The World Anti-Doping Agency (WADA), which is effectively the International Olympic Committee’s doping arm, will have its appeal of Jessica Hardy’s suspension reduction heard by the Court of Arbitration of Sport this Friday, March 12th.
The Jessica Hardy saga is a long, complicated, and well-publicized one that has both highs and lows.
On July 4, 2008, at the U.S. Olympic Trials, Jessica Hardy tested positive for the banned substance Clenbuterol. Clenbuterol is typically prescribed to asthma patients to help them breathe easier, but in high-level athletes can be used to increase aerobic capacity, blood pressure, and oxygen transportation, as well as stimulate the nervous system.
Although Hardy tested positive in only the second of three drug tests, Clenbuterol’s relatively quick decay rate prevented Hardy from using this as a defense. On July 23, 2008, Hardy, who was at the time training with her teammates for the Beijing games, was notified that both the A and B samples tested positive for this drug. At this point, Hardy voluntarily left the Olympic team, but reserved the right to challenge her positive tests.
This she did, by claiming that her positive test was a result of a contaminated supplement called Arginine Extreme that she mixed in her water. The supplement itself was supposed to contain only legal ingredients, but Hardy contended that she had received a batch that had somehow, through no fault of her own, been contaminated with Clenbuterol.
To her credit, Hardy took responsibility for the fact that she did take the supplement at her own risk, but sought a reduction from the anticipated 2-year ban. An independent panel from the American Arbitration Association and the Court of Arbitration for Sport credited her evidence of contamination, and reduced her suspension to 1-year.
After serving her one year suspension, Hardy came back with a bang, and broke her own SCM 50 breaststroke record 4 times in the 5 FINA World Cup meets, and in the process became the first woman sub-29 seconds in the event, and won the 2009 series title and accompanying $100,000 grand prize.
That brings us up to now. The WADA is appealing the arbitration panel’s decision, and wants them to tack another year onto Hardy’s suspension. In addition, they want to invoke Article 45 of the IOC charter, which says that any athlete that receives more than a 6-month doping suspension is to be banned from the next Olympic games, regardless of whether those games fall within the suspension period.
There has been some question within the legal community as to the legality of this particular rule. According to the World Sports Law Report, this rule has actually inhibited international federations from cracking down on those convicted of doping, because they have handed out only 6-month suspensions to avoid legal challenges to article 45.
Article 45 went into effect on July 1, 2008; only days before Hardy’s positive test.
The WADA has decided that they are ready to throw their challenge out there, and to see what happens. At the very least, they have the support to extend Hardy’s suspension, and appeal the decision that a contaminated supplement was responsible. Advocare, the maker of Arginine Extreme, has steadfastly disputed that their supplement had any Clenbuterol in it (surprise, surprise). In a May 4, 2009 story in the Chicago Tribune, Advocare claims that “Every single raw material used in the specific lots consumed by Ms. Hardy also tested negative (Not Detected) for Clenbuterol.”
The arbitration panel didn’t allow Advocare to have any voice in the original arbitration, either by presenting evidence or interviewing any witnesses. It is likely that the WADA will use this evidence when it makes it case before the CAS this Friday.
While they may be successful in extending Hardy’s suspension on the strength of this evidence (although, it seems as though this would be a bit of an awkward situation, considering Hardy has been swimming and breaking World Records in the mean-time), the real question will be about what sort of long-lasting ramifications on anti-doping regulations world-wide.
It seems to me as though Hardy served an appropriate suspension, and already missed an Olympic Games (although it was technically voluntary), and that it’s time to move on. I understand that the WADA needs to make an example out of somebody, but I think that they will be fighting an uphill and unpopular battle in this particular case.
Tyler- The arbitration panel was appointed by the Court of Arbitration of sport-The American Arbitration Association is simply an organization of arbiters. They’re not a governing body, they’re just an administrative organization that was appointed by the international body.
And it was a joint panel of the AAA and the Court of Arbitration of Sport (CAS). The CAS is an international organization that effectively acts as the United Nations Court for anything involving the Olympics, and for disputes within any organization that has specifically named the CAS as the court-authority for their group (which is most international organizations). In other words, that part is not being disputed by anyone. After all, the arbiters have to come from SOME country, right?… Read more »
What I don’t understand is how an American arbitration panel could reduce a ruling that is imposed by FINA and WADA? From that alone the two years should stand.
Also, what happened to “strict liability”? Doesn’t matter how it got there, but because it was, it’s your issue. Right?… maybe not.
I’ve always thought Hardy to be a great swimmer, but I do wonder how she could have somehow tested positive from Advocare but no other athletes who use it ever have. And lots have, and lots even at the meet she tested positive at. Just seems strange. To avoid this tough decision making, I think following strict liability is the best thing to do.
WADA prefers ‘judicial interpretation’ to ‘clear rules drafting’, and the effect of that has had detrimental effect to many an Athlete or Federation.
WADA also does not seem to grasp that it could expand its budget through ‘certification services’ to offer ‘Gold Star’ licenses to any supplement-manufacturer who could pass a “WADA-testing” for the purity of their supply and manufacturing process.
Although Laboratory Standardization is a component in the ‘make-up’ of the WADA structure, there is absolutely no standardization after 6-11 years of existence (measured from either date of the CODE implementation, or from the Conference that established WADA). See their own statistics for a measure of disparity!
http://wadawatch.blogspot.com/2009/11/beau-jo-lab-stats-nouveau-est-arrivee.html
“The Beau-jo (Lab stats)… Read more »
Elex, I agree in principal. I think she should’ve been suspended for 2 years to begin with. But I’m not positive if I think they should go back and add another year. If the spiked supplement defense was not a valid defense to begin with, then what other reason should they have to extend the suspension now? There’s been no other revelations in the case to extend the suspension, unless the WADA argues that it was a mistake to consider the evidence in the first place. I’m not sure that they could strong arm the CAS to admit to that unless they had some strong legal precedent, but I’m no lawyer, so I can’t speak to that.
If you erase… Read more »
Elex, I agree that it seems pretty straight forward, but as we all well know, the legal systems that bind us swimming community are not as clear cut as we hope they be! In other words, they are going to drag Hardy through the mud here even more and truly open up a can of worms which should just remain closed at this point (at least in my opinion).
She learned her lesson, let her swim!
Seems pretty straightforward:
1) Jessica Harly should be suspended for two years for her clenbuterol infraction. The allegedly “spiked” supplement defence is not a valid defence argument in any such situation (regardless of the fact that her assertion about the supplement has never been proven).
2) Her records accomplished since her premature comeback should not be recognized by FINA
3) She already missed one Olympic Games (Beijing 2008) for her infraction and should not have to miss a second Olympics (London 2012)for the same offence.