DC 13 APPEALS

Doping Control Rules 2009-2013

DC 13.1 Decisions made under these Anti-Doping Rules may be appealed as set forth below in DC 13.2 through 13.4 or as otherwise provided in these Anti-Doping Rules. Such decisions shall remain in effect while under appeal unless the appellate body orders otherwise. Before an appeal is commenced, any post-decision review provided in these Anti-Doping Rules must be exhausted.

DC 13.1.1 Where WADA has a right to appeal under DC 13 and no other party has appealed a final decision within FINA’s or its Member Federation’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in FINA’s or its Member Federation’s process.

[Comment to DC 13.1.1: Where a decision has been rendered before the final stage of an Anti-Doping Organization’s process (for example, a first hearing) and no party elects to appeal that decision to the next level of the Anti-Doping Organization’s process (e.g., the Managing Board), then WADA may bypass the remaining steps in the Anti-Doping Organization’s internal process and appeal directly to CAS.]

DC 13.1.2 Where FINA has a right to appeal under DC 13 and no other party has appealed a final decision within the Member Federation’s process, FINA may appeal such decision directly to CAS without having to exhaust other remedies in the Member Federation’s process.

DC 13.2 A decision that an anti-doping rule violation was committed, a decision imposing Consequences for an anti-doping rule violation, or a decision that no anti-doping rule violation was committed; a decision that an anti-doping rule violation proceeding cannot go forward for procedural reasons (including, for example, prescription); a decision under DC 10.10.2 (prohibition of participation during Ineligibility); a decision that FINA or its Member Federation lacks jurisdiction to rule on an alleged anti-doping rule violation or its Consequences, a decision by any Member Federation not to bring forward an Adverse Analytical Finding or an Atypical Finding as an anti-doping rule violation, or a decision not to go forward with an anti-doping rule violation after an investigation under DC 7.1.9; and a decision to impose a Provisional Suspension as a result of a Provisional Hearing or otherwise in violation of DC 7.1.2 may be appealed exclusively as provided in this DC 13.2. Notwithstanding any other provision herein, the only Person that may appeal from a Provisional Suspension is the Competitor or other Person upon whom the Provisional Suspension is imposed.

DC 13.2.1 In cases arising from participation in an International Competition or in cases involving International-Level Competitors, the decision may be appealed exclusively to the Court of Arbitration for Sport (“CAS”) in accordance with the provisions applicable before such court.

[Comment to DC 13.2.1: CAS decisions are final and binding except for any review required by law applicable to the annulment or enforcement of arbitral awards.]

DC 13.2.2 In cases involving Competitors who do not have a right to appeal under DC 13.2.1, each Member Federation shall have in place an appeal procedure that respects the following principles: a timely hearing, a fair and impartial hearing body; the right to be represented by a counsel at the Person’s expense; and a timely, written, reasoned decision. FINA’s rights to appeal from hearing decisions by Member Federations are set forth in DC 13.2.3 below.

DC 13.2.3 In cases under DC 13.2.1, the following parties shall have the right to appeal to CAS: (a) the Competitor or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) FINA and any other Anti-Doping Organization under whose rules a sanction could have been imposed; (d) the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (e) WADA. In cases under DC 13.2.2, and without prejudice to WADA’s and FINA’s right to appeal directly to the CAS in accordance with DC 13.1.1 and DC 13.1.2, the parties having the right to appeal to the national-level reviewing body shall be as provided in the Member Federation’s rules but, at a minimum, shall include the following parties: (a) the Competitor or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) FINA; and (d) WADA. For cases under Article 13.2.2, WADA and FINA shall also have the right to appeal to CAS with respect to the decision of the national-level reviewing body.

DC 13.3 Where, in a particular case, FINA or its Member Federations fail to render a decision with respect to whether an anti-doping rule violation was committed within a reasonable deadline set by WADA, WADA may elect to appeal directly to CAS as if FINA or its Member Federations had rendered a decision finding no anti-doping rule violation. If the CAS hearing panel determines that an anti-doping rule violation was committed and that WADA acted reasonably in electing to appeal directly to CAS, then WADA’s costs and attorneys fees in prosecuting the appeal shall be reimbursed to WADA by FINA or its Member Federations.

FINA shall have the same right to file an appeal to CAS in cases in relation with proceedings conducted by Members Federations.

[Comment to DC 13.3: Given the different circumstances of each anti-doping rule violation investigation and results management process, it is not feasible to establish a fixed time period for an Anti-Doping Organization to render a decision before WADA may intervene by appealing directly to CAS. Before taking such action, however, WADA will consult with the Anti-Doping Organization and give the Anti-Doping Organization an opportunity to explain why it has not yet rendered a decision.]

DC 13.4 Appeals from Decisions Granting or Denying a Therapeutic Use Exemption. Decisions by WADA reversing the grant or denial of a TUE exemption may be appealed exclusively to CAS by the Competitor, FINA, or National Anti-Doping Organization or other body designated by a Member Federation, which granted or denied the exemption. Decisions to deny therapeutic use exemptions, and which are not reversed by WADA, may be appealed by International-Level Competitors to CAS and by other Competitors to the national level reviewing body described in DC 13.2.2. If the national level reviewing body reverses the decision to deny a therapeutic use exemption, that decision may be appealed to CAS by FINA and WADA.
When FINA or a Member Federation fail to take action on a properly submitted therapeutic use exemption application within a reasonable time, their failure to decide may be considered a denial for purposes of the appeal rights provided in this Article.

DC 13.5 Appeal from Decisions Pursuant to DC 12.

Decisions by FINA pursuant to DC 12 may be appealed exclusively to CAS.

DC 13.6 The deadline to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party and FINA. The above notwithstanding, the following shall apply in connection with appeals filed by a party entitled to appeal but which was not a party to the proceedings having lead to a decision subject to appeal:

- Within a deadline of ten (10) days from receipt of the decision, the party/ies entitled to appeal can request a copy of the full file on which such body relied, including the motivation of the decision and, if the proceedings took place in another language, a translation in one of FINA’s official languages (English or French) of the decision and of the motivation, as well as of any document which is necessary to understand the content of the decision.

- Twenty-one days from the day of receipt of the full file including translations to the extent applicable.

If such request is raised within the above deadline, then a new appeal deadline will run for the concerned party from the day the copy of the file is received.

The above notwithstanding, the filing deadline for an appeal or intervention filed by WADA shall be the later of:
(a) Twenty-one (21) days after the last day on which any other party in the case could have appealed, or
(b) Twenty-one (21) days after WADA’s receipt of the complete file relating to the decision.

Similarly, the filing deadline for an appeal by FINA shall be in any event the later of:

- Twenty-one days after the last day on which any other party (except WADA) could have appealed before a national reviewing body or the CAS; or

-Twenty-one days from the day of receipt of the full file as mentioned above.

[Comment to DC 13: The object of the Code is to have anti-doping matters resolved through fair and transparent internal processes with a final appeal. Anti-doping decisions are made transparent in DC 14. Specified Persons and organizations, including WADA, are then given the opportunity to appeal those decisions. Note that the definition of interested Persons and organizations with a right to appeal under DC 13 does not include Competitors, or their federations, who might benefit from having another Competitor disqualified.]