Panel shortens Baffert ban, bars him through Jan. 25

A three-person panel appointed by the New York Racing Association to consider a hearing officer’s recommendation to ban Bob Baffert for two years has instead modified the recommendation to ban the Hall of Fame trainer at NYRA’s tracks through Jan. 25, “effective immediately,” according to a copy of the report distributed by NYRA on Thursday.

The panel, which included the executive director of the local horsemen’s group, the head of a New York chapter of a racetrack chaplaincy organization, and a Saratoga Springs attorney, reduced the two-year ban recommended by the hearing officer to one year, but it also gave Baffert credit for 59 days of a ban enforced by NYRA in 2021 that was stayed by a judge and a 90-day suspension that Baffert is currently serving.

The one-year ban would keep Baffert from running any horses at the prestigious Saratoga meet later this summer, the ensuing Belmont Park fall meet, and the abbreviated Aqueduct fall meet, which includes the Grade 1 Cigar Mile on Dec. 3.

Although the panel’s decision cannot be appealed under hearing protocols adopted by NYRA last year, Baffert has the option to challenge the conduct of the hearing, the hearing officer’s recommendation, and the panel’s decision through civil courts. Although his attorneys in April strongly suggested that they would appeal any decision by the panel resulting in a ban of any length, one of Baffert’s attorneys said Friday morning that “no decision on an appeal has been made at this time.”

“We are reviewing the panel’s decision and considering all options,” said the attorney, Craig Robertson, who argued Baffert’s case with the attorney Clark Brewster during the initial hearing.

Baffert’s attorneys on Thursday attempted to get a stay of the penalty from the panel “pending timely administrative and judicial review,” but John J. Carusone Jr., the Saratoga lawyer on the panel, immediately denied the request.

“There is no administrative appeal permitted by the hearing rules and procedures,” Carusone wrote in a letter to the attorneys.

The reduction in the penalty is something of a victory for Baffert, who has been hounded by regulators and racetrack operators since Medina Spirit, a horse he trained, tested positive for the regulated corticosteroid betamethasone in last year’s Derby. The review panel took issue with several of the opinions and statements contained in the hearing officer’s report to make the case that the two-year penalty should be reduced to what is, in effect, a seven-month ban.

Baffert is currently serving a 90-day suspension because of the positive, and he has been banned by Churchill Downs Inc. through the 2023 Derby. Churchill announced the ban shortly after the positive became public knowledge one week after the 2021 Derby.

The NYRA-appointed hearing officer who recommended the two-year ban, O. Peter Sherwood, a retired New York Supreme Court judge, released his recommendation on April 27, three months after presiding over a five-day hearing in which attorneys for NYRA argued that the association had ample justification to ban Baffert due to the Derby positive, his recent history of medication violations, and statements he made following the positive that were critical of the sport and its regulators. Sherwood had recommended that the ban take effect when the panel reviewed his decision, which would have resulted in Baffert being banned from NYRA tracks through the summer of 2024.

The review panel said in its report that it “agrees with Justice Sherwood that Baffert’s actions ‘harmed the reputation and integrity of the sport as well as the public’s perception of the sport’s legitimacy.’ ” The panel’s report also cited the testimony of a sociology professor called by NYRA’s attorneys about a sport’s “social license” to operate.

“The concept of ‘social license to operate’ is and should be a concern of the racing industry and is relevant to” the charges that NYRA’s lawyers brought against Baffert, the panel wrote in its report.

But the panel’s report also took strong exception to sections of Sherwood’s report that referred to Baffert being guilty of “doping” his horses. All of Baffert’s medication violations cited by lawyers during the hearing were for regulated medications that have been classified by regulators as having some therapeutic benefit to horses.

“Justice Sherwood’s finding that Baffert was guilty of ‘multiple instances of doping horses he entered in races’ is incorrect,” the panel wrote. “In the lexicon of performance-enhancing drugs, ‘doping’ refers to the use of substances or methods which allow the athlete, human or equine, to perform beyond the normal level because it permits the body to build muscle mass or increase endurance. Such substances or methods are completely banned from use in any sport . . . . The distinction is important and the panel corrects the record accordingly.”

In making its case for a reduced ban, the panel also contended that Sherwood “appears to have relied principally” on the length of Churchill’s ban for his recommendation. However, the panel said that Baffert was not afforded a hearing by Churchill, a private company that has broader exclusion rights than NYRA, “and the panel is not persuaded that, had there been such a hearing in the Churchill Downs matter, a hearing officer would necessarily have imposed such a penalty.”

In addition, the panel wrote that there was “scant support in the record” for a statement by Sherwood in his report that Baffert “engaged in a pattern and practice of unlawful conduct that has no parallel in the modern history of Thoroughbred history.” NYRA’s attorneys had used that language verbatim in its arguments during the hearing.

Brewster, the other attorney on Baffert’s legal team during the NYRA hearing, referenced the panel’s criticisms of part of Sherwood’s ruling by saying in an e-mail message on Thursday that “it is obvious [the panel] tried hard to mitigate and generalize the nonsensical and contradictory ramblings of the Peter Sherwood order.”

NYRA adopted its internalhearing protocols to consider penalties against licensees last year, several months after a New York judge ruled that the association could not issue bans without allowing licensees an opportunity to defend themselves. The judge’s ruling came in response to a lawsuit filed by Baffert alleging that NYRA had violated his due-process rights when the association banned him last year.

NYRA’s Saratoga meet begins July 14 and runs through Labor Day, Sept. 5. While Baffert does not maintain stalls at Saratoga, he typically targets several of the meet’s stakes races with top-class horses each year. The Belmont fall meet runs from Sept. 15 to Oct. 30, and the Aqueduct fall meet runs from Nov. 4 to Dec. 4.