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Thursday, April 28, 2011
Jessica Hardy ruling is the right one

By Bonnie D. Ford

Swimmer Jessica Hardy has a clear lane and nothing but flip turns and electronic timers ahead of her in her quest to compete for the U.S. Olympic team next year. She'll get her shot at qualifying in the pool rather than in the quasi-judicial setting of sports jurisprudence, and that's the right call for her and for athletes in general.

The International Olympic Committee ruled this week that Hardy -- the world record holder in the 50- and 100-meter breaststroke events -- is exempt from Rule 45, a new eligibility standard introduced in 2008. The rule bars any athlete who had a doping conviction of six months or longer from competing in the next Olympics. Although the IOC's written decision has not yet been made public, Hardy's lawyer, Howard Jacobs, said the ruling turned on the fact that Rule 45 was implemented three days before Hardy's positive test for clenbuterol in June 2008, making it impossible "for her to have known the rule existed," he said.

Hardy's case was unique from the start. In a rarity, she was able to prove through physical evidence that the source of the clenbuterol was a tainted supplement, and her suspension was reduced from the mandatory two years to one. By contrast, triple Tour de France winner Alberto Contador has claimed his clenbuterol positive test last summer is attributable to contaminated meat, even though he could present only general statistics to support his contention. A favorably disposed Spanish panel exonerated him, a verdict that is being appealed.

As I've pointed out innumerable times, the way anti-doping "justice" is meted out can be outrageously uneven and often depends on the ethics and will of the country and the sport involved. Hardy's case was judged by the standard of strict liability, which the Contador panel ignored.

All athletes who compete in sports governed by the World Anti-Doping Agency code understand they are submitting themselves to that imperfect system. The code is an evolving document that has grown more nuanced over the years -- and it's complicated enough without adding another bureaucratic layer.

Depending on what "the next Olympics" is, an athlete could see a suspension extended anywhere from months to years beyond what (hopefully) thoughtful arbitrators have decided through two rounds of hearings. That constitutes willfully blind double jeopardy that contradicts everything about what is supposed to be a uniform code around the world.

The U.S. Olympic Committee has declined to take a public position on the issue, but its decision to challenge Rule 45 before the Court of Arbitration for Sport speaks for itself. In another development this week, the USOC and IOC announced they are jointly seeking a CAS ruling on the general issue in order to clarify matters for all athletes who could be affected, including 400-meter world champion LaShawn Merritt, the other prominent U.S. athlete who could be barred from racing in London. The decision in Hardy's case -- which she and Jacobs have pursued for months -- has no bearing on Merritt or any other athlete.

Some nations have added their own sanctions to the WADA code. Great Britain imposes lifetime bans from the Olympics for athletes convicted of doping offenses, which is why cyclist David Millar, one of the most publicly penitent and outspoken athletes on the subject, didn't race in 2008 and won't compete in London. That rubs me the wrong way. Not so much because of Millar's conduct since his return, but because I subscribe to the concept of paying one's debt and being done with it.  Sure, my feelings are tested by certain egregious cases, but international sport by its very nature should strive for equality across national lines.

Punishment of a first doping offense should be finite and fair. Those who disagree and want longer suspensions or lifetime bans ought to lobby to have the WADA code changed. Until that happens, Rule 45 should go the way of tug-of-war and live pigeon shooting and be booted from the Olympics.