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Ron Judd's Olympics Insider

Ron Judd, an Olympics junkie and Seattle Times columnist who has covered Olympic sports since 1997, will use this space to serve up news and opinion on the Summer and Winter Games -- also inviting you to chime in on Planet Earth's biggest get-together.

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August 4, 2008 10:05 AM

Hardy presses forward with tainted-supplement defense

Posted by Ron Judd

Attorneys for U.S. swimmer Jessica Hardy, bounced from the Beijing Olympic team after a positive doping test for the banned anabolic agent clenbuterol at the Olympic Trials July 4, told arbitrators she believes the substance came from a tainted nutritional supplement -- or through sabotage.

Hardy deferred an appeal of the doping conviction -- and its accompanying two-year suspension -- because testing of supplements she took in July could not be conducted before the American Arbitration Association hearing on July 31, the order from the arbitration panel reveals.

The panel thus agreed to split her appeal into two phases. The first, determining the validity of the July 4 positive -- which has been described by Hardy attorneys and the U.S. Anti-Doping Agency as a "low positive," although no actual test results have been released -- was settled last week when Hardy conceded to the test's accuracy. Both her "A" and "B" samples had tested positive for the substance, which often is used, illegally, as an aerobic enhancer and weight-loss drug.

The second phase will be to consider "exceptional circumstances ... that might reduce or eliminate the presumptive period of ineligibility." A hearing on those matters, according to the arbitration decision, is scheduled for Tuesday, Aug. 5 UPDATE: A USADA spokesperson now says the hearing will be rescheduled to a "later date.") Issues in that hearing will be limited to "(1) the issue of supplement contamination and (2) the issue of sabotage," the arbitration order states.

Hardy, 21, of Long Beach, has proclaimed her innocence, saying she had never heard of clenbuterol until the positive test results. Some of her surrogates, including one coach, immediately pointed to the possibility of tainted supplements after her positive test. But Hardy has not spoken publicly about the supplement issue, nor has the possibility of sabotage been mentioned publicly by anyone in her camp.

It's not known what supplements Hardy was ingesting leading up to the Olympic Trials. But she is one of a handful of U.S. Olympians listed as endorsers of nutritional supplements produced by AdvoCare of Carrollton, TX. That company has issued a statement saying it has a long, clean record with Olympic-level athletes and nutritional supplements.

Tainted supplements by other manufacturers have, however, been proven in court to have tripped up elite athletes in doping tests. Swimmer Kicker Vencill in 2005 won a legal judgment against a company that provided him with multivitamins contaminated with steroid precursors that resulted in a positive dope test and two-year ban from the sport. The process of clearing his name took two and a half years.

Vencill sued the manufacturer, Ultimate Nutrition of Farmington, Conn., after having his own, independent tests done on the supplements. Vencill received a judgment of $578,000 in May, 2005, but his suspension from swimming was never reduced nor set aside, and he missed a shot at the 2004 Athens Olympics while adjudicating the matter.

Under U.S. and international doping rules, ignorance of the ingestion source is no defense. USADA operates under a policy of "strict liability," meaning that athletes are responsible for any banned substance they put into their own body, through any means. The agency does, however, have the ability to reduce ineligibility bans if confronted with evidence of "exceptional circumstances," such as the one Hardy clearly hopes to establish in her case.

Hardy is represented by Los Angeles attorney Howard Jacobs, who also represented Vencill and many other athletes who failed drug tests. Jacobs, at the time of Vencill's trial, said the verdict should send a message to supplement manufacturers to clean up their acts. But U.S. doping officials long have warned against using nutritional supplements, which, becuase they are not regulated by the federal Food and Drug Administration, essentially set their own standards for safety and purity.

Hardy "withdrew" from the U.S. Olympic squad last week, in spite of the fact that she already was under suspension for the positive test. The unusually accommodating stance of USADA in the matter -- positive-tested athletes don't really have the legal right to "withdraw" from anything, and USADA CEO Travis Tygart actually praised Hardy for her selflessness in a news release -- suggests that the agency might believe she ingested the substance without her knowledge.

Hardy in the abritation decision also maintained the right to appeal her initial postive-drug test to the international Court of Arbitration for Sport (CAS), presumably in the event she could prove accidental ingestion of the banned substance, within 21 days.

Hardy's suspension from the Olympic team -- specifically the handling of it by officials with the sport's parent organization, USA Swimming -- has sparked rancor throughout the swim community. USA Swimming officials maintain they did not learn of the positive doping test until July 21 -- the same day they had established as a deadline to submit the final Olympic roster to the U.S. Olympic Committee, which submitted the names to international officials July 23.

Some swimmers and coaches, however, including third-place Trials finishers such as Tara Kirk of Bremerton, who in most other sports would have moved into an Olympic team spot after Hardy's results were disqualified, have angrily denounced USA Swimming's failure to immediately name team alternates after learning of the dope test.

Instead, the organization stuck to its internal rules of filling the Olympic-race slots vacated by Hardy, who qualified in two individual and two relay events, by other swimmers already on the Olympic team. As a result, swimmers such as Kirk -- who beat Rebecca Soni, Hardy's eventual replacement in the 100 breastroke, at the Olympic Trials -- will remain on the sidelines as the Beijing Games begin.

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Blogroll and links The official International Olympic Committtee site, with news releases, a searchable Olympic medals database and other archival information. Olympic news site from one of the Games' primary sponsors.
NBC Olympics columnist Alan Abrahamson's column/blog
Chicago Tribune Olympic sports writer Philip Hersh's blog U.S. Olympic Committee's athlete web site. Ed and Sheila Hula's Olympic News Service (subscription). News service with audio, video and text coverage of Olympic sports, during and between Olympics. Free, but charges for live video feed subscriptions. Beijing Organizing Committee Web site. Vancouver Organizing Committee's 2010 Winter Games site. London 2012 Summer Games site. Sochi, Russia's 2014 Winter Games site. Candidate city Chicago's summer 2016 bid committee site.
Olympic swimmer Tara Kirk's highly entertaining WCSN blog
Bellevue Olympian Scott Macartney's WCSN alpine ski-racing blog
Other WCSN Olympic athlete blogs.