Kentucky Derby Winning Trainer Avoids Filing Temporary Restraining Order Challenging Due Process Violation

By Amanda Z. Weaver, Ph.D. and Heidi McNeil Staudenmaier

Bob Baffert, the trainer of this year’s Kentucky Derby winner Medina Spirit, announced on May 9, 2021, that the Kentucky Horse Racing Commission informed him that Medina Spirit allegedly tested positive for 21 picograms of betamethasone. The drug, a corticosteroid, is a permissible therapeutic medication, but the Kentucky Horse Racing Commission withdrawal guidelines require intra-articular injection to be administered no closer than 14 days prior to post time of an entered race. (Medina Spirit, however, appears to have received a topical medication containing betamethasone.) Any detectable amount of betamethasone is a violation of Kentucky’s equine medication protocols. 

Upon obtaining a post-race sample for testing, the Commission veterinarian provides a primary sample to the commission laboratory and secures a split sample. An owner or trainer may request that the split sample be tested by a Commission-approved laboratory at the requester’s cost. Mr. Baffert has indicated he is proceeding with testing the split sample. However, if Medina Spirit’s split sample tests positive for betamethasone, he faces invalidation from the Kentucky Derby results.

Churchill Downs, the racetrack famous for the Kentucky Derby, issued a statement suspending Mr. Baffert, asserting that it would wait for the Commission’s investigation to conclude before taking any further steps. Split sample testing can take around three to four weeks.

The next race in the Triple Crown, the Preakness Stakes, is set to run at Pimlico Racetrack in Baltimore, Maryland on May 15. 1/ST Racing, the organization responsible for operating Pimlico, indicated it was reviewing Mr. Baffert’s eligibility to race. Mr. Baffert’s attorney announced that he was prepared to file a temporary restraining order prohibiting the barring of Medina Spirit’s entry in the Preakness based on denial of Mr. Baffert’s due process. However, the parties came to an agreement on Tuesday, May 11, resulting in Medina Spirit’s entry in the Preakness, along with heightened testing protocols and monitoring in coordination with the Maryland Jockey Club and the Maryland Racing Commission.

Courts have faced before whether private racetracks’ excluding individuals violates their due process—a threshold inquiry concerns whether a privately owned and/or managed racetrack is considered a state actor, such that their action is fairly attributable to the government. The New Mexico district court in Carrillo v. Penn National Gaming, Inc., for example, has acknowledged the fact-intensive nature of that determination. 172 F. Supp. 3d 1204, 1219 (D.N.M. 2016).

Such determination need not be faced ahead of the Preakness, however, which had 10 horses initially entered for the May 15th race.