FRANKFURT, Kentucky – Franklin County Circuit Court Judge Thomas Wingate has provided attorneys for Medina Spirit Communications and Kentucky Horse Racing Commission Until Wednesday To resolve their differences regarding the conduct of an additional urine sample test for the Kentucky Derby winner.
Lawyers representing coach Bob Baffert and owner Amr Zeidan have requested an injunction allowing the frozen sample to be sent to the entire New York lab. KHRC objected to the delivery of the entire sample—estimated at 25 to 27 milliliters—and offered to provide 2 milliliters for additional testing.
Wingate said he was inclined to allow KHRC to keep a portion of the sample, and indicated that he would issue an order to that effect if the parties had not reached a decision by Wednesday.
“This is an issue of very great importance to the state of Kentucky,” Wingate said. “If you care about anything about horse racing in the state, I think it’s a very important thing.”
Baffert and Zedan’s lawyers are trying to pretend The betamethasone detected in Spirit’s blood sample was the result of a topical ointment, not an injection. They contend that such a distinction could “completely exonerate” Baffert, and they believe additional tests could prove the source of the betamethasone.
Kentucky regulations do not discriminate as to the source of the material. According to his pharmacological definitions, “a positive result means that the commission laboratory has performed the tests and has determined that a drug, drug or substance, the use of which is restricted or prohibited…was present in the sample.”
Dr.. Marie Scully, CEO of Race Drugs and Tests Consortium, said that whether a substance was injected or absorbed through a topical ointment should make no difference in determining whether a disqualification was appropriate. It is the presence of a prohibited or prohibited substance in a horse that matters, Scully said.
Baffert’s lawyers argued, however, that the difference was “critical.”
“There is a significant difference in the discovery of betamethasone due to an intra-articular injection versus an injection of a topical ointment — from a regulatory and public relations standpoint,” they said in the lawsuit.
The KHRC’s Sanctions Guidelines call for suspension and fines that can escalate based on the number of offenses committed in a 365-day period. A first violation of a Class C drug such as betamethasone is punishable by a 0 to 60 day suspension and a $500 to $1,000 fine, absent extenuating circumstances. A second offense can result in a 60 to 180 day suspension and a fine of up to $2,500.