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. UniversalSports.com 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.
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.