRONICALLY FILED

BOB BAFFERT PLAINTIFFS
AND ZEDAN RACING STABLES, INC

v.

KENTUCKY HORSE RACING
COMMISSION DEFENDANT

        MOTION TO STAY AND/OR FOR TEMPORARY INJUNCTION

   Come the Plaintiffs, Bob Baffert and Zedan Racing Stables, Inc., by counsel, and pursuant

to KRS 230.320(2)(f) and Civil Rule 65.04, hereby move the Court for entry of an Order and/or a

Temporary Injunction against the Defendant, the Kentucky Horse Racing Commission, staying the

enforcement of the penalties contained within Stewards Rulings 21-009 and 21-0010 pending the

appeal of those rulings. A Memorandum of Law in support of Plaintiffs’ Motion is attached hereto.

                                       NOTICE

   This Motion shall come on for hearing before the Franklin Circuit Court as soon as counsel

may be heard.
Respectfully submitted,

                                             /s/ W. Craig Robertson, III
                                             W. Craig Robertson, III
                                             wrobertson@wyattfirm.com
                                             Thomas E. Travis
                                             ttravis@wyattfirm.com
                                             Lexy Holland
                                             lholland@wyattfirm.com
                                             WYATT, TARRANT & COMBS, LLP
                                             250 W. Main Street, Suite 1600
                                             Lexington, KY 40507
                                             859-233-2012
                                             Counsel for Plaintiff Bob Baffert

                                             and

                                             /s/ Clark Brewster
                                             Clark Brewster
                                             2617 E. 21st Street
                                             Tulsa, OK 74114
                                             Counsel for Plaintiff Zedan Racing Stables, Inc.



                                 CERTIFICATE OF SERVICE


   This is to certify that I electronically filed the foregoing via the Court’s electronic filing

system on this the 28th day of February, 2022. I further certify that this Motion will be served
upon the following by email per agreement:

Jennifer Wolsing, General Counsel
Kentucky Horse Racing Commission
4063 Iron Works Parkway
Building B
Lexington, KY 40511

                                               /s/ W. Craig Robertson, III
                                               Counsel for Plaintiffs

100704639.1 
COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION II
CIVIL ACTION NO. 21-CI-00456
ELECTRONICALLY FILED

BOB BAFFERT PLAINTIFFS
AND ZEDAN RACING STABLES, INC.

v.

KENTUCKY HORSE RACING
COMMISSION DEFENDANT

              MEMORANDUM IN SUPPORT OF PLAINTIFFS’
         MOTION TO STAY AND/OR FOR TEMPORARY INJUNCTION

    Come the Plaintiffs, Bob Baffert (“Baffert”) and Zedan Racing Stables, Inc. (“Zedan”), by

counsel, and hereby move the Court, pursuant to KRS 230.320(2)(f) and CR 65.04, for entry of an

Order and/or Temporary Injunction against the Defendant, the Kentucky Horse Racing

Commission (the “KHRC”), staying the enforcement of the penalties contained within Stewards

Rulings 21-0009 and 21-0010 pending the appeal of those rulings. In support of said Motion,

Plaintiffs state as follows:

                                  INTRODUCTION

    On May 1, 2021, MEDINA SPIRIT—trained by Baffert and owned by Zedan—won the

147th Kentucky Derby at Churchill Downs Race Track in Louisville, Kentucky. Following the

Kentucky Derby, blood and urine samples were collected from MEDINA SPIRIT. Several days

later, Plaintiffs were informed by the KHRC that MEDINA SPIRIT’s primary sample allegedly

tested positive for 21 picograms of betamethasone. This trace amount is pharmacologically

insignificant and would have zero impact on the horse or race.
Most importantly, the KHRC rules related to betamethasone are clear. It is an allowable

medication and the rules only limit its use in its injectable form (betamethasone acetate). There

are no rules prohibiting betamethasone in its topical form (betamethasone valerate). Baffert’s

contention has always been that MEDINA SPIRIT was never injected with betamethasone and

that the positive test was the result of the topical administration of an ointment called OTOMAX,

which was prescribed by a veterinarian to treat a skin rash on the horse, all as allowed under the

KHRC rules. As a result, on June 16, 2021, this Court ordered additional testing on MEDINA

SPIRIT’s urine sample to determine whether the horse was injected with betamethasone or merely

received a topical ointment.

   Pursuant to the Court’s direction, the parties agreed on the New York Equine Drug Testing

& Research Laboratory and MEDINA SPIRIT’s urine sample was transported by representatives

of both parties and hand-delivered to world-renowned Dr. George Maylin, the Director of the

laboratory. On December 3, 2021, Dr. Maylin issued his report by way of letter addressed to

counsel for both Baffert and the KHRC. Said report was unequivocal in finding that the

betamethasone in MEDINA SPIRIT came from a topical ointment (betamethasone valerate) and

not from the injectable form of betamethasone (betamethasone acetate). (See New York Equine

Drug Testing and Research Laboratory report attached hereto as Exhibit A). Additionally, Dr.

Maylin provided an Affidavit summarizing the results which concluded, “it is my opinion that the

finding of betamethasone in the official (a) and (b) samples collected from MEDINA SPIRIT by

the Kentucky Horse Racing Commission following the 2021 Kentucky Derby resulted from the

topical administration of Otomax and not an injection of betamethasone.” (See Affidavit of Dr.

Maylin attached hereto as Exhibit B).

                                            2

Shockingly, despite the fact that the entire purpose of the Court Ordered examination of

MEDINA SPIRIT’s urine was to determine whether or not there was rules violation, the KHRC

Stewards ignored the scientific findings. On February 21, 2022, the KHRC Stewards issued Ruling

numbers 21-009 and 21-0010 which disqualified MEDINA SPIRIT as the winner of the 2021

Kentucky Derby and imposed a 90-day suspension and $7,500.00 fine on Baffert. (See Stewards

Rulings attached hereto as collective Exhibit C). The Stewards offered no explanation as to the

rationale for their decision.

    Worse, the KHRC has refused to follow standard procedure and stay the Stewards Rulings

pending appeal. By their terms, the Stewards Rulings are set to go into effect on March 8, 2022.

Absent a stay of the Stewards Ruling before March 8, 2022, the Plaintiffs will suffer immediate

and irreparable harm. For the reasons that follow, this Court should stay Stewards Rulings 21-

0009 and 21-0010 pending the appeal of those rulings either pursuant to KRS 230.320(2)(f) or

Civil Rule 65.04.

                             FACTUAL BACKGROUND

    Baffert is unquestionably the most accomplished trainer in the history of thoroughbred

racing. Objectively, he has consistently been recognized for excellence and as one of the most

positive influences on horse racing throughout the course of his 46-year career. Some of his most

notable accomplishments include:

   In 1997, Baffert was awarded the Mr. Fitz Award by the National Turf Writers and
    Broadcasters’ Association. This honor is awarded to an individual or group who typifies
    the spirit of racing.

   In 1998, Baffert was awarded the Big Sport of Turfdom Award by the Turf Publicists of
    America. This award is given to a person or group who enhances coverage of thoroughbred
    racing through cooperation with the media and racing publicists.




                                           3

 In 1997, 1998, 1999, and 2015, Baffert earned the Eclipse Award, presented by the
National Turf Writers and Broadcasters’ Association for being the nation’s most
outstanding trainer.

 In 2007, Baffert was inducted into the Lone Star Park Hall of Fame.

 In 2009, Baffert was inducted into the Thoroughbred Racing Hall of Fame.

 In 2010, Baffert was inducted into the Arizona Sports Hall of Fame.

 In 2010, Baffert was named a University of Arizona Hispanic Alumni Portraits of
Excellence Honoree.

 In 2015, Baffert was named March of Dimes Sportsman of the Year.

 In 2018, Baffert was inducted into the Kentucky Sports Hall of Fame.

(See Affidavit of Bob Baffert at ¶ 2, attached hereto as Exhibit D).

   On May 1, 2021, MEDINA SPIRIT won the 147th Kentucky Derby, and blood and urine

samples were collected shortly after the race. (Amended Complaint at ¶ 13). On May 8, 2021,

the Plaintiffs were informed by the KHRC that MEDINA SPIRIT’s primary sample allegedly

tested positive for 21 picograms of betamethasone. (Id. at ¶ 15). This trace amount is

pharmacologically insignificant and would have zero impact on the horse or race. (Id.; See

Affidavit of Dr. Steven Barker, ¶ 8, attached hereto as Exhibit E).

   Betamethasone is not a banned substance; in fact, it is approved by the U.S. Food and Drug

Administration and recognized by the Racing Medication Testing Consortium and Association of

Racing Commissioners International as a valuable therapeutic substance and is included on their

Controlled Therapeutic Medication Schedule. (Id.). It is commonly administered to horses to

reduce inflammation. (Id.).

   The Kentucky Horse Racing Commission labels betamethasone as a Class C substance.

(Amended Complaint at ¶ 18). Class A and B substances are the most highly regulated and are

deemed to have the most potential to affect the outcome of a race. (Id.). Class C substances are

                                             4

considered much more benign. (Id.). In short, betamethasone—and certainly in such extremely

small amounts—is not a substance that would have altered MEDINA SPIRIT’s performance in

the Kentucky Derby in any way, shape or form. (Barker affidavit, ¶ 8).

   While betamethasone is an allowable medication, the KHRC rules regulate it as an

injection. Under the KHRC’s reles, a horse may be injected with betamethasone so long as such

injection is not administered within 14 days of a race. The two KHRC rules governing

betamethasone are 810 KAR 8:010, Section 24 and KHRC 8-020-2, Section 12. Those rules state

as follows:

           810 KAR 8:010, Section 24:

           (1) A corticosteroid shall not be administered intra-articularly
           within fourteen (14) days before post time for the race in which the
           horse is entered.


           KHRC 8-020-2, Section 12:

           The following have a 14 day stand down period for intra-articular
           injection (IA). Any IA corticosteroid injection within fourteen days
           is a violation:

                      Betamethasone-Intra-articular (IA) at 9 mg total dose
                       in a single articular space;
                       NOTE: Withdrawal time should be increased for use of
                       betamethasone products with a ratio of a ൐ 1:1
                       betamethasone acetate to betamethasone sodium
                       phosphate. Intramuscular administration is associated
                       with substantially longer withdraw times. (emphasis
                       added).

   On the other hand, the KHRC rules specifically permit topical ointments. 810 KAR 8:010,

Section 4 states as follows:

           Certain Permitted Substances. Liniments, antiseptics, antibiotics,
           ointments, leg paints, washes, and other products commonly used in




                                            5

the daily care of horses may be administered by a person, other than
a licensed veterinarian if:
(1) the treatment does not include any drug, medication, or
substance otherwise prohibited by this administrative regulation;
(2) the treatment is not injected; and
(3) the person is acting under the direction of a licensed trainer or
veterinarian licensed to practice veterinary medicine in Kentucky
and licensed by the Commission.

   MEDINA SPIRIT has never been injected with betamethasone. (Amended Complaint at

¶ 19). However, the horse’s veterinary records show that in the weeks leading up to the Kentucky

Derby he was being treated by a veterinarian for a dermatological condition using a topical anti-

bacterial, anti-fungal and anti-inflammatory cream contained in the product OTOMAX. (Barker

affidavit, ¶ 13). Such treatment was proper veterinary care to cure the observed skin condition and

would not in any way affect the performance of the horse. (Barker affidavit, ¶13). The alleged

finding of 21 picograms of betamethasone in MEDINA SPIRIT is consistent with the fact that

OTOMAX was applied to the skin of the horse at least once a day, for several days, and was

applied to the skin the day before the Derby. (Barker affidavit, ¶ 14).

   As a result of the KHRC rules which only regulate betamethasone injections, and

specifically authorize the use of topical ointments, this Court ordered testing on MEDINA

SPIRIT’s urine sample to determine whether the horse was injected with betamethasone or merely

received a topical ointment. The parties agreed on the New York Equine Drug Testing & Research

Laboratory and MEDINA SPIRIT’s urine sample was transported by representatives of both

parties and hand-delivered to world-renowned Dr. George Maylin, the Director of the laboratory.

   On December 3, 2021, Dr. Maylin issued his report by way of letter addressed to counsel

for both Baffert and the KHRC. Said report was unequivocal in finding that the betamethasone in

MEDINA SPIRIT came from a topical ointment and not an injection. (Exhibit A). Dr. Maylin

also provided an Affidavit summarizing the results which concluded, “it is my opinion that the

                                             6

finding of betamethasone in the official (a) and (b) samples collected from MEDINA SPIRIT by

the Kentucky Horse Racing Commission following the 2021 Kentucky Derby resulted from the

topical administration of Otomax and not an injection of betamethasone.” (Exhibit B).

     Unbelievably, despite the fact that the entire purpose of the Court ordered examination of

MEDINA SPIRIT’s urine was to determine whether or not there was a rules violation, the KHRC

Stewards ignored the scientific findings. On February 21, 2022, the KHRC Stewards issued Ruling

numbers 21-009 and 21-0010 disqualifying MEDINA SPIRIT as the winner of the 2021 Kentucky

Derby and imposing a 90-day suspension and $7,500.00 fine on Baffert.1 (Exhibit C). The

Stewards offered no explanation as to the rationale for their decision. Despite being asked, the

Stewards failed to address Dr. Maylin’s scientific findings or otherwise explain how, in the face

of incontrovertible evidence that no betamethasone injection was ever given to MEDINA SPIRIT,

there was a rule violation.

     The Stewards Rulings are preliminary and have been appealed to the KHRC as is expressly

authorized by regulation. The matter will now go before the KHRC for a full blown administrative

hearing. As such, the Stewards Rulings aren’t even a final administrative decision of the KHRC.

Of course, whenever the KHRC does issue a final decision, it is subject to being appealed to this

Court.

     Typically, given the preliminary nature of a Stewards Ruling, the KHRC stays any

implementation of penalties imposed therein until all appeal are exhausted and there is a final and

binding decision. This is in large part because the KHRC recognizes that irreparable harm will be

suffered by licensees if they are forced to presently suffer the consequences of a ruling that is

subject to being reversed later. For example, a trainer who is forced to serve days of a suspension

1
Even more troubling, the 90 day suspension is well beyond the 30-60 day maximum allowed under the KHRC’s
penalty rule. See 810 KAR 8:030, Section 4 (3)(a).

                                               7

now cannot ever get those lost days back if the ruling imposing the suspension is subsequently

vacated or modified.

   KRS 230.320 sets forth a process by which parties can request that a Stewards Ruling be

stayed pending appeal. First, application can be made to the Executive Director of the KHRC.

KRS 230.320 (2)(a). If the Executive Director declines to issue the stay, application can then be

made to the Chairperson of the KHRC. If the stay is still not granted, appeal can be made to this

Court. KRS 230.320 (2)(f).

   Plaintiffs have followed the statutory procedure set forth in KRS 230.320. However, the

Executive Director has refused to grant a stay and, although appeal has been made to the

Chairperson of the KHRC, no decision has been made by that body and the starting date of the

suspension is imminent. The Plaintiffs cannot afford to wait. Absent a stay of the Stewards Ruling

before March 8, 2022, the Plaintiffs will suffer immediate and irreparable harm.

                                       ARGUMENT

   I. The Court should stay the Stewards Rulings pursuant to KRS 230.320.

   KRS 230.320(2)(f) authorizes this Court to review any decision of the KHRC refusing to

stay a Stewards Ruling. Under this statute, the Plaintiffs’ burden is low. Plaintiffs must only

establish good cause for a stay. Here, that burden is easily met as, absent a stay, the Plaintiffs’

appeal of the Stewards Rulings would be rendered meaningless. This is because Plaintiffs will

currently be forced to suffer the consequences of penalties they are appealing. If they are

successful in their appeals, the harm they will have already suffered cannot be undone.

   In this case, the Stewards have imposed a 90 day suspension on Baffert that is set to take

effect on March 8, 2022. He has appealed that ruling and the matter is set for administrative

adjudication before the KHRC. In other words, the Stewards Ruling imposing the suspension isn’t

even a final decision of the administrative body at this point. However, if Baffert is forced to serve

                                              8

his suspension now, the consequences to him are significant and his appeal of that Ruling will

necessarily be rendered moot.

   First, any suspension imposed by the KHRC will be honored through reciprocity by every

other racing jurisdiction in the United States. Thus, if the suspension is put into place now, Baffert

will be precluded from racing anywhere in the United States for 90 days. Further, in California

where Baffert his based, he will be forced to vacate his barns and remove all signage. (Baffert

Affidavit, ¶ 9). This will effectively put him out of business. (Id.). Thus, the consequences of

serving a suspension are severe.

   Second, if forced to serve a suspension now, Baffert’s appeal would be rendered moot.

This is because any subsequent ruling that vacates or modifies the suspension would be

meaningless if those days have already been served. The genie cannot be put back into the bottle.

This is why the KHRC always grants stays in cases like this and its actions here are unprecedented.

Treating Baffert differently than every other trainer is arbitrary and capricious. See Wagoner v.

Blair Fork Coal Co., 534 S.W.2d 250, 252 (Ky. 1976) (administrative boards must act fairly and

honestly and treat everyone alike according to the standards and rules prescribed; failure to do so

is arbitrary which Courts will not permit).

   Plaintiffs are clearly entitled to a stay of the Stewards Rulings pursuant to KRS 230.320.

Accordingly, this Court should enter an Order saying those Rulings while they are being appealed.

   II. The Court should stay the Stewards Rulings pursuant to CR 65.04.

   CR 65.04(1) authorizes circuit courts to grant a temporary injunction when “it is clearly

shown … that the movant’s rights are being or will be violated by an adverse party and the movant

will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the

                                              9

action, or the acts of the adverse party will tend to render such final judgment ineffectual.”

Temporary injunctions are meant to maintain the status quo until the substantive issues in a case

can be fully heard. Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978).

   Injunctive relief is proper when the court determines that: (1) the movant's position presents

‘a substantial question’ on the underlying merits of the case, i.e. that there is a substantial

possibility that the movant will ultimately prevail; (2) the movant’s remedy will be irreparably

impaired absent the extraordinary relief; and (3) an injunction will not be inequitable, i.e., will not

unduly harm other parties or disserve the public. SM Newco Paducah, LLC v. Kentucky Oaks Mall

Co., 499 S.W.3d 275, 278 (Ky. 2016) (quoting Price v. Paintsville Tourism Commission, 261

S.W.3d 482, 484 (Ky. 2008)). Because all three requirements are satisfied here, the Plaintiffs are

entitled to a temporary injunction staying the KHRC from enforcing the Stewards Rulings while

they are being appealed.

   I.      There is a Substantial Likelihood That Plaintiffs Will Prevail on the
           Merits.

   Kentucky courts require a party seeking a temporary injunction to show a substantial

question exists—which is another way of saying that there is “a substantial possibility that the

plaintiff] will ultimately prevail on the merits.” Beshear v. Acree, 615 S.W.3d 780, 830 (Ky. 2020)

(quoting Norsworthy v. Kentucky Bd. of Med Licensure, 330 S.W.3d 58, 63 (Ky. 2009)); see also

Maupin, 575 S.W.2d at 699. Moreover, “even if the Plaintiff is unable to show a strong or

substantial probability of ultimate success on the merits, an injunction can be issued when the

plaintiff at least shows serious questions going to the merits and irreparable harm which decidedly

outweighs any potential harm to the defendant if an injunction is issued.” Morgan v. Bevin, 298

F.Supp.3d 1003, 1009 (E.D. Ky. 2018) (internal citations omitted). In this case, Plaintiffs easily

                                              10

establish a substantial possibility that some or all of the Stewards’ Ruling will be reversed for three

reasons.

   First, the Stewards’ Rulings are unsound and contrary to the plain text of KHRC

regulations. When interpreting regulations, Kentucky law is clear that the text is “supreme.” Owen

v. University of Kentucky, 486 S.W.3d 266, 270 (Ky. 2016). “[T]he words of the text are of

paramount concern, and what they convey, in their context, is what the text means.” Id. (quoting

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).

In determining the meaning of the text, “words will be presumed to be understood in their ordinary

meanings, unless context mandates otherwise.” Id. Equally important, Kentucky courts “will not

construe a meaning that the text cannot bear.” Id.

   There are two KHRC rules governing betamethasone. Those rules are as follows:


           810 KAR 8:010, Section 24:

           (1) A corticosteroid shall not be administered intra-articularly
           within fourteen (14) days before post time for the race in which the
           horse is entered.


           KHRC 8-020-2, Section 12:

           The following have a 14 day stand down period for intra-articular
           injection (IA). Any IA corticosteroid injection within fourteen days
           is a violation:

                      Betamethasone-Intra-articular (IA) at 9 mg total dose
                       in a single articular space;
                       NOTE: Withdrawal time should be increased for use of
                       betamethasone products with a ratio of a ൐ 1:1
                       betamethasone acetate to betamethasone sodium
                       phosphate. Intramuscular administration is associated
                       with substantially longer withdraw times. (emphasis
                       added).




                                              11

Both of these rules plainly address and limit injections of betamethasone (betamethasone

acetate). They do not in any way address or limit topical applications of betamethasone

(betamethasone valerate). In fact, the KHRC rules specifically permit topical ointments. 810 KAR

8:010, Section 4 states as follows:

            Certain Permitted Substances. Liniments, antiseptics, antibiotics,
            ointments, leg paints, washes, and other products commonly used in
            the daily care of horses may be administered by a person, other than
            a licensed veterinarian if:
            (1) the treatment does not include any drug, medication, or
            substance otherwise prohibited by this administrative regulation;
            (2) the treatment is not injected; and
            (3) the person is acting under the direction of a licensed trainer or
            veterinarian licensed to practice veterinary medicine in Kentucky
            and licensed by the Commission.


    In this case, Plaintiffs have presented undisputed scientific proof that the positive test result

following the Kentucky Derby was the result of a topical ointment containing betamethasone

valerate, while also conclusively determining that MEDINA SPIRIT was not injected with

betamethasone acetate. (Exhibits A and B; Am. Compl. at ¶¶ 30-31.) Betamethasone acetate—the

metabolite present in the injectable form of betamethasone—is the only one referenced in the

KHRC regulations and those regulations only address intra-articular injections. 810 KAR 8:010,

§ 24; 810 KAR 8:020-2, § 12. There is no mention of other betamethasone metabolites or the

presence of betamethasone in other forms. To the contrary, the KHRC regulations expressly permit

the use of “ointments” that are “commonly used in the daily care of horses.” 810 KAR 8:010, § 4.

    It is a primary rule of construction that the enumeration of particular things excludes the

idea of other terms omitted from the text. Fox v. Grayson, 317 S.W.3d 1, 8-9 (Ky. 2010)

(concerning the expressio unius est exclusio alterius canon of construction). This rule is “most

helpful when there is a strong, unmistakable contrast between what is expressed and what is

                                               12

omitted.” Id. In this case, the KHRC regulations specifically enumerate the exact metabolite

(betamethasone acetate) and treatment form of betamethasone (intra-articular corticosteroid

injection) that is prohibited if administered within the stand-down period provided within the

regulations. By contrast, there is no mention of betamethasone valerate or its use in topical

ointments—which are themselves presumptively permitted under 810 KAR 8:010, § 4.

   The Stewards Rulings disqualifying MEDINA SPIRIT and imposing penalties on Plaintiffs

did not include any rationale or explanation for their conclusion. Specifically, and despite

Plaintiffs’ request for clarification, the Stewards declined to state whether they believed (contrary

to irrefutable scientific evidence) that MEDINA SPIRIT was in fact injected with betamethasone

acetate or, alternatively, whether they believe Otomax and topical uses of unregulated

betamethasone metabolites nonetheless amount to a violation of the KHRC regulations. But either

way, the Stewards have erred: either they ignored unquestionable scientific evidence that

MEDINA SPIRIT was not injected with betamethasone acetate or they willfully disregarded the

plain texts of their own regulations as to which substances are and are not prohibited.

   This distinction is important and is the whole reason this Court ordered supplemental

testing of MEDINA SPIRIT’s urine sample. Now that the truth has come out, the Stewards and

the KHRC have apparently determined that they do not care and intend to punish Plaintiffs anyway,

without explanation, and without delaying implementation of their punishment pending appeal.

The plaint text of the regulations at issue demonstrates that Plaintiffs raise a substantial possibility

of success in reversing the Stewards’ Rulings. The Stewards’ penalties should therefore be stayed

while that process plays out.

   Second, Plaintiffs raise a serious question concerning the merits by demonstrating bias in

the Stewards panel adjudicating their case. All Kentucky adjudications, whether judicial or

                                              13

administrative, are protected by due process guarantees “whereby Kentucky citizens may be

assured of fundamentally fair and unbiased procedures.” Commonwealth Nat. Res. & Envtl. Prot.

Cab. v. Kentec Coal Co., Inc., 177 S.W.3d 817, 724 (Ky. 2005). Agencies “must accredit

themselves by acting in accordance with the cherished judicial tradition embodying the basic

concepts of fair play.” Morgan v. United States, 304 U.S. 1, 22 (1938). As such, “a biased

decision-maker is constitutionally unacceptable,” and Kentucky’s justice system “has always

endeavored to prevent even the probability of unfairness.” Baker v. Commonwealth, 2007 WL

3037718 at *14 (Ky. App. Oct. 19, 2007) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

    In this case, Plaintiffs hearing was conducted by a three-Steward panel. One of those

Stewards, however, is an employee of Churchill Downs. Months ago, and before hearing any

evidence, Churchill Downs imposed its own suspension of Baffert which is currently being

litigated. That Steward is unavoidably predisposed, if not pressured, to act in a way that upholds

or confirms actions that his employer has already taken. His presence and bias in the proceedings

taints the entire panel and undermines the panel’s decision, which again was issued without any

explanation or rationale for its ruling.

    Third, Plaintiffs raise a substantial possibility of success on the merits because the Stewards

exceeded their authority in imposing a penalty beyond the range permitted in the KHRC

regulations. 810 KAR 8:030, Section 4(3)(a)—which relates to penalties applicable to a “Class C

drug violation and an overage of permitted NSAIDs”—provides for a maximum penalty of a 30-

60 day suspension and a $2,500-5,000 fine absent mitigating circumstances. Therefore, even if the

Stewards correctly determined that Plaintiffs violated Kentucky’s rules of racing (which they did

not), they erred in imposing a penalty beyond the maximum penalty allowed for a Class C drug

violation under the KHRC regulations.

                                              14

Thus, because Plaintiffs have adequately demonstrated a substantial possibility they will

ultimately prevail on the merits, the Court should reverse the KHRC’s decision to deny Plaintiffs’

request to stay their suspension and further enjoin the KHRC from attempting to enforce those

penalties until this matter is finally decided.

    II.     Plaintiffs Will Suffer Immediate and Irreparable Injury Without the
            Entry of a Temporary Injunction.

    Under Kentucky law, a party is entitled to injunctive relief when he or she establishes that

“his or her right will be violated by the adverse party and that without the requested relief he or

she will suffer irreparable injury.” Commonwealth, Revenue Cab. v. Ledger, 955 S.W.2d 539 (Ky.

App. 1997). Irreparable injury may be established by proving that the available legal remedies

will not adequately address the harm, such that “even a favorable judgment will not give [the party]

adequate relief.” Collins v Commonwealth, 324 S.W.2d 406 (Ky. 1959); see also North Fork

Collieries, LLC v. Hall, 322 S.W.3d 98, 102 (Ky. 2010) (irreparable harm is one in which “final

judgment will be rendered ineffectual”). It has also been found to exist when money damages will

not fully compensate a plaintiff’s injury. United Carbon Co v. Ramsey, 350 S.W.2d 454, 461 (Ky.

1961). An injury is irreparable when “the nature of the plaintiff’s loss would make damages

difficult to calculate.” Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992).

    Courts have repeatedly held that, in the realm of sports, where the sporting events cannot

be replayed after the fact, “[i]mproper suspensions . . . can undoubtedly result in irreparable harm.”

Nat’l Football League Players Ass’n v. Nat’l Football League, 598 F. Supp. 2d 971, 982 (D. Minn.

2008). There is a long line of case law recognizing the logic of this view. For example:

           A college football player accusing the NFL of improperly deeming him ineligible
            for the draft showed irreparable harm because “los[ing] a year of playing time in
            the NFL” was “irremediable.” Clarett v. Nat’l Football League, 306 F. Supp. 2d
            411, 412 (S.D.N.Y. 2004).




                                              15

 Five NFL players suspended for four games because of positive drug tests
obtained an injunction against their suspensions because there were “substantial
questions” about the players’ “inadvertent use of a banned substance” and
because their “reputation[s]” would be “irretrievably tarnished” if suspensions
were implemented. Nat’l Football League Players Ass’n, 598 F. Supp. 2d at 982.

          A 19-year-old professional hockey player obtained an injunction against a rule
           imposing a minimum age of 20, because continued competition carried “financial
           and emotional rewards in excess of [the player’s] salary.” Linseman v. World
           Hockey Ass’n, 439 F.Supp. 1315, 1319 (D. Conn. 1977).

          A professional basketball player showed irreparable harm when threatened with a
           challenge to his eligibility to play under the NBA’s draft rules because, if forced
           to sit out, the player’s “public acceptance as a super star will diminish to the
           detriment of his career.” Denver Rockets v. All-Pro Management, Inc., 325
           F.Supp. 1049, 1057 (C.D. Cal. 1971).

   Baffert is similarly situated. During the next 90 days, numerous races, including the Triple

Crown, will be run. (Baffert Aff. ¶ 10). This is not limited to Kentucky—due to reciprocity laws

in place in all racing jurisdictions – Baffert will be effectively prevented from entering horses to

race anywhere in the United States. (Id. at ¶ 7). Any missed races will be an opportunity forever

lost, analogous to a football or basketball player being suspended for critical playoff games. The

Triple Crown and all the other graded races only come around once a year—and if Baffert is

prohibited from participating in 2022—it is an opportunity that can never be regained. There is

no compensating for the missed opportunity to participate in the prestigious races that define the

success of a trainer’s career and garner goodwill with clients. Given the unique nature of the

industry, any prolonged suspension of Baffert will also have the effect of destroying his business

for a period of time much longer than the suspension itself. Most directly, in California—where

Baffert is based—any suspension over 60 days will require him to vacate his barns and remove his

signage, effectively putting him out of business. (Baffert Affidavit at ¶ 9).

   Moreover, the Sixth Circuit has explained that in addition to uneasily calculable damages,

irreparable harm can include “loss of customer goodwill.” Southern Glazer’s Distributors of Ohio,

                                             16

LLC v. Great Lakes Brewing Co., 860 F.3d 844, 852 (6th Cir. 2017). As Judge Rogers explained,

“[i]t is appropriate to use a preliminary injunction to avoid harms to goodwill and competitive

position,” particularly when the injury harms “goodwill and competitive position in ways that

would be hard to compensate.” Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264, 279 (6th

Cir. 2015).2

     This is even more true for Baffert than most trainers because he offers a unique and highly

specialized service in training only elite thoroughbred racehorses for prestigious Graded Stakes

races, including the Triple Crown. Graded Stakes races are the most elite races and a Grade I

Stakes races is the highest level of racing in the industry. (Baffert Affidavit at ¶ 10). Those races

generally offer the highest purses and are intended to showcase the best, most elite horses in the

industry. (Id.) Because Baffert worked his way up the ladder of horse racing to become an elite

thoroughbred trainer, training horses for Graded Stakes and prestigious races is the foundation of

his livelihood. (Id. at ¶ 11). His clients spend significant monies on top-class horses at annual

thoroughbred auctions to participate in these races. (Id. at ¶ 12). They cannot afford to be excluded

from those races. Thus, any suspension will necessarily precipitate a mass exodus from his care

of horses worth tens of millions of dollars as owners cannot allow themselves to be excluded from

all of the highly prestigious races which occur in the next 90 days. (Id. at ¶¶ 8, 11-12.)

     As Great Lakes Brewing explained, “[w]hen a distributor loses a unique product like Great

Lakes’ craft beer, it threatens their relationship with the retailers that have come to rely on the

distributor for the in-demand product.” Id. at 853 (referring to Tri-Cty. Wholesale Distribs., Inc. v.

2
The Sixth Circuit’s position is hardly unique. See Regeneron Pharma., Inc. v. United States Dep’t of Health &
Human Servs., 510 F.Supp.3d 29, 39-40 (S.D.N.Y. 2020) (“A court can find irreparable harm based on ‘loss of
reputation, good will, and business opportunities’”) (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d
Cir. 2004)). Thus, “a loss of existing business and a decline in the opportunity for new business may qualify as
irreparable harm.” Id. at 40.

                                                     17

Wine Grp., 656 F. App’x 477, 483 (6th Cir. 2012) (“The loss of a product which is ‘unique’ … can

cause a drop in customer goodwill”)). By analogy, this is equally true of Baffert—by needlessly

enforcing a preliminary suspension while Baffert appeals the Stewards Rulings, Baffert’s entire

business model and his relationships with his unique clients are gravely threatened. Because

Baffert faces irreparable harm to his ability to ply his trade and potentially forever disrupting his

goodwill with his clientele, injunctive relief staying the KHRC’s preliminary penalty is necessary

while Baffert appeals the Stewards Rulings.

   III.    The Equities Favor the Entry of a Temporary Injunction.

   Finally, the Maupin standard requires the Court to assess the equities involved in granting

temporary injunctive relief:

   The sufficiency of a verified complaint to support a temporary injunction should be
   evaluated by a balance of hardships test. That rule, well recognized in the federal
   system, provides that if the complaint shows a probability of irreparable injury and
   the equities are in favor of issuance, it is sufficient if the complaint raises a serious
   question warranting a trial on the merits.

575 S.W.2d at 699. In order to award a temporary injunction, the Court must find “that an

injunction will not be inequitable, i.e., will not unduly harm other parties or disserve the public.”

Beshear v. Goodwood Brewing Co, LLC, — S.W.3d —, 2021 WL 3730896, at *4 (Ky. 2021)

(quoting Price v. Paintsville Tourism Comm’n, 261 S.W.3d 482, 484 (Ky. 2008)). When weighing

the equities, “although not an exclusive list, the court should consider such things as possible

detriment to public interest, harm to the defendant, and whether the injunction will merely preserve

the status quo.” Id. (quoting Maupin, 575 S.W.2d at 699); see also Beshear v. Acree, 615 S.W.3d

780 (Ky. 2020).

   This factor requires the Court to weigh the harm to Plaintiffs against the potential harm to

the KHRC and the public. Examining the effects of injunctive relief make clear that the KHRC

                                              18

will not be prejudiced by a temporary injunction in any way—to the contrary, an injunction merely

preserves the status quo while this matter is permitted to be fully litigated to finality. If the KHRC

ultimately prevails and the Stewards’ decision is upheld, then Plaintiffs’ penalties can be

immediately enforced. Neither the Stewards nor the KHRC have expressed any public interest in

insisting that the preliminary penalties take immediate effect, and they have offered no explanation

or justification for their decision to take the highly unusual action of denying a request for stay

while a licensee appeals a preliminary ruling. Put bluntly, there is absolutely no harm to the KHRC

or the public in waiting to impose penalties until after Plaintiffs have exhausted their appeals.

   By contrast, the harm to Plaintiffs is immeasurable. Once they serve the time of their

suspensions, that lost time cannot be given back. This not only deprives Baffert of the ability to

ply his trade throughout the country in unique, once-a-year opportunities, but the unnecessarily

punitive length of the Stewards’ proposed suspension threatens his entire business. Because the

temporary injunction would merely preserve the status quo and does not alter the parties’ existing

relationship while the merits are fully adjudicated, the balance of equities strongly favors granting

Plaintiffs injunctive relief. The KHRC is the party attempting to upend the status quo, and thus, it

should be enjoined.

                                      CONCLUSION

   Accordingly, and for the foregoing reasons, Plaintiffs request that the Court stay the KHRC

from imposing all penalties set forth in Stewards Rulings 21-0009 and 21-0010 pending the appeal

of those Rulings.

                                             19

Respectfully submitted,

                                             /s/ W. Craig Robertson, III
                                             W. Craig Robertson, III
                                             wrobertson@wyattfirm.com
                                             Thomas E. Travis
                                             ttravis@wyattfirm.com
                                             Lexy Holland
                                             lgross@wyattfirm.com
                                             WYATT, TARRANT & COMBS, LLP
                                             250 W. Main Street, Suite 1600
                                             Lexington, KY 40507
                                             859-233-2012
                                             Counsel for Plaintiff Bob Baffert

                                             and

                                             /s/ Clark Brewster
                                             Clark Brewster
                                             Pro Hac Vice KBA# 16420917
                                             2617 E. 21st Street
                                             Tulsa, OK 74114
                                             Counsel for Plaintiff Zedan Racing Stables, Inc.


                             CERTIFICATE OF SERVICE

   This is to certify that I electronically filed the foregoing via the Court’s electronic filing

system on this the 28th day of February, 2022. I further certify that this motion will be served
upon the following by email:

Jennifer Wolsing, General Counsel
Kentucky Horse Racing Commission
4063 Iron Works Parkway
Building B
Lexington, KY 40511

                                               /s/ W. Craig Robertson, III
                                               Counsel for Plaintiffs

100702720.1 

                                             20

New York Drug Testing and Research Program
777 Warren Road Ithaca, NY 14850
Telephone: 607-882-9065 Fax: 607-882-9067

December 3, 2021

Jennifer Wolsing
General Counsel
PPC/Kentucky Horse Racing Commission
4063 Iron Works Pkwy, Building B
Lexington, KY 40511

W. Craig Robertson III
Wyatt, Tarrant & Combs, LLP
250 West Main Street, Suite 1600
Lexington, KY 40507-1746

Dear Ms. Wolsing and Mr. Robertson,

The New York Drug Testing & Research Program (NYDTRP) has tested the Churchill Downs urine
sample E427258 that was delivered by your representatives on July 14, 2021.

The urine sample was tested to determine if the alleged topical administration of OTOMAX could have
resulted in the finding of betamethasone in the official A and B samples collected by the Kentucky Horse
Racing Commission.

The urine sample contained clotrimazole, 2-(chlorophenyl) diphenylmethanol, a metabolite of
clotrimazole, and betamethasone 17-valerate. Gentamycin was not confirmed in the sample. These
analytes were detected in a topical administration of OTOMAX to two thoroughbred research horses,.
Betamethasone acetate was not detected in the sample. Other routes of administration have not been
studied yet.

The analytical data to support these findings and the metabolism and excretion studies are available for
review by an expert scientist in our Ithaca Laboratory. We consider this to be a research project that will
be submitted to a peer reviewed journal and as such is confidential until the data has been submitted for
review.

Sincerely,

George A. Maylin, D.V.M., Ph.D.
Director, New York Drug Testing & Research Program

GAM/kep
AFFIDAVIT

   Affiant, being duly sworn, hereby states as follows:

   1.      My name is Dr. George Maylin. I am of sound mind, over eighteen years of age,

and make the statements contained herein based on my own personal knowledge.

   2.      I am the Director of the New York Equine Drug Testing and Research Laboratory

which is located in Ithaca, New York. The New York Testing laboratory is fully accredited

thorough ISO 17025 and the Racing Medication Testing Consortium. We test all equine samples

from New York racing jurisdictions. We also test equine samples from other racing jurisdictions

when such testing does not interfere with our primary responsibility to the New York Gaming

Commission.

   3.      Pursuant to a Court Order entered in the matter of Bob Baffert and Zedan Racing

Stables, Inc. v. Kentucky Horse Racing Commission, Franklin Circuit Court, Civil Action No. 21-

CI-00456, a urine sample (E427258) from MEDINA SPIRIT was hand delivered to me on July

14, 2021 by representatives of both parties.

   4.      I agreed to test the MEDINA SPIRIT urine sample to determine if the alleged

topical administration of OTOMAX could have resulted in the finding of betamethasone in the

official A and B samples collected from the horse by the Kentucky Horse Racing Commission.

   5.      Attached hereto as Exhibit A is a letter dated December 3, 2021 which I sent to the

representatives of both parties following the testing. This letter sets forth my findings which are

based on a reasonable degree of scientific certainty.

   6.      Specifically, the MEDINA SPIRIT urine sample contained both a metabolite of

clotrimazole and betamethasone 17-valerate. This is consistent with the topical administration of

                                             1
                                                                                              EXHIBIT

OTOMAX. The MEDINA SPIRIT urine sample did not contain betamethasone acetate. This is

consistent with a finding that the horse was not given an injection of betamethasone.

     7.     Based on these results, it is my opinion that the finding of betamethasone in the

official A and B samples collected from MEDINA SPIRIT by the Kentucky Horse Racing

Commission following the 2021 Kentucky Derby resulted from the topical administration of

OTOMAX and not an injection of betamethasone. My findings are consistent with veterinary

records which show that MEDINA SPIRIT was prescribed OTOMAX by Dr. Vince Baker in the

weeks leading up to the Kentucky Derby, and the public statements of both Dr. Baker and Mr.

Baffert that MEDINA SPIRIT was not given a betamethasone injection before the Kentucky

Derby,

     Further affiant sayeth naught.

                                                              crAI         /1•2 1        •
                                                         GE     E MAY IN

STATE OF *At Yort< )
) :SS
COUNTY OF /6 iit)/9 hang’ )

  The foregoing instrument was subscribed, sworn to, and acknowledged before me by

George Maylin on this day of February, 2022.

     My Commission expires:        le/c9W9s—
                                 ooliiiiiiiii,
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                       .4.-- ,, STATEYORK\ s           NO A PUBLIC
                      - ,' OF NEW

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                         .... - iiiiiiiiw•-

Andy Beshear Ray A. Perry
Governor Public Protection Cabinet Secretary
Kentucky Horse Racing Commission
4063 Iron Works Parkway, Building B Marc Guilfoil
Lexington, KY 40511 Executive Director
Telephone: (859) 246-2040
Fax: (859) 246-2039 Jonathan Rabinowitz
Chairman

                                 STEWARDS RULING
 Ruling number: 21-0009
 Sample #E427258

 Track: Turfway Park                                      Date: February 21, 2022

 Trainer: Robert A. Baffert

 Upon receipt of notification from Industrial Laboratories, the official testing
 laboratory for the Kentucky Horse Racing Commission, and confirmed at University
 of California, Davis (Laboratory No: 210525-424136), sample number E427258 taken
 from MEDINA SPIRIT, who finished first in the twelfth race at Churchill Downs on
 May 1, 2021, contained betamethasone in blood (Class C drug)(fourth medication
 violation in 365 days in any racing jurisdiction). After a formal hearing before the
 Board of Stewards Robert A. Baffert is hereby suspended 90 days, March 8, 2022
 through June 5, 2022 (inclusive) and fined seven thousand five hundred ($7,500)
 dollars. MEDINA SPIRIT is disqualified and all purse money forfeited. Pari-mutuel
 wagering is not affected by this ruling. During his suspension Mr. Baffert is denied the
 privileges of all facilities under the jurisdiction of the Kentucky Horse Racing Commission.
 Entry of all horses owned or trained by Mr. Baffert is denied pending transfer to persons
 acceptable to the stewards. Upon receipt of this ruling, it is required within thirty (30) days
 to pay any and all fines imposed to the Kentucky Horse Racing Commission. Failure to do
 so will subject the licensee to summary suspension of license pursuant to 810 KAR 3:020
 Section 15 (cc).

 810 KAR 2:040 Section 4
810 KAR 4:010 Section 10, subsection (4)
810 KAR 4:100 Section 3, subsections (1) and (2)(d)
810 KAR 4:060 Sections (6) and (7)
810 KAR 8:010 Section 2
810 KAR 8:010 Section 15 subsections (2) and (3)
810 KAR 8:030 Section 2, subsection (3)
810 KAR 8:030 Section 3
810 KAR 8:030, Section 4, subsections (3)(a) and (b)
810 KAR 8:030 Section 9


BY ORDER OF THE STEWARDS

                                       TEAM

KentuckyUnbridledSpirlt,com KENTUCKY An Equal Opportunity E
EXHIBIT

                                                                                               2
                                                                                               a

Andy Beshear Ray A. Perry
Governor Public Protection Cabinet Secretary
Kentucky Horse Racing Commission
4063 Iron Works Parkway, Building B Marc Guilfoil
Lexington, KY 40511 Executive Director
Telephone: (859) 246-2040
Fax: (859) 246-2039 Jonathan Rabinowitz
Chairman

                                  STEWARDS RULING
Ruling number: 21-0010
 Sample #E427258

 Track: Turfway Park                                       Date: February 21, 2022

 Owner: Amr F. Zedan

Upon receipt of notification from Industrial Laboratories, the official testing laboratory for the
Kentucky Horse Racing Commission, and confirmed at University of California, Davis (Laboratory
No: 210525-424136), sample number E427258 taken from MEDINA SPIRIT, who finished first in the
twelfth race at Churchill Downs on May 1, 2021, contained betamethasone in blood (Class C drug).
Amr F. Zedan was present at a formal hearing before the Board of Stewards. MEDINA SPIRIT is
disqualified and all purse money forfeited. Pari-mutuel wagering is not affected by this ruling. All
purse monies must be returned to the association. The purse of this race is ordered redistributed as
follows:

THE OFFICIAL ORDER OF FINISH IS;
1" #7 MANDALOUN                                           I l'h   #2    LIKE THE KING
2" #9 HOT ROD CHARLIE                                     12th    #20   BOURBONIC
3rd
     #14 ESSENTIAL QUALITY                                13"'    #13   HIDDEN STASH
4th #6 0 BESOS                                            14"'    #3    BROOKLYN STRONG
5th #10 MIDNIGHT BOURBON                                  18th    #18   SUPER STOCK
6th #4 KEEPMEINMIND                                       16th    #15   ROCK YOUR WORLD
7"' #12 HELIUM                                            17th    #11   DYNAMIC ONE
8til
     #1 KNOWN AGENDA                                      18"'    #19   SOUP AND SANDWICH
9"' #17 HIGHLY MOTIVED
1001 45 SAINTHOOD

Disqualified # 8 MEDINA SPIRIT

810 KAR 2:040 Section 4
810 KAR 4:010 Section 10, subsection (4)
810 KAR 4:060 Sections (6) and (7)
810 KAR 8:010 Section 2
810 KAR 8:030 Section 4, subsections 3(a) and (c)
810 KAR 8:030 Section 9

BY ORDER OF THE STEWA-frAm

KentuckyUnbridledSpIrit.com KENTUCKY An Equal Opportunity Employer M/F/D
COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION II
CIVIL ACTION NO. 21-CI-00456
ELECTRONICALLY FILED

BOB BAFFERT PLAINTIFFS
AND ZEDAN RACING STABLES, INC

v.

KENTUCKY HORSE RACING DEFENDANT
COMMISSION

                                     AFFIDAVIT

   Affiant, being duly sworn, hereby states as follows:

   1.       My name is Bob Baffert. I am of sound mind, over eighteen years of age, and

make the statements contained herein based on my own personal knowledge.

   2.      I am a licensed thoroughbred trainer. Over the past few decades, I have been

honored and humbled to receive several awards from various thoroughbred/racing/sports

organizations. These honors demonstrate not only my level of achievement in this industry, but

my dedication to its success. I consider these awards to be some of my greatest

accomplishments:

        a. In 1997, I was awarded the Mr. Fitz Award by the National Turf Writers and
           Broadcasters' Association. This honor is awarded to an individual or group who
           best typifies the spirit of racing.

        b. In 1998, I was awarded the Big Sport of Turfdom award by the Turf Publicists of
           America. This award is given to a person or group who enhances coverage of
           thoroughbred racing through cooperation with the media and racing publicists.




                                                                               L
                                                                                        EXHIBIT



                                                                                  ll$   immummismi

c. in 1997, 1998, 1999, and 2015, I earned the Eclipse Award, presented by the
National Turf Writers and Broadcasters’ Association, given to the nation’s most
outstanding trainer.

         d. In 2007, I was inducted into the Lone Star Park Hall of Fame.

         e. In 2009, I was inducted into the Thoroughbred. Racing Hall of Fame.

         f. In 2010, I was inducted into the Arizona Sports Hall of Fame.

         g. In 2010, I was named a University of Arizona Hispanic Alumni Portraits of

            Excellence Honoree,

         h. In 2015, I was named March of Dimes Sportsman of the Year.

         i. In 2018, I was inducted into the Kentucky Sports Hall of Fame.

    3.      I have been training horses for over 46 years. I possess a trainer's license from

several racing jurisdictions, including the Commonwealth of Kentucky. My license remains

active, without limitation, and in good standing in all jurisdictions.

   4.       Horses I have trained have won the Kentucky Derby seven times; the Preakness

Stakes seven times; the Belmont Stakes three times; and the Breeders Cup eighteen times. Of the

thirteen Triple Crown winners in American history, T have trained two of them: AMERICAN

PHAROAH in 2015 and JUSTIFY in 2018.

   5.       On May 1, 2021, MEDINA SPIRIT, a horse I trained, won the 147'h Kentucky

Derby at the Churchill Downs Race Track in Louisville, Kentucky.

   6.       On February 21, 2022, I was informed by the. Stewards of the Kentucky Horse

Racing Commission that, due to post race blood and urine tests, MEDINA SPIRIT would be

disqualified as the winner of the 2021 Kentucky Derby and I would be suspended for 90 days

and fined $7500.

                                              2

7. If I am suspended, I wily be prevented from entering horses to race anywhere in

the United States. This is because any suspension imposed by Kentucky will be recognized

through the reciprocal arrangements between the racing jurisdictions of each state. Certain races

only come around once a year and are limited to horses of a particular age, Every day that I am

prevented from entering horses in races is one day of lost opportunity that I can never regain, and

for which I will be harmed.

    8.     Moreover, any suspension will likely have the effect of harming my business for a

significant period of time much longer than the suspension itself. The suspension will precipitate

horses currently in my care—worth tens of millions of dollars— being moved to other trainers

because their owners cannot allow those horses to be excluded from participation in the lucrative

races. This will effectively put me out of business in all states.

    9,     In California, where I am based, any suspension over 60 days will require me to

vacate my barns and remove all signage. As a result, I will be effectively put out of business.

   10.     Graded Stakes are the most elite races and a Grade I Stakes race is the highest

level of racing in the industry, Graded stakes generally offer the largest purses, and are intended

to showcase the best horses in the industry. All three Triple Crown races are Grade_I Stakes

races. A 90 day suspension will prevent me from participating in any of those races in 2022. I

will also be prevented from participating in numerous other prestigious races. If those races are

missed, they are forever lost opportunities.

   11.     I have spent my entire career working my way up the ladder of horse racing to get

to the point where I can consistently compete at the highest level. Training horses for Graded

stakes races is now the foundation of my livelihood. I do so throughout the United States and,

heretofore, thoroughbred owners know that, when they place a horse in my care, they will have

                                              3

the opportunity to have their horses race in the best races throughout the country. A 90 day

suspension threatens to destroy (a) my ability to ply my trade, (b) my current business model,

and (c) my ability earn a living not just in Kentucky, but throughout, the country.

     12.    I have a number of owners who invest in partnerships that spend significant

monies on top class horses at annual thoroughbred auctions, including the Keencland and

Saratoga yearling sales. These owners are in pursuit of horses that can race in the country’s most

prestigious races, including the Triple Crown. If I am suspended and unable to participate in all

of the Triple Crown races, I have been informed that those owners may no longer invest in

horses to be placed in my care as a trainer.

     Further affiant sayeth naught.

STATE OF Q444 /1•14dif—
) :SS
COUNTY OF I’vs’ e-62:5″
)
The foregoing instrument was subscribed, sworn to, and acknowledged before me by Bob
Baffert on this 28th day of February, 2022.

     My Commission expires:           °P.ik"       60..4i

100702873.1 ANGELITA CARMONA
Notary Public,• California
Los Angeles County W
Commission # 2373720 “
My Comm. Expires Sep 4, 2025

                                                        4

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION
CIVIL ACTION NO.
ELECTRONICALLY FILED

BOB BAFFERT PLAINTIFFS
AND ZEDAN RACING STABLES

v.

KENTUCKY HORSE RACING
COMMISSION
DEFENDANT

                                     AFFIDAVIT

   Affiant, being duly sworn, hereby states as follows:

   1.      My name is Dr. Steven A. Barker. I am of sound mind, over eighteen years of age,

and make the statements contained herein based upon my own personal knowledge, training,

experience and professional expertise.

   2.     I received a B.S. in Chemistry (with a minor in Mathematics and Physics) from the

University of Alabama in Birmingham (“UAB”) in 1971. I subsequently earned an M.S.. in

Chemistry (with a minor in Physical Chemistry) in 1973 as well as a Ph.D. in Chemistry and

Neurochemistry in 1978—both also from UAB.

   3.     I have held the positions of Associate Professor (1985-1989), Professor (1990-

2016) and the Evert Besch Distinguished Professor of Veterinary Medicine (2004-2010) and I am

currently Professor Emeritus (2016-present) in the .Department of Comparative Biomedical

Sciences at the Louisiana State University (“LSU”,) School of Veterinary Medicine in Baton

Rouge, Louisiana.
4. From 2014 to 2016, I also served as the Section Head in the Louisiana Animal

Disease Diagnostic Laboratory within the LSU School of Veterinary Medicine.

      5.    From 1985 to 2016, I was the Director of the Analytical Systems Laboratory within

LSU’s School of Veterinary Medicine. I also served as State Chemist for the LOuisiana State

Racing Commission from 1987 to 2016 and as Director of the Equine Medication. Surveillance

Laboratory, also from 1987 to 2016.

     6.     I have been informed that preliminary testing of MEDINA SPIRIT's primary serum

sample collected following the 2021 Kentucky Derby allegedly contained 21 picograms of

betamethasone/mi of serum.

     7.     A picogram is one-trillionth of a gram. For reference, a picogram is the rough

equivalent of one drop of water in an Olympic sized swimming pool. The 21 picograms allegedly

detected in MEDINA SPIRIT’s primary sample meets every pharmacologic and practical

definition of a “trace” amount of the substance.

     8.    It is my considered opinion that the presence of such a trace amount of

betamethasone has no pharmacological effect on a horse and would have had no impact on

MEDINA SPIRIT’s victory in the 147th running of the Kentucky Derby.

     9.    Betamethasone itself is not a performance-enhancing drug. Rather, it is a substance

that can suppress inflammation similar to other corticosteroids such as hydrocortisone and

prednisone. Contrary to many media reports and statements it is not an anabolic steroid and

possesses none of the pharmacological properties of this distinctly different class of drugs.

  1. Further, betamethasone is not a banned substance. In fact, it is approved by the United States Food and Drug Administration (FDA) and recognized by the Racing Medication Testing Consortium and Association of Racing Commissioners International as a valuable
    therapeutic substances, and is included on their Controlled Therapeutic Medication Schedule. It is commonly administered to horses to reduce inflammation.
  2. Betamethasone is most commonly given to horses through injection. Indeed, the current “threshold” for betamethasone in a racing horse, set by the RMTC (Racing Medication and Testing Consortium) and others, is 10 picograms betamethasone/m1 of blood. This threshold, which again establishes the fact that it is not a “banned” substance, was completely and totally

established based on scientific data obtained from the injection of betamethasone in the fetlock

and/or other equine joints and its measurement post-injection in blood as a function of time.

The major and appropriate concern was to prevent horse’s from.running on injured or damaged

joints, leading to breakdowns and eventual death of the horse or injury to the jockeys. No other

sources or uses of betamethasone, such as topical application or environmental sources, were

considered in establishing this limit. Aside from injection, however, scientific studies have

proven that environmental or innocent contamination can lead to substances such as

betamethasone being detected in the blood and/or urine of a horse, especially when monitored

at picogram quantities. Further, wound sprays and topical ointments fpr treatment of dermatitis

in a horse often contain betamethasone. Many psoriasis creams and other products for humans

can contain betamethasone. Any of these external sources can be responsible for inadvertent

contamination. or transfer. These facts not only bring the established threshold into question

but make “limit of detection” and “zero-tolerance” thresholds for such a substance arbitrary,

capricious and of no value in a regulatory paradigm. The risk of contamination has become

magnified as technology improves and tests employed by various racing jurisdictions become

more and more sensitive. This makes the laboratories capable of detecting increasingly more
influence or are
minute levels of substances at levels that have no possible pharmacological
g manner.
present due to inadvertent contamination or their use in a non-performance-effectin
treated by a

  1. Veterinary records for MEDINA SPIRIT show that the horse was being
    l and anti-
    veterinarian for a dermatological condition using a topical anti-bacterial, anti-funga
    only used to treat
    inflammatory cream contained in the product OTOMAX. OTOMAX is comm
    equine under the
    deimatologic conditions in other species and is permitted for use in the
    Clarification Act of
    conditions of FDA AMDUCA (Animal Medicinal Drug Use
    observed condition
    1994) regulations. Such treatment was proper veterinary care to cure the
    the horse, the rider
    and would not in any way effect the performance of the horse or endanger

or the participants in the race.
SPIRIT is consistent

  1. The alleged finding of 21 picograms of betamethasone in MEDINA
    at least once a day,
    with the fact that this substance was being applied to the skin of the horse
    Further there is no record
    for several days, and was applied to the skin the day before the race.
    ional injection.
    that betamethasone was ever given to MEDINA SPIRIT as an intent
    ry sample is confirmed by
  2. It is my opinion that, if the finding in MEDINA SPIRIT’S prima
    ethasone in this case was topical
    the split sample analysis, the source of the finding of betam
    opinion that blood levels observed
    administration of the OTOMAX product. It is my further
    of the horse or any bodily function,
    had, to a scientific certainty, no effect on the performance
    concern that the threshold for this
    including the condition of its joints. It is also of great
    the threshold, the regulatory authorities
    substance is set at such a low level and that, in setting
    particularly, its commonly used topical
    failed to consider possible human sources or,

application for treatment of dermatological conditions.
15. There is available science to prove that the source of the betamethasone was due to the use

of this product. OTOMAX is comprised of the following compounds: Clotrimazole,

Gentamicin and Betamethasone Valerate. These compounds are variably absorbed through

the skin to the circulation and cleared through the liver and kidneys, making them more readily

detectible in a horse's urine rather than the blood. Since the threshold(s) for betamethasone

was established solely on concerns involving the use of betamethasone as an injectable in

equine joints, a complete analysis of MEDINA SPIRIT's blood and urine split samples for

clotrimazole, gentamicin and betamethasone valerate/betamethasone will lead to meaningful

scientific evidence to establish whether betamethasone was administered by injection or topical

ointment, and looking for these additional specific compounds, the ones found in OTOMAX,

is the only scientific way to definitively accomplish such a determination.

   Further affiant sayeth naught.




                                                DR. STEVEN X. BARKER



                                    ) :SS


   The foregoing instrument was subscribed, sworn to, and acknowledged before .me by Dr.

Steven A. Barker on this 24th day of May, 2021.

  My Commission expires:                    o -2 oz,

                                                                                                  5/ 76
                                                   0 ARY P

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION II
CIVIL ACTION NO. 21-CI-00456
ELECTRONICALLY FILED

BOB BAFFERT PLAINTIFFS
AND ZEDAN RACING STABLES, INC

v.

KENTUCKY HORSE RACING
COMMISSION DEFENDANT

                                          ORDER

     This matter having come before the Court on the Motion to Stay and/or for Temporary

Injunction filed by the Plaintiffs, Bob Baffert (“Baffert”) and Zedan Racing Stables, Inc. (“Zedan”)

(referred to collectively herein as the “Plaintiffs”), the parties having the opportunity to be heard,

and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED as follows:

     1.    That Plaintiffs’ Motion is GRANTED;

     2.    That the Defendant, the Kentucky Horse Racing Commission, is hereby prohibited

from enforcing the penalties described in KHRC Stewards Rulings 21-009 and 21-0010 until those

matters are final and Plaintiffs have exhausted all appeals.

     So ORDERED this the __ day of March, 2022.



                                                  ___________________________________
                                                  JUDGE, FRANKLIN CIRCUIT COURT
                                                  Division II

Photo: Medina Spirit, Kentucky Derby, Coady Photography

@jonathanstettin Nice piece and well articulated! Thanks for sharing your knowledge through your work!

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