Sports Law

WADA v Hardy and USADA (no significant fault)

Jessica Hardy qualified, in 4 events, for the USA swim team at the 2008 US Olympic Team Trials, but then recorded a positive result for Clenbuterol. Subsequently, the results were attributed to a contaminated supplement. The dispute related to whether Ms Hardy could establish that she bore “No Significant Fault or Negligence”.

The Panel discussed the circumstances where an athlete’s negligence might be “significant”, referring to the substantial CAS jurisprudence. The Panel reasoned that a period of ineligibility could be reduced based on no significant fault or negligence only in cases where the circumstances were truly exceptional and not in the vast majority of cases (for instance, a reduced sanction based on “no significant fault or negligence” could be applied where the athlete established that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances and the athlete exercised care in not taking other nutritional supplements). The fact that an adverse analytical finding was the result of the use of a contaminated nutritional supplement did not imply per se that the athlete’s negligence was “significant”.

The Panel concluded that Ms Hardy’s case was “truly exceptional”: Ms Hardy had personal conversations with the manufacturer about the supplements’ purity prior to taking them; Ms Hardy had been told by the manufacturer that its products were tested by an independent company for purity, and its website confirmed that, though only with respect to one of its products; the manufacturer’s website assured that its products were “formulated with quality ingredients”; Hardy had obtained the supplements directly from the manufacturer, not from an unknown source; the supplements Ms Hardy took were not labelled in a manner which might have raised suspicions; Ms Hardy took the same supplements for at least eight months prior to her positive doping control result; Ms Hardy had obtained an indemnity from the manufacturer with respect to its products; Ms Hardy had consulted with various swimming personnel, including the team nutritionist and the USOC sports psychologist, and her coach, about the quality of the the manufacturer’s products. In other words, Ms Hardy appeared to have purchased the supplements which caused the Adverse Analytical Finding from a source unrelated to prohibited substances, and exercised care in not taking other nutritional supplements.

The Panel noted that in determining the length of the sanction, the degree of negligence was relevant: in deciding the period of ineligibility in a range between one and two years, the Panel had to review the level of the athlete’s fault or negligence. The Panel concluded that, not in a significant measure, Ms Hardy was negligent: her Adverse Analytical Finding occurred years after that the risks connected to the use of nutritional supplements had first become known to athletes. Much information had been given and stringent warnings had been issued in this respect. The Panel concluded that the level of diligence due by an athlete had risen over the years; and the athlete’s behaviour should be considered with care, when assessing the measure of the reduction of the sanction he or she should receive. The Panel confirmed the 1 year sanction on Ms Hardy.