On 21 May 2010, the Court of Arbitration for Sport (CAS) dismissed the appeal filed by WADA against the decision of the American Arbitration Association (AAA) which had imposed a one year suspension on US swimmer Jessica Hardy commencing on 1 August 2008 thereby making her ineligible to compete in the Beijing 2008 Olympic Games.
During the US Olympic team trials in July 2008, Ms. Hardy tested positive for clenbuterol – a steroid on WADA’s Prohibited List. Ms. Hardy’s positive test was caused by a contaminated Advocare Arginine Extreme supplement.
On 30 May 2009, the AAA confirmed the preliminary decision. The next month WADA appealed to CAS requesting that Ms. Hardy be sanctioned with a two year suspension.
The CAS reaffirmed the AAA decision. The CAS found the circumstances of the case truly exceptional for reasons including Ms. Hardy’s demonstrated due diligence in inquiring directly with the manufacturer as to the purity of the supplements and the assurances obtained that they were indeed not contaminated.
Concerned that this finding could compromise her ability to compete in the London 2012 Olympic Games, Ms. Hardy 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 a provision an athlete sanctioned with a suspension of more than six months would be ineligible to compete in the next Olympics. Ms. Hardy qualified to compete in the Beijing Games in the 100m breaststroke, the 50m freestyle and the 4 x 100m freestyle relay but could not compete due to the AAA’s one year suspension.
Unfortunately for Ms. Hardy, CAS rejected the request to have the IOC joined in the arbitration procedure and did not issue any opinion on the applicability of the Olympic Charter’s Rule 45 thereby leaving her future eligibility uncertain for the London Games.