CAS Dismiss WADA Appeal re Jessica Hardy

Lausanne, 21 May 2010 - The Court of Arbitration for Sport (CAS) has dismissed the appeal filed by the World Anti-Doping Agency (WADA) against the decision of the American Arbitration Association (AAA) imposing a one year suspension on the US swimmer Jessica Hardy, commencing on 1 August 2008.

In July 2008, Jessica Hardy competed in the US Olympic team trials in Omaha, USA, in order to qualify for the Beijing Olympic Games. During this event, Jessica Hardy underwent a doping control which was later reported to be positive for clenbuterol, a prohibited substance (steroid). Such adverse analytical finding was confirmed by the B sample analysis. By a decision of 30 May 2009, the AAA confirmed a preliminary decision in the same matter, which imposed a one year ban commencing on 1 August 2008. The AAA Panel considered that the negligence of the athlete was not significant as she took nutritional supplements after having obtained assurances from the manufacturer.

On 11 June 2009, the World Anti-Doping Agency (WADA) filed a statement of appeal with the CAS requesting that Jessica Hardy be sanctioned with a period of suspension of two years, starting on the date of the CAS award. The case was submitted to a panel of CAS arbitrators composed of Prof. Luigi Fumagalli, President (Italy), Prof. Ulrich Haas (Germany) and Mr Michele Bernasconi (Switzerland). A hearing took place in New York on 12 March 2010 during which the parties and their counsel were heard.

The CAS arbitrators confirmed the challenged decision. They agreed that Jessica Hardy had shown good faith efforts before ingesting the food supplements at stake: she had made the research and investigation which could reasonably be expected from an informed athlete wishing to avoid risks connected to the use of food supplements. In particular, the athlete had personal conversations with the manufacturer about the supplements’ purity prior to taking them, she obtained the supplements directly from the manufacturer, not from an unknown source; thesupplements she took were not labelled in a manner which might have raised suspicions. Consequently, the CAS Panel confirmed the one year suspension commencing on 1 August 2008 and concluding on 31 July 2009, a suspension which has already been served by the athlete.

In her submissions, Jessica Hardy requested that the International Olympic Committee (IOC) be added as a party to the arbitration procedure and requested a declaratory finding from the CAS as to the applicability of Rule 45 of the Olympic Charter in her case considering that in accordance with such provision, an athlete sanctioned with a suspension of more than six months would be ineligible to participate in the next edition of the Olympic Games. The CAS Panel rejected the request to have the IOC joined in the arbitration procedure and did not issue any opinion on the applicability of Rule 45 of the Olympic Charter.

The full award, with the grounds, is published on the CAS website (https://www.tas- cas.org/recent-decision).