The horses thunder down the stretch in the Kentucky Derby— cheered on by 150,000 people at Churchill Downs and millions more around the globe watching on television. Joyous celebrations follow in the winner’s circle. A crushing announcement comes days later that the winning horse’s post-race drug test was positive for a prohibited “medication.” A stewards’ ruling disqualifies the horse and sanctions its trainer. Kentucky’s racing commission, the administrative agency charged by law with “forceful control” of the Commonwealth’s signature industry, after a marathon hearing, affirms the stewards’ decision. The outraged horse owner seeks a review by the Franklin Circuit Court, which, quite unexpectedly, reverses the commission and reinstates the original Derby winner. A higher court reverses that decision, which upholds the disqualification of the horse which crossed the finish line first and confers racing immortality upon the horse that finished second.
Medina Spirit, a timeline:From a surprise Kentucky Derby win to a disqualification
That sequence of events does not describe Medina Spirit, the Bob Baffert-trained Thoroughbred that won last year’s Run for the Roses only to be disqualified on Tuesday due to the presence of an illegal substance in its system. It’s actually a thumbnail sketch of what happened in 1968, when a horse named Dancer’s Image won the Derby only to be disqualified— for the first time in the history of the world’s most famous horse race – because of the presence of a prohibited pain-killing drug (phenylbutazone) in its drug screen. As the 2021 Derby disqualification finally unfolds, the fascinating parallels with the 1968 controversy are already evident.
With the assassinations of Dr. Martin Luther King, Jr. and Senator Robert Kennedy, 1968 was one of the most traumatic years in American history. Horse racing would experience its own upheaval in that year’s Kentucky Derby. The Derby featured a showdown between the country’s two top 3-year-olds, Peter Fuller’s Dancer’s Image and Calumet Farm’s Forward Pass. At the top of the stretch, the Dancer’s jockey, Bobby Ussery, dropped his whip, but persevered with a vigorous hand ride to prevail over Forward Pass by a length.
Peter Fuller, a wealthy Boston car dealer, former captain of the Harvard wrestling team, U.S. Marine Corps veteran, and one-time champion amateur boxer, celebrated with his large family in the only-used-once-a-year winner’s circle. Not far from the racetrack where the Derby euphoria was still going on, two men worked in a testing lab on the urine specimens taken from each of that day’s winning horses. The samples were anonymous, labeled only with a numbered tag. A spectrophotometer – the gold standard for horse racing’s chemists in 1968 – confirmed the accuracy of their previously-administered Mandelin and Vitali tests that one of the day’s winning horses had tested positive for phenylbutazone.
More:When was the last time a Kentucky Derby horse was disqualified for an illegal substance?
A telephone call was placed to Lewis Finley, Churchill’s state steward. Did the judge want to know the identity of the horse with the positive result? “No,” the tired Finley replied, “We’ll look at it on Monday.” On Monday morning, the track’s trio of stewards, including my grandfather, Leo O’Donnell, were aghast to learn that the positive drug test was from Dancer’s Image. On Tuesday, a grim Churchill Downs president Wathen Knebelkamp shocked the sports world by announcing that the Kentucky Derby winner had been disqualified by the track’s stewards and thereafter Forward Pass would be recognized as that year’s Derby winner.
Unlike the Medina Spirit controversy where a stewards’ hearing wasn’t held until nine months after the race (due to wrangling over the testing and re-testing of the horse’s specimens), the Churchill judges held a formal hearing quickly. The stewards in those uncomplicated times had only one ruling to make: since the chemists were infallible, they would disqualify the horse, redistribute the purse, and fine/suspend the horse’s trainer, Lou Cavalaris.
Peter Fuller appealed to the racing commission whose five members endured three weeks of tedious testimony, mostly about head chemist Kenneth Smith’s testing methodologies which were savagely disparaged by expert witnesses. The racing commission upheld the stewards’ decision, but the vigorous attacks on the drug-testing regimens bore fruit when the case went to court. Circuit Judge Henry Meigs, II, after two years of reviewing 14 volumes of commission testimony, shocked the sports world anew when he ruled that Smith’s drug tests were unsupported by “substantial evidence” and thus were insufficient grounds to disqualify Peter Fuller’s horse. Dancer’s Image had won the Kentucky Derby – again.
Two years later, on the eve of the 1972 Kentucky Derby, the Court of Appeals reversed Judge Meigs and reinstated the racing commission’s disqualification of Dancer’s Image. Peter Fuller lost the battle but won the war. As pointed out in Milton C. Toby’s thoroughly-researched book, “Dancer’s Image, the Forgotten Story of the 1968 Kentucky Derby,” no longer would the racing industry’s chemists simply declare a drug test “positive” without being compelled to prove it objectively with updated testing. The sport’s owners and trainers now take for granted their due process rights to have “split samples” of specimens tested by their own labs, rights won through the Dancer’s Image case.
All of these reforms which will be on full display in the upcoming Medina Spirit appeal, were achieved by a man who won and then lost horse racing’s grandest prize and who, in the end, simply wanted to “clear my horse’s name.”
What will be the final outcome this time?
Bob Heleringer is the author of the legal textbook, “Equine Regulatory Law,” and has taught that subject at U of L’s Brandeis School of Law. He can be reached at helringr@bellsouth.net.
