Jessica Hardy, AdvoCare File Suit Against Each Other -- January 30, 2009

By Alan Abrahamson, Universal Sports

BETHESDA, Maryland, January 30. JESSICA Hardy, who tested positive during last summer's U.S. Olympic Trials in swimming for a banned substance, has filed suit against a Texas-based supplement maker, claiming products that it had made and she had taken were tainted.

Hardy, who tested positive at the Trials for the banned stimulant clenbuterol, filed the lawsuit last week in Los Angeles Superior Court against Carrollton, Texas-based AdvoCare International, seeking unspecified damages. on Thursday obtained a copy of the lawsuit.

The 21-year-old Hardy would have been a medal contender in Beijing in two individual events as well as in at least one, maybe two, relays. Instead, as the lawsuit relates, she stayed home, hit with a two-year doping-related suspension, deprived of "once-in-a-lifetime opportunities" while weighing "damage to her reputation."

A call to AdvoCare's office was met with an after-hours recording; C. Brenton Kugler, a Dallas attorney representing the company, could not be reached at his office number. One of Hardy's attorneys, Howard Jacobs, declined to comment.

The Southern California-based Jacobs is one of the leading lawyers in the nation in pursuing cases in which an elite athlete claims damages from an allegedly tainted supplement.

He has represented, among others, swimmer Kicker Vencill, who tested positive in January, 2003, for a by-product of the banned steroid nandrolone. Vencill alleged that a nutritional supplement he was taking, a multivitamin, must have been tainted and in a California court won a jury verdict; after that, the case settled.

Hardy's lawsuit follows a case filed Jan. 16 against her by AdvoCare in a federal court in Texas. In that lawsuit, the company asked a judge to rule both that AdvoCare products did not contain clenbuterol and that her positive test at the 2008 Trials was not caused by any of its products.

Both lawsuits say Hardy agreed in a contract signed Jan. 29, 2008, to endorse AdvoCare products. The company then provided her certain products, including "Arginine Extreme" and Nighttime Recovery."

The point on which the matter is likely to turn involves the testing that both lawsuits allege were done on samples of two particular supplements, "Arginine Extreme" and "Nighttime Recovery."

Clenbuterol can be prescribed for asthma, among other disorders. It has also been advertised as a weight-loss potion. It is a stimulant that can increase aerobic capacity, and that's why it is banned for elite athletes.

The company's case says it "specifically tested the lots of AdvoCare products provided to Hardy," the tests performed by NSF International, a non-profit organization based in Ann Arbor, Mich., that certifies supplements as free from taint for the NFL, among others. Those tests "confirm that no clenbuterol is present in the AdvoCare products," the lawsuit says.

Hardy's lawsuit says she retained Anti-Doping Research in Los Angeles, the lab founded by Don Catlin, the former director of the World Anti-Doping Agency-accredited lab at UCLA.

ADR "tested all of the AdvoCare products used by Ms. Hardy during and immediately prior to the Olympic Trials, using remaining samples from those she had with her at the U.S. Olympic Trials in July 2008, or samples from the same product lot or lots as those she used at the U.S. Olympic Trials in July 2008.

"After extensive testing, ADR detected the presence of clenbuterol in samples of Arginine Extreme and Nighttime Recovery."

So — one lawsuit says the tests didn't find anything, the other says the tests assuredly did.

If the dispute ultimately makes it to a courtroom — and keep in mind that most civil suits settle well before trial — how is this dilemma likely to be resolved?

By learning — which, at this preliminary point, the papers filed with court clerks don't spell out in any detail — which set of tests proved more refined. Think of it this way: if you're looking for something in detail, do you look with a magnifying glass or a microscope?

Stay tuned. Because there's yet another facet to the Hardy matter. That two-year suspension? If she can prove that her exposure to clenbuterol was "inadvertent and unintended," perhaps the time can be cut significantly.

Link to Abrahamson's Universal Sports article.

Since Abrahamson's reporting on Swimming World's partner Universal Sports, AdvoCare has responded with a press release as printed below.

In response to reports that swimmer Jessica Hardy is blaming AdvoCare products for her positive test for a banned substance during the US Olympic Trials, AdvoCare has asked a United States District Court for a declaration that Ms. Hardy's positive test is unrelated to AdvoCare products. Every lot of product Ms. Hardy received from AdvoCare has tested negative (Not Detected) for Clenbuterol, the banned substance for which Hardy tested positive at the U.S. Olympic trials last summer. NSF International, an independent laboratory licensed to test for controlled substances, has certified that none of the AdvoCare products taken by Jessica Hardy as well as the raw materials in the AdvoCare products have any trace of Clenbuterol. AdvoCare submitted these products for testing to dispel false and misleading public reports suggesting that Ms. Hardy's positive test for Clenbuterol resulted from her consumption of AdvoCare products. These test results confirm that Ms. Hardy's positive test is unrelated to AdvoCare products. AdvoCare products do not contain ingredients banned by the United States Anti-Doping Agency (USADA), World Anti-Doping Agency (WADA), NCAA, NFL, MLB, NBA, NHL, MLS, or NASCAR.

AdvoCare strongly adheres to the highest principles of quality and integrity with respect to its products. Every ingredient in each AdvoCare product is listed on the product label. No ingredients are included which are not contained on the label. In addition, the manufacture of AdvoCare products occurs in facilities authorized to produce foods and dietary supplements. Process and Quality Control programs are integral elements of the Quality Assurance programs for each manufacturer. All manufacturers operate in compliance with FDA Good Manufacturing Practices as enforced by the USFDA. Extensive analytical procedures are employed by both the manufacturers as well as third party laboratories to ensure the integrity and identity of each product.

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January 30, 2009 Alan this is ridiculous!

Keep in mind Clenbuterol would wire you and they're saying its in a nighttime (sleep) product? Yeah, right.

And that her ban could be cut down? No chance. Remember: STRICT LIABILITY RULE.

Submitted by: jeffyfit
January 30, 2009 Also remember Vencill supposedly proved the contamination theory but still served his full ban. That's a strong precedent.
Submitted by: jeffyfit
January 31, 2009 I tried out Advocare products last year and was not happy. I used them during a meet and barely slept a wink for 4 days. I wasn't amped up, just wide awake all night. It was horrible. Never again.

I realized that the only thing that could be causing my sleeplessness was the Advocare "supplements" I was taking. It was disturbing that these products had substances in them (stimulants) that I had no interest in ingesting and if fact, wanted to avoid. From Advocare's marketing material, it was the last thing I expected. I looked closely at the ingredients and was surprised to see very high caffeine levels. But the way I felt, whatever was in that stuff, seemed like something way more powerful than caffeine.

When I saw Jessica test positive for stimulants, knowing she used Advocare products, I wasn't surprised. I, for one, believe her when she says she didn't knowingly take illegal stimulants. Advocare relies heavily on stimulants for its results. She paid an immeasurably high price for this company's practices. I wish her success in her law suit.
Submitted by: fluidg
January 31, 2009 Gee, if they were contaminated, why didn't Larsen Jensen among others who took the same stuff, not test positive? Why has no one in any other sport test positive? When MuscleTech and UT had contaminated supplements, athletes from various sports failed tests. This one is only Hardy... uh, not likely.
Submitted by: jeffyfit
February 2, 2009 isn't she responsible for knowing what goes into her body?

Submitted by: XXXXXXXJOSH
February 2, 2009 Josh, she's definitely responsible for what goes into her body, when it comes to U.S. Swimming and FINA, that's clear. I don't think they could shorten her ban much as that would set a bad precedent. Even her own coach stated that he warned her not to take supplements.

However, AdvoCare would be held responsible and liable to her and others if it turns out that they indeed released contaminated product with undisclosed clenbuterol in it, which in addition to leaving them wide open for a civil suit, could also open them up to criminal charges in general.
Submitted by: liquidassets
February 5, 2009 What I would like to know is why and how the results that Jessica has posted in the past few months have not been taken away? She CHEATED!!!!! And I really do not believe the fact that it was in her supplements, for one, you are responsible for what you put in your body; supplements and everything that is in them, secondly she is the second person training with Salo who is claiming this very same thing. Clenbuterol is a STEROID and if you look on the FINA site there was a girl from South Africa just banned because of it, why is Jessica special and not being treated the same way?
I really hate the fact that USA swimming allows there swimmers to get away with so much. They want to blame the rest of the world for cheating and are the first ones to say that others should be banned but they cover up and lighten anything wrong that their swimmers do.
First nothing really has happened to Jess-- is she still training-- that should not be legal under doping rules, she should not still have her WR, or her AR or her world standing and she still has all of those
Michael-- he screwed up, and well pot not really that big of a deal, but he broke the law. I do feel bad for him the pressures he must be under, but there are many other athletes out there who are amazing as well and do not get caught doing stupid things, how many chances is he going to get? DUI, Pot??

Submitted by: anonswiming
February 6, 2009 Clenbuterol is a bit of an oddball drug; it's not really an anabolic steroid but instead enhances performance more as a stimulant; it increases aerobic capacity by central nervous system stimulation, and also as a bronchial dilaor, which further increases oxygen transportation, these effects are relatively short term, unlike the long-term musculoskeletal effects of steroids.

She only tested negative on one day out of several tests at trials, which is unusual, but I believe her times and records from any of the other days there and elsewhere still stand since she didn't test positive on those days. She got a two year ban which I think is similar to others who have tested positive recently, except for the Chinese backstroker,(Ouypeng?) who may have received an indefinite ban.
Submitted by: liquidassets
February 6, 2009 Hardy's ban is retroactive to her date of her positive sample. Since she had a negative test from earlier in the meet, it cannot be assumed that she was in violation the entire meet.

Therefore, her records and times from earlier in the meet were not wiped out. Everything after the positive test date was.

Also, her times and records from earlier in the year cannot be proven to be done while in violation. While it could be questioned whether or not they were legit, it would likely fall under the same category as Wu Yanyan's previous IM world record. For years, it was always written as Wu Yanyan's drug-tainted record.

We'll see if Hardy's records move into that category.
Submitted by: Jason Marsteller
February 8, 2009 I am pretty sure when you test positive they are supposed to go back 8 months and take away everything you have done. Not just from the date that you test positive.
Submitted by: anonswiming
February 8, 2009 That's not the word we got from USA Swimming after this. Also, the same thing happened with Ous Mellouli. He tested positive in Nov. 2006, and the ban went retroactive to that date. That included his 2007 World Championships times.
Submitted by: Jason Marsteller
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Jessica Hardy 2008 U.S. Olympic Headshot
Photo By: Long Photography

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