Chaos theory: U.S. swimmer’s doping ruling and Chicago 2016

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I have been thinking about the Jessica Hardy case for the 24 hours since a legal decision radically changed its parameters, and no matter which way I look at it, I keep coming back to these questions:
What is the difference between U.S. swimmer Hardy and Chinese swimmers Qu Jing, Liu Bingyao, Zuo Ziqiao, Fu Bo and Hu Shaozi?

And why might that difference factor into Chicago’s 2016 Olympic hopes?

First, the facts (with a little interpretation, of course):

* All six swimmers tested positive last year for the anabolic steroid clenbuterol.

* The five Chinese have received two-year suspensions, as mandated by the World Anti-Doping Code, from their national swimming federation.

* Hardy’s two-year suspension was cut in half by an American Arbitration Assn. panel that on Monday issued one of the strangest rulings in what long has been an Alice-in-Wonderland world of doping punishments.

* Either the International Olympic Committee or the international swimming federation (FINA) can appeal the AAA ruling to the Court of Arbitration for Sport, and it would be a surprise if neither did.

In successive sentences, the ruling acknowledged that Hardy had been both negligent and diligent in her use of a supplement -- AdvoCare Arginine Extreme -- allegedly contaminated by clenbuterol.
But the oddest part of the ruling was the AAA panel’s clear desire to challenge a new IOC rule that would keep Hardy from competing in the 2012 Olympics (the positive test for clenbuterol at the 2008 Olympic trials, where she had qualified for the U.S. team in two events and relay pools, already banned her from the Beijing Games.)

Let’s go through this item by item:

1) Length of suspension

The revised World Anti-Doping Code has abandoned the idea of one-size-fits-all sanctions, allowing lessened sanctions ‘where the athlete can establish the substance involved was not intended to enhance performance.’’

Hardy’s lawyer, Howard Jacobs, successfully argued that the swimmer had asked the supplement maker, for which she was an endorser, about any possible contamination and was told the medicine was pure. That was the diligence part. But she still was guilty under strict liability provisions of the WADA code. That is the negligence part. The AAA panel obviously bought the contention that Hardy’s attempt to establish what was in the supplements meant she was not seeking performance enhancement.

There have been few details forthcoming from China about its clenbuterol cases, which occurred in testing at a June 2008 national event. But it would not be presumptuous to assume that the swimmers did not (could not?) bring their cases before an independent hearing panel like AAA. And they could not expect any leniency from Chinese swimming authorities who have been -- and continue to be -- embarrassed by two decades of being the sport’s outlaw nation in terms of doping.

And even though the AAA panel was well within its legal bounds in reducing Hardy’s suspension, it also would not be presumptuous to assume the Chinese must wonder if the United States plays within one set of rules and the rest of the world another when it comes to the fight against doping.

2) Alphabet soup wars: IOC vs. AAA

A few days before Hardy gave the sample that tested positive, the IOC executive board amended Rule 45 of the Olympic Charter by adding a provision that makes an athlete ineligible for the next two Olympics after receiving a doping suspension of more than six months. That would, of course, apply to Hardy, even after she got the maximum allowable reduction in her suspension. (But try to find that new language in the version of the Olympic Charter available online. So far, it is contained only in a June 27, 2008, letter signed by IOC President Jacques Rogge and director general Urs Lacotte.)

The AAA ruling on Hardy called the new IOC penalty ‘evidently grossly disproportionate’’ and ‘far in excess of what should be expected when applying the principles of fundamental justice and fairness in the circumstances of this case.’’ The AAA then called the IOC’s bluff, in a manner of speaking, by saying it reserved the right to cut the length of the suspension to six months if the IOC does not grant Hardy a waiver from the Rule 45 amendment.

3) The impact on Chicago’s Olympic bid

The ruling’s attitude of defiance, on the part of a U.S.-based legal organization, gives further ammunition to those critics who find the U.S. both A) still holier than thou in its anti-doping efforts, even after having to clean up the mess left by Marion Jones et al.; and B) still unwilling to play the game the same way as the rest of the Olympic world, whether they involve sharing revenues or sanctioning dopers.

4) Hanging in the background of all this, as my colleague Ron Judd pointed out so clearly in his Seattle Times blog, is the injustice done to Tara Kirk because USA Swimming and the U.S. Anti-Doping Agency and the UCLA testing lab were bureaucratic boobs in the handling of Hardy’s positive. Unnecessary delays in the process meant the deadline had passed for Kirk to be given the 2008 Olympic team spot Hardy forfeited.

The procedural snafus weren’t Hardy’s fault, of course.

But taking a tainted supplement was, as she readily admitted. And if she had so many questions about the supplement, why did she risk it? Maybe the money in the endorsement deal, signed in January 2008?

Those questions no longer seem relevant, except in the ongoing lawsuits involving Hardy and the supplement maker. The questions that remain involve unequal justice, which the revised WADA code made possible, and the challenge to IOC authority, which often is entirely justifiable but rarely is advisable for a country bidding to become an Olympic host.

-- Philip Hersh