DC 3 PROOF OF DOPING

Doping Control Rules 2009-2013

DC 3.1 Burdens and Standards of Proof

FINA and its Member Federations shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether FINA or the Member Federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Rules place the burden of proof upon the Competitor or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in DC 10.4 and DC 10.6 where the Competitor must satisfy a higher burden of proof.

[Comment to DC 3.1: This standard of proof required to be met by the Anti-Doping Organization is comparable to the standard which is applied in most countries to cases involving professional misconduct. It has also been widely applied by courts and hearing panels in doping cases. See, for example, the CAS decision in N., J., Y., W. v. FINA, CAS 98/208, 22 December 1998.]

DC 3.2 Methods of Establishing Facts and Presumptions
Facts related to anti-doping rule violations may be established by any reliable means, including admissions. The following rules of proof shall be applicable in doping cases:

[Comment to DC 3.2: For example, FINA or the Member Federation may establish an anti-doping rule violation under DC 2.2 (Use or Attempted Use of a Prohibited Substance or Prohibited Method) based on the Competitor’s admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from either an A or B Sample as provided in the Comments to DC 2.2, or conclusions drawn from the profile of a series of the Competitor’s blood or urine Samples.]

DC 3.2.1 WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for Laboratories. The Competitor or other Person may rebut this presumption by establishing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding.

If the Competitor or other Person rebuts the preceding presumption by showing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding, then FINA or the Member Federation shall have the burden to establish that such departure did not cause the Adverse Analytical Finding.

[Comment to DC 3.2.1: The burden is on the Competitor or other Person to establish, by a balance of probability, a departure from the International Standard for Laboratories that could reasonably have caused the Adverse Analytical Finding. If the Competitor or other Person does so, the burden shifts to FINA or its Member Federation to prove to the comfortable satisfaction of the hearing panel that the departure did not cause the Adverse Analytical Finding.]

DC 3.2.2 Departures from any other International Standard or other anti-doping rule or policy which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such results. If the Competitor or other Person establishes that a departure from another International Standard or other anti-doping rule or policy occurred which could reasonably have caused the Adverse Analytical Finding or other anti-doping rule violation, then FINA or its Member Federation shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation.

DC 3.2.3 The facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be irrebuttable evidence against the Competitor or other Person to whom the decision pertained of those facts unless the Competitor or other Person establishes that the decision violated principles of natural justice.

DC 3.2.4 The hearing panel in a hearing on an anti-doping rule violation may draw an inference adverse to the Competitor or other Person who is asserted to have committed an anti-doping rule violation based on the Competitor’s or other Person’s refusal, after a request made in a reasonable time in advance of the hearing, to appear at the hearing (either in person or telephonically as directed by the hearing panel) and to answer questions from the hearing panel or from FINA or its Member Federation asserting the anti-doping rule violation.

[Comment to DC 3.2.4: Drawing an adverse inference under these circumstances has been recognized in numerous CAS decisions.]