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Rules and Regulation

DC 4.4 Therapeutic Use Exemptions (“TUEs”)

DC 4.4.1 The presence of a Prohibited Substance or its Metabolites or Markers, and/or the Use or Attempted Use, Possession or Administration or Attempted Administration of a Prohibited Substance or a Prohibited Method shall not be considered an anti-doping rule violation if it is consistent with the provisions of a TUE granted in accordance with the International Standard for Therapeutic Use Exemptions.

DC 4.4.2 An Athlete who is not an International-Level Athlete should apply to his or her National Anti-Doping Organisation for a TUE. If the National Anti-Doping Organisation denies the application, the Athlete may appeal exclusively to the national-level appeal body described in DC 13.2.2 and 13.2.3.

DC 4.4.3 An International-Level Athlete who wishes to use a Prohibited Substance or a Prohibited Method for therapeutic reasons must apply to FINA:

DC 4.4.3.1 Where the Athlete already has a TUE granted by his or her National Anti-Doping Organization for the substance or method in question, then that TUE is not automatically valid for international-level Competition. However, the Athlete may apply to FINA to recognize that TUE, in accordance with Article 7 of the International Standard for Therapeutic Use Exemptions. If that TUE meets the criteria set out in the International Standard for Therapeutic Use Exemptions, then FINA shall recognize it for purposes of international-level Competition as well. If FINA considers that the TUE does not meet those criteria and so refuses to recognize it, FINA shall notify the Athlete and his or her National Anti-Doping Organization or Member Federation as relevant, promptly, with reasons. The Athlete and/or the National Anti-Doping Organization shall have 21 days from such notification to refer the matter to WADA for review. If the matter is referred to WADA for review, the TUE granted by the National Anti-Doping Organization remains valid for national-level Competition and Out-of-Competition Testing (but is not valid for international-level Competition) pending WADA’s decision. If the matter is not referred to WADA for review, the TUE becomes invalid for any purpose when the 21-day review deadline expires.

[Comment to DC 4.4.3.1: If FINA refuses to recognize a TUE granted by a National Anti-Doping Organization only because medical records or other information are missing that are needed to demonstrate satisfaction with the criteria in the International Standard for Therapeutic Use Exemptions, the matter should not be referred to WADA. Instead, the file should be completed and re-submitted to FINA.]

DC 4.4.3.2 If the Athlete does not already have a TUE granted by his or her National Anti-Doping Organization for the substance or method in question, the Athlete must apply directly to FINA for a TUE in accordance with the process set out in the International Standard for Therapeutic Use Exemptions. If FINA denies the Athlete’s application, it must notify the Athlete promptly, with reasons. If FINA grants the Athlete’s application, it shall notify not only the Athlete but also his or her National Anti-Doping Organization or Member Federation, as relevant. If the National Anti-Doping Organization considers that the TUE does not meet the criteria set out in the International Standard for Therapeutic Use Exemptions, it has 21 days from such notification to refer the matter to WADA for review. If the National Anti-Doping Organization refers the matter to WADA for review, the TUE granted by FINA remains valid for international-level Competition and Out-of-Competition Testing (but is not valid for national-level Competition) pending WADA’s decision. If the National Anti-Doping Organization does not refer the matter to WADA for review, the TUE granted by FINA becomes valid for national-level Competition as well when the 21-day review deadline expires.

DC 4.4.4 Some Major Event Organisations may require Athletes to apply to them for a TUE if they wish to Use a Prohibited Substance or Prohibited Method in connection with the Major Event Organisation’s Competition.

DC 4.4.5 If FINA chooses to test an Athlete who is not an International-Level Athlete, FINA shall recognize a TUE granted to that Athlete by his or her National Anti-Doping Organization. If FINA chooses to test an Athlete who is not an International-Level or a National-Level Athlete, FINA shall permit that Athlete to apply for a retroactive TUE for any Prohibited Substance or Prohibited Method he or she is using for therapeutic reasons.

DC 4.4.6 An application to FINA for grant or recognition of a TUE must be made as soon as the need arises and in any event (save in emergency or exceptional situations or where Article 4.3 of the International Standard for Therapeutic Use Exemptions applies) at least 30 days before the Athlete’s next Competition. FINA shall appoint a FINA TUE Committee to consider applications for the grant or recognition of TUEs. The FINA TUE Committee shall promptly evaluate and decide upon the application in accordance with the relevant provisions of the International Standard for Therapeutic Use Exemptions, these Anti-Doping Rules and any FINA protocols. Its decision shall be the final decision of FINA, and shall be reported to the Athlete, WADA and other relevant Anti-Doping Organizations, including the Athlete's National Anti-Doping Organization or Athlete’s Member Federation as relevant, through ADAMS, in accordance with the International Standard for Therapeutic Use Exemptions.

[Comment to DC 4.4.6: The submission of false or misleadingly incomplete information in support of a TUE application (including but not limited to the failure to advise of the unsuccessful outcome of a prior application to another Anti-Doping Organization for such a TUE) may result in a charge of Tampering or Attempted Tampering under DC 2.5.
An Athlete should not assume that his or her application for grant or recognition of a TUE (or for renewal of a TUE) will be granted. Any Use or Possession or Administration of a Prohibited Substance or Prohibited Method before an application has been granted is entirely at the Athlete’s own risk.]

DC 4.4.7 Expiration, Cancellation, Withdrawal or Reversal of a TUE

DC 4.4.7.1 A TUE granted pursuant to these Anti-Doping Rules: (a) shall expire automatically at the end of any term for which it was granted, without the need for any further notice or other formality; (b) may be cancelled if the Athlete does not promptly comply with any requirements or conditions imposed in connection with the TUE; (c) may be withdrawn by FINA or National Anti-Doping Organisation’s TUE Committee if it is subsequently determined that the criteria for grant of a TUE are not in fact met; or (d) may be reversed on review by WADA or on appeal.

DC 4.4.7.2 In such event, the Athlete shall not be subject to any Consequences based on his or her Use or Possession or Administration of the Prohibited Substance or Prohibited Method in question in accordance with the TUE prior to the effective date of expiry, cancellation, withdrawal or reversal of the TUE. The review pursuant to DC 7.1.2 and DC 7.2.2 of any subsequent Adverse Analytical Finding or Atypical Finding shall include consideration of whether such finding is consistent with Use of the Prohibited Substance or Prohibited Method prior to that date, in which event no anti-doping rule violation shall be asserted.

DC 4.4.8 Reviews and Appeals of TUE Decisions

DC 4.4.8.1 WADA shall review any decision by FINA not to recognize a TUE granted by the National Anti-Doping Organization that is referred to WADA by the Athlete or the Athlete’s National Anti-Doping Organization. In addition, WADA shall review any decision by FINA to grant a TUE that is referred to WADA by the Athlete’s National Anti-Doping Organization. WADA may review any other TUE decisions at any time, whether upon request by those affected or on its own initiative. If the TUE decision being reviewed meets the criteria set out in the International Standard for Therapeutic Use Exemptions, WADA will not interfere with it. If the TUE decision does not meet those criteria, WADA will reverse it.

DC 4.4.8.2 Any TUE decision by FINA that is not reviewed by WADA, or that is reviewed by WADA but is not reversed upon review, may be appealed by the Athlete and/or the Athlete’s National Anti-Doping Organization exclusively to CAS, in accordance with DC 13.

[Comment to DC 4.4.8.2: In such cases, the decision being appealed is the FINA’s TUE decision, not WADA’s decision not to review the TUE decision or (having reviewed it) not to reverse the TUE decision. However, the deadline to appeal the TUE decision does not begin to run until the date that WADA communicates its decision. In any event, whether the decision has been reviewed by WADA or not, WADA shall be given notice of the appeal so that it may participate if it sees fit.]

DC 4.4.8.3 A decision by WADA to reverse a TUE decision may be appealed by the Athlete, the National Anti-Doping Organization and/or FINA exclusively to CAS, in accordance with DC 13.

DC 4.4.8.4 A failure to take action within a reasonable time on a properly submitted application for grant/recognition of a TUE or for review of a TUE decision shall be considered a denial of the application.