Secret Recordings, legal or not seem shady

April 5, 2022

Bob Baffert secretly recorded by the KHRC

Bob Baffert’s legal team issues statement on secret recordings

Earlier this week we learned from a Los Angeles Times article that trainer Bob Baffert was secretly recorded during a telephone conversation with members of the Kentucky Horse Racing Commission, or the KHRC, the regulatory body for horse racing in the state of Kentucky. The telephone conversation took place while Bob Baffert was in California and the KHRC members were in Kentucky. Kentucky is a one party consent state for recording a conversation while California is a two party state to record a conversation. As far as the legal argument goes, it would appear based on our review of the applicable case law, and discussions with several lawyers, that California law would likely apply in any civil or criminal cases. That is just opinion and probably a moot point as thus far there has been no indication that Bob Baffert will take any action against the KHRC. That could be because he feels it doesn’t matter and he doesn’t care about the recording, or that he will give it a pass as he is in a battle with them for both his career and reputation.

What we find more interesting is the the KHRC would record a trainer, any trainer without advising them they were being recorded. It is also interesting the secret recording would be kept secret for almost a year. When you factor in that Bob Baffert has been treated differently than other trainers in similar and even worse situations, it becomes problematic. If you add the often stated reasoning by both the KHRC and Churchill Downs for the harsh example setting treatment of Bob Baffert; integrity and protecting both the sport and the horses it just does not add up.

If regulators charged with enforcing and policing rules, skirt, avoid, or disregard rules, or even worse actual laws themselves, what do we have?

We don’t see how you can stand for integrity unless you display it in your actions and conduct. It is never what they say, it is always what they do. The KHRC to date has made no statement regarding the “secret recording” that we have seen. Bob Baffert’s legal team has.

Bob Baffert Attorneys Condemn KHRC Stewards for Secretly Recording Conversations in the Wake of Medina Spirit Initial Testing; Tapes Show Baffert Called for a Full Investigation 

 TULSA, OK., April 4, 2022 – Attorneys for Bob Baffert today questioned the Kentucky Horse Racing Commission (KHRC) for secretly recording telephone conversations with Bob Baffert, his veterinarian Dr. Vince Baker, and Medina Spirit owner Amr Zedan without any of their consent in the direct aftermath of the horse’s initial positive betamethasone test, which later turned out to be tied to a permitted ointment and not an injection. 

KHRC revealed its secret recordings to Baffert and his legal team in March, nearly a year after they were made, during a KHRC hearing in which Baffert sought a stay of his 90-day KHRC suspension. 

The recordings were made by Barbara Borden, Chief State Steward for KHRC; Brooks “Butch” Becraft, State Steward for KHRC; and Tyler Picklesimer, Association Steward for KHRC who is also employed by Churchill Downs as Director of Racing and Racing Secretary for Turfway Park, all of whom were on the phone with Baffert. Baffert and Baker had their conversations recorded by KHRC while they were in California, raising questions as to whether the state’s two-party consent laws were violated. California requires all parties to a conversation to consent to being recorded, even if the person recording the conversation is not physically in California during the conversation. 

At the start of Baffert’s recorded conversation with the KHRC stewards, Borden tells him, “Butch B. Craft, Tyler Picklesimer and I are in here. Nobody else.”, and then proceeded to record Baffert. Baffert’s attorneys argue that the concept of secretly recording a person at the outset of a telephone conversation suggests an intent to trap or later embarrass a person. It certainly doesn’t comport with fairness or objectivity, his attorneys maintain. 

Notably, KHRC did not record its conversations with any investigators or other parties involved in the case beyond Baffert, Baker and Zedan. 

The KHRC stewards’ secret recordings will provide no legal or evidentiary boost to KHRC’s case to suspend Baffert from Kentucky racing, but they highlight the fact that, even as early as May 8, 2021 (when the tapes were made), Baffert was calling on KHRC to conduct a thorough, transparent and fair investigation into the results, including a hair test, which is a particularly reliable form of drug testing. Although in the recordings KHRC said it would conduct a hair test, it never facilitated one and it still has not. 

In addition, the tapes show that Baffert welcomed KHRC to thoroughly search his barn for any restricted medications. KHRC’s subsequent search found nothing, despite the fact that the tube of Otomax used to treat Medina Spirit was sitting in plain sight, according to Baffert’s attorneys, who added that it was missed because Kentucky only expressly regulates the injectable form of betamethasone and not the topical form contained in Otomax. Laboratory testing has confirmed that the positive test resulted from the use of Otomax, a commonly used topical ointment for skin lesions. The use of ointments for topical treatment is expressly permitted under Kentucky rules. 

“These secret recordings reveal a fundamental contradiction in the false narrative that KHRC and Churchill Downs have pushed about Bob. They show a man who cares deeply about the integrity of racing and who from the beginning called for a full and fair investigation into Medina Spirit’s positive test,” said Baffert attorney Clark O. Brewster of Brewster & De Angelis. “They also show KHRC committing to a hair test, but they never followed through, failing to meet Bob’s call for transparency and the truth.” 

Brewster added, “These secret tapes raise a number of troubling questions. Why did the KHRC stewards secretly make these tapes and only record Bob, Dr. Baker and Mr. Zedan and no one else? Why withhold them from discovery? And why wait nearly a year to reveal them, only after the 90-day suspension was imposed? Powerful forces have aligned against Bob because they don’t want to compete against him anymore. We believe the facts, the truth and transparency will win every time against a false narrative, secrecy and obfuscation.” 

This may appear to be about Bob Baffert. Many will take it that way. We don’t. We think it is about a regulatory body playing by the rules, not employing selective enforcement, not making scapegoats, and enforcing clearly defined rules fairly across the board. Bob Baffert is the target, but this is not about him. When the authorities break the rules can there be any rules?

Even if you take the position Kentucky law applies, or maybe the KHRC made a mistake about which state law would govern the recording, you can’t get away from the shady look. There are a lot of people who are against Bob Baffert and that is their prerogative, but even if you sit in that camp, we think it is hard give the KHRC a pass on secretly recording a party without their consent or letting them know.

Back in the 70’s growing up in Brooklyn I heard something I never forgot and this reminded me of. “Never say anything on the phone you don’t want played back to you in a courtroom some day.” It was true then and is true now. If I knew you better I’d tell you who told me. As it turns out Bob Baffert said absolutely nothing he has to be worried about.

Photo: Benoit Photography

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