The case involves swimmer Jessica Hardy, who tested positive for Clenbuterol during the 2008 U.S. Olympic Team Trials, leading to a legal dispute over the appropriate sanction for her anti-doping violation. The American Arbitration Association (AAA) initially imposed a one-year suspension, finding that Hardy's use of a contaminated nutritional supplement constituted ordinary negligence rather than significant fault. The World Anti-Doping Agency (WADA) appealed this decision to the Court of Arbitration for Sport (CAS), arguing for a standard two-year suspension. The CAS panel, composed of Prof. Luigi Fumagalli, Prof. Ulrich Haas, and Mr. Michele Bernasconi, upheld the AAA's decision, ruling that Hardy's circumstances were "truly exceptional" and justified the reduced sanction.
The panel examined several legal principles, including the applicability of new regulations under the doctrines of "tempus regit actum" (new rules do not apply retroactively) and "lex mitior" (more favorable rules can apply retroactively). It also clarified procedural issues, such as the conditions under which third parties like the International Olympic Committee (IOC) could participate in CAS proceedings. The panel determined that the IOC could not be compelled to join the case, as it was not bound by the arbitration agreement underlying the dispute.
Hardy argued that the prohibited substance entered her system through contaminated supplements purchased from a reputable source, AdvoCare. The panel acknowledged her efforts to verify the supplements' safety, including consultations with the manufacturer and sports professionals, as well as securing an indemnity agreement. While Hardy demonstrated reasonable diligence, the panel noted she could have taken additional precautions, such as independent testing. However, her actions were deemed sufficient to reduce her fault to ordinary negligence, warranting a one-year suspension instead of the standard two years.
The panel also addressed the proportionality of the sanction, rejecting WADA's proposal to split the suspension into two separate one-year periods. It emphasized that such a division lacked legal basis and would unfairly penalize Hardy. Additionally, the panel dismissed Hardy's request for a declaratory judgment regarding the IOC's Rule 45, which bars athletes suspended for more than six months from competing in the next Olympics. The panel found that Hardy lacked the necessary legal interest under Swiss law to challenge the rule in this proceeding, as the issue was abstract and not directly tied to the current dispute.
The case highlighted the complexities of anti-doping regulations and the balance between strict enforcement and fairness. The panel's decision reinforced the importance of context in evaluating violations, acknowledging athletes' efforts to mitigate risks while upholding the integrity of the anti-doping system. Ultimately, the CAS panel affirmed the AAA's one-year suspension, concluding it was proportionate to Hardy's level of negligence and the exceptional circumstances of her case. The ruling underscored the need for clarity in procedural rules and the consistent application of sanctions across all athletes, regardless of their competitive level.