Updated late May 5
LOS ANGELES, California, May 4. ACCORDING to a press release sent out by Jessica Hardy's legal representation, Hardy's suspension for a positive test for Clenbuterol has been reduced to one year. Hardy tested positive for the banned substance at the 2008 U.S. Olympic Trials in Omaha, Neb., setting off a firestorm of controversy regarding who would replace her on the U.S. Olympic roster.
The press release states that the American Arbitration Association (AAA) found that Hardy's positive test came from a contaminated supplement sample.
Additionally, should Hardy's one-year suspension fall under the auspices of the new rule where any doping ban for longer than six months would preclude Hardy from competing at the 2012 London Games, the AAA would consider further limiting the suspension.
This is the second high profile doping case for the U.S. ending in a contaminated supplement. Kicker Vencill once drew a four-year suspension, later reduced to two years, before winning a lawsuit to prove his innocence of intent to dope.
Here is the full press release from lawyer Howard Jacobs:
Los Angeles (May 4, 2009) – The American Arbitration Association today issued its decision suspending Jessica Hardy from competition from August 1, 2008 through July 31, 2009 for her inadvertent use of a contaminated supplement, thereby allowing her to return to competition this summer. The positive test occurred at the 2008 U.S. Olympic Trials, where Jessica Hardy qualified for the U.S. Olympic team in four events. As a result of the positive test, Jessica Hardy voluntarily withdrew from the Olympic team.
In its decision, the AAA Panel found that a longer sanction would be disproportionate to the facts of the case, relying in part on the following:
-The arbitrators found that Jessica Hardy's positive test was caused by a contaminated Advocare Arginine Extreme supplement.
-Jessica Hardy received personal assurances from Advocare regarding the purity of its supplements.
-The arbitrators found that under all of the circumstances, Jessica Hardy should receive the shortest possible suspension allowed under the rules
-The arbitrators also considered the possible application of a new rule of the International Olympic Committee ("IOC"), which could potentially preclude Jessica Hardy from competing at the 2012 Olympic Games, since her penalty is longer than 6 months. The arbitrators stated that such a result would be "grossly disproportionate," and stated that they would retain jurisdiction to reconsider the length of the penalty if the IOC did not waive the application of its new rule to Jessica Hardy.
In responding to the AAA decision, Jessica Hardy stated as follows:
"I am extremely happy that the Arbitration Panel was persuaded by my scientific proof of supplement contamination, and that they believed me when I told them that I never have and never will use performance enhancing drugs. I look forward to returning to competition as soon as possible and proving that my prior successes, including at the Olympic Trials, were achieved solely through hard work and discipline, with no shortcuts. The past year, including missing the 2008 Olympic Games, has been heartbreaking, the most difficult year of my life. It was made more tolerable by the numerous expressions of support I received from teammates, competitors, and fans all over the world, for which I will always be grateful.
I look forward to again representing my country, and will prepare for the upcoming season with the utmost determination."
USA Swimming released the following statement regarding the ruling:
We are glad that this situation has been resolved. Jessica has served a significant penalty and has taken responsibility for her actions, which were ruled unintentional. The importance in being diligent in following the anti-doping rules cannot be overstated, and this case should serve as a stern reminder to all athletes to take extreme care with everything they put into their bodies.
USADA also released the following press release:
Colorado Springs, Colo. (May 4, 2009) – An independent, three-member American Arbitration Association/Court of Arbitration for Sport (AAA/CAS) panel issued its decision today in the case of U.S. Swimmer Jessica Hardy, from a positive drug test during last year's U.S. Olympic Trials.
On July 4, 2008, Ms. Hardy tested positive for the anabolic agent, clenbuterol. Following proceedings, instituted pursuant to the USADA Protocol on August 1, 2008, Ms. Hardy voluntarily withdrew from the 2008 U.S. Olympic Team, reserving her right to seek a reduction to her period of ineligibility.
The AAA/CAS panel heard evidence in January and March of this year concerning Ms. Hardy's claim that her supplements were contaminated with clenbuterol. Ms. Hardy fully accepted responsibility for her negligence in taking supplements in light of education and warnings provided by USADA regarding the associated risks. The AAA/CAS panel credited Ms. Hardy's evidence of contamination and determined that she had exercised sufficient diligence in her investigation of the supplements to be entitled to a reduction of her period of ineligibility. The AAA/CAS panel assigned a one-year period of ineligibility to conclude on July 31, 2009.
The panel also retained jurisdiction for possible consideration at a later date of the potential impact of the International Olympic Committee's (IOC) Rule 45 on Ms. Hardy. The IOC's Rule 45, effective July 1, 2008, prohibits an athlete who has been sanctioned by more than six months from competing in the next two Olympic Games.
In an effort to aid athletes, as well as all support team members such as parents and coaches, in understanding the rules applicable to them, USADA provides comprehensive instruction on its website on the testing process and prohibited substances, how to obtain permission to use a necessary medication, and the risks and dangers of taking supplements as well as performance-enhancing and recreational drugs. In addition, the agency manages a drug reference hotline, conducts educational sessions with National Governing Bodies and their athletes, and proactively distributes a multitude of educational materials, such as the Guide to Prohibited Substances and Methods, easy-reference wallet cards, periodic newsletters, and protocol and policy reference documentation.
USADA is responsible for the testing and results management process for athletes in the U.S. Olympic and Paralympic Movement, and is equally dedicated to preserving the integrity of sport through research initiatives and educational programs.
AdvoCare, the company listed in the Hardy arbitration, has disputed the findings of the panel. Here is AdvoCare's response to the decision:
May 5, 2009 – On May 4, 2009, the arbitration panel presiding over Jessica Hardy's appeal of her suspension reduced Ms. Hardy's suspension to one year, finding that Ms. Hardy met her burden of proof in showing that an AdvoCare supplement she consumed was contaminated with a slight trace of clenbuterol, a banned substance.
The arbitration panel's finding is in direct conflict with testing conducted by two independent laboratories, both of which found no evidence that clenbuterol was present in the AdvoCare supplements consumed by Ms. Hardy. Every single raw material used in the specific lots consumed by Ms. Hardy also tested negative (Not Detected) for Clenbuterol.
NSF International, an independent laboratory licensed to test for controlled substances, certified these test results. The results were also certified by HFL Sports Science, a leader in nutritional supplement testing with a WADA-experienced laboratory that adheres to ISO 17025 standards for sports supplements and has analyzed more samples for banned substances than any other lab in the world. Moreover, the arbitration panel's finding that Ms. Hardy had met her burden of proof in showing supplement contamination was based solely upon information presented by Ms. Hardy and her legal team. AdvoCare was not permitted to participate in the arbitration proceeding. AdvoCare was not allowed to question witnesses or present any evidence to the arbitration panel. The arbitration panel also denied AdvoCare's requests to attend the hearing and have the proceedings transcribed by a court reporter.
For these reasons, AdvoCare believes that the arbitration was severely flawed and the panel's finding regarding the purity of AdvoCare's products is not supported by the facts or evidence. As noted previously, AdvoCare has instituted a lawsuit in the Northern District of Texas against Ms. Hardy in which AdvoCare is seeking a judicial determination that the AdvoCare products consumed by Ms. Hardy did not contain clenbuterol. AdvoCare believes that after consideration of evidence presented by both AdvoCare and Ms. Hardy that it will prevail in the lawsuit.
AdvoCare International, LP is a health and wellness company headquartered in Carrollton, Texas that markets nutrition and skin care products through independent distributors throughout the United States. For more than 15 years, AdvoCare has offered nutritional supplements and vitamins of the highest quality developed through comprehensive research and backed by a Scientific Medical Advisory Board. For more information on AdvoCare, visit www.advocare.com or call 800-542-4800.