By Jared P. Vasiliauskas
On May 9, 2021, Kentucky Derby winner, Medina Spirit was announced to have failed a pre-race drug test for the corticosteroid betamethasone. Betamethasone is classified as a therapeutic under the current anti-doping rules, and thus was only prohibited within 14 days of a race. Along with the announcement came the potential that Medina Spirit would be disqualified and stripped of the Derby title. However, before any such determination could be made, the second sample collected at the same time, generally referred to as the “B” Sample, must confirm the positive test result.
The positive result also required Medina Spirit to undergo far more stringent testing to compete in the Preakness Stakes on May 15, 2021. As part of an agreement between race organizers and the representatives of trainer Bob Baffert, Medina Spirit was forced to undergo enhanced medical screenings to race. This included, three negative drug screenings leading up to the race, and a review by race organizers of Medina Spirit’s medical records.
Currently, no official action has been taken against Medina Spirit by Churchill Downs with respect to the race results. The second sample analysis has not yet been completed. Should there be a confirmation of the presence of betamethasone, any disqualification would be subject to an appeal, which would likely be initiated by trainer, Bob Baffert.
Churchill Downs has suspended the trainer, Bob Baffert, from entering any horses into races at their track. Currently the length of the suspension has not been announced, and there is an ongoing investigation by the Kentucky Horse Racing Commission.
After an initial denial of the use of betamethasone, Baffert and his team later acknowledged that Medina Spirit was given Otomax leading up to the Kentucky Derby. Otomax is an ointment used to treat betamethasone, and the levels in the sample from Medina Spirit were consistent with this explanation. Treatment applications were provided on April 9 and April 19, according to the medical records of Medina Spirit.
In 2020, Congress passed the Horseracing Integrity and Safety Act (the “Act”), which shall take effect on July 1, 2022. Under the Act, a board overseen by the Federal Trade Commission will have the authority to write rules and penalties for the sport. These rules, and the penalties are to be enforced by the United States Anti-Doping Agency (“USADA”).
In consideration of the authority granted under the Act, the intention of Congress to provide standard rules for anti-doping in horseracing, and to protect the horses was made clear. Under the new rules, the Horseracing Integrity and Safety Authority (the “Authority) has the ability to develop rules governing, amongst other matters, anti-doping in horseracing. What this should lead to is a consistent administration of protocols and procedures for testing horses, and a clear list of prohibited substances.
As the Authority sets out to develop their rules, protocols and authority surrounding anti-doping in the sport, there are several key considerations that should be addressed. The most significant of those considerations is the impact of a positive test result on the applicable Covered Persons responsible for the Covered Horse. As there can be multiple Covered Persons charged with the care and responsibility of the Covered Horse, there is the potential that one positive test result could warrant multiple suspensions. Additionally, the Authority will need to address the length of the suspension, and whether various Covered Persons could have suspensions for different lengths arising out of the same positive test result, due to their level of culpability.
An additional consideration in developing the rules, protocols and authority is what defenses to make available to potential Covered Persons facing a suspension. Generally, in anti-doping cases the affirmative defenses are fairly limited and the burden that must be met by a defendant is difficult to attain. This is due, in large part, to the strict liability standard that governs doping proceedings.
Within the sport of horseracing, several Covered Persons collectively care and have various responsibilities for the horses. This could include the trainer, owners, veterinarians and each of their employees. As each of those individuals do not necessarily have control or access to the horse on a regular basis, there must be procedural safeguards in place to protect various Covered Persons with limited control or access to the horses. This may include a defense if a Covered Persons could demonstrate they did not know or have a reason to know that a doping violation was taking place with respect to a horse. Furthermore, the Authority should consider whether such a defense would provide specific Covered Persons with no sanction or a reduced sanction under their newly developed rules.
Jared P. Vasiliauskas concentrates his practice primarily in Corporate, Labor/Employment and Sports Law. He has experience in drafting and negotiating a variety of different business agreements on behalf of both companies and employees. His current sports law practice includes working with agents on the representation of their Athletes, and their legal affairs. He has represented Athletes in matters against the United States Anti-Doping Agency and the US Center for SafeSport.
 Under the Act, ‘covered persons’’ means all trainers, owners, breeders, jockeys, racetracks, veterinarians, persons (legal and natural) licensed by a state racing commission and the agents, assigns, and employees of such persons and other horse support personnel who are engaged in the care, training, or racing of covered horses.
 The term ‘‘covered horse’’ means any Thoroughbred horse, or any other horse made subject to this Act by election of the applicable State racing commission or the breed governing organization for such horse under section 4 1205(k), during the period— 5 (A) beginning on the date of the horse’s 6 first timed and reported workout at a racetrack that participates in covered horseraces or at a training facility; and (B) ending on the date on which the Authority receives written notice that the horse has been retired.