3.1    Burdens and Standards of Proof

3.1    Burdens and Standards of Proof

The Commission shall have the burden of establishing that an anti-doping rule violation, or a violation of Article 10.14.1 has occurred. The standard of proof shall be whether the Commission has established an anti-doping rule violation, or a violation of Article 10.14.1 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.¹⁶ Where the Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation, or violation of Article 10.14.1 to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 3.2.2, 3.2.3 and 10.2.1.3, the standard of proof shall be by a balance of probability.

3.2     Methods of Establishing Facts and Presumptions

3.2     Methods of Establishing Facts and Presumptions

Facts related to anti-doping rule violations, or violations of Article 10.14.1 may be established by any reliable means, including admissions.¹⁷  The following rules of proof shall be applicable in doping cases:

3.2.1     Analytical methods or Decision Limits approved by WADA after consultation within the relevant scientific community or which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to challenge whether the conditions for such presumption have been met or to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. The initial hearing body, appellate body or CAS, on its own initiative, may also inform WADA of any such challenge. Within ten (10) days of WADA’s receipt of such notice and the case file related to such challenge, WADA shall also have the right to intervene as a party, appear as amicus curiae or otherwise provide evidence in such proceeding. In cases before CAS, at WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge.¹⁸ 

3.2.2     WADA-accredited laboratories, and other laboratories approved by WADA, are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for Laboratories. The Athlete 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.¹⁹

If the Athlete 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 the Commission shall have the burden to establish that such departure did not cause the Adverse Analytical Finding. 

3.2.3    Departures from any other International Standard or other anti-doping rule or policy set forth in the Code or the Rules shall not invalidate analytical results or other evidence of an anti-doping rule violation, and shall not constitute a defense to an anti-doping rule violation;²⁰  provided, however, if the Athlete or other Person establishes that a departure from one of the specific International Standard provisions listed below could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or whereabouts failure, then the Commission shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or whereabouts failure:²¹ 

(i)     a departure from the International Standard for Testing related to Sample collection or Sample handling which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding, in which case the Commission shall have the burden to establish that such departure did not cause the Adverse Analytical Finding;

(ii)     a departure from the International Standard for Results Management or International Standard for Testing related to an Adverse Passport Finding which could reasonably have caused an anti-doping rule violation, in which case the Commission shall have the burden to establish that such departure did not cause the anti-doping rule violation;

(iii)    a departure from the International Standard for Results Management related to the requirement to provide notice to the Athlete of the B Sample opening which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding, in which case the Commission shall have the burden to establish that such departure did not cause the Adverse Analytical Finding;²² 

(iv)     a departure from the International Standard for Results Management related to Athlete notification or attempts to locate the Athlete which could reasonably have caused an anti-doping rule violation based on a whereabouts failure, in which case the Commission shall have the burden to establish that such departure did not cause the whereabouts failure.

3.2.4     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 Athlete or other Person to whom the decision pertained (and who has been charged with an anti-doping rule violation or violation of Article 10.14.1) of those facts unless the Athlete or other Person establishes that the decision violated principles of natural justice.²³ 

3.2.5     The hearing panel in a hearing on an anti-doping rule violation, or a violation of Article 10.14.1 may draw an inference adverse to the Athlete or other Person who is asserted to have committed an anti-doping rule violation, or a violation of Article 10.14.1 based on the Athlete’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 the Commission.

Footnotes

¹⁶ [Comment to Article 3.1: This standard of proof required to be met by the Commission is comparable to the standard which is applied in most countries to cases involving professional misconduct.]

17   [Comment to Article 3.2: For example, the Commission may establish an anti-doping rule violation under Article 2.2 based on the Athlete’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 Article 2.2, or conclusions drawn from the profile of a series of the Athlete’s blood or urine Samples, such as data from the Athlete Biological Passport. The results of lie-detector tests shall not be considered reliable analytical or scientific evidence.]

18    [Comment to Article 3.2.1: For certain Prohibited Substances, WADA may instruct WADA-accredited laboratories not to report Samples as an Adverse Analytical Finding if the estimated concentration of the Prohibited Substance or its Metabolites or Markers is below a Minimum Reporting Level. WADA’s decision in determining that Minimum Reporting Level or in determining which Prohibited Substances should be subject to Minimum Reporting Levels shall not be subject to challenge. Further, the laboratory’s estimated concentration of such Prohibited Substance in a Sample may only be an estimate. In no event shall the possibility that the exact concentration of the Prohibited Substance in the Sample may be below the Minimum Reporting Level constitute a defense to an anti-doping rule violation based on the presence of that Prohibited Substance in the Sample.]

19   [Comment to Article 3.2.2: The burden is on the Athlete 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. Thus, once the Athlete or other Person establishes the departure by a balance of probability, the Athlete or other Person’s burden on causation is the somewhat lower standard of proof– “could reasonably have caused.” If the Athlete or other Person satisfies these standards, the burden shifts to the Commission  to prove to the comfortable satisfaction of the hearing panel that the departure did not cause the Adverse Analytical Finding.]

²⁰       [Comment to Article 3.2.3: Departures from an International Standard or other rule unrelated to Sample collection or handling, Adverse Passport Finding, or Athlete notification relating to whereabouts failure or B Sample opening – e.g., the International Standard for Education, International Standard for Data Protection , International Standard for Intelligence and Investigations or International Standard for Therapeutic Use Exemptions – may result in compliance proceedings by WADA but are not a defense in an anti-doping rule violation proceeding and are not relevant on the issue of whether the Athlete committed an anti-doping rule violation. Similarly, a Signatory’s violation of its anti-doping Education responsibilities under Article 20 of the Code shall not constitute a defense to an anti-doping rule violation.]

²¹     [Comment to Article 3.2.3: For the avoidance of doubt, an Athlete’s assertion of an alleged “fundamental” breach of any International Standard or other anti-doping rule or policy set forth in the Code or in an Anti-Doping Organization’s rules cannot invalidate an Adverse Analytical Finding or anti-doping rule violation unless the Athlete can also establish that the breach could reasonably have caused the Adverse Analytical Finding or anti-doping rule violation.]

²²       [Comment to Article 3.2.3 (iii): the Commission would meet its burden to establish that such departure did not cause the Adverse Analytical Finding by showing that, for example, the B Sample opening and analysis were observed by an independent witness and no irregularities were observed.]

23    [Comment to Article 3.2.4: For the avoidance of doubt, this provision shall not apply to decisions on provisional suspensions.]