3. Proof of doping
3. Proof of doping
3. Proof of doping
3. Proof of doping
3.1 Burdens and Standards of Proof
The Commission has the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Commission has established an anti-doping rule violation to the comfortable satisfaction of the Sports Tribunal or NSO Anti-Doping Tribunal, 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 Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Rule 3.2.2 and Rule 3.2.3, the standard of proof shall be by a balance of probability.13
3.2 Methods of Establishing Facts and Presumptions
Facts related to anti-doping rule violations may be established by any reliable means, including admissions.14 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 presumptions 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 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.15
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. 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.16
3.2.3 Departures from any other International Standard or other anti-doping rule or policy set forth in the Code or in these Rules shall not invalidate analytical results or other evidence of an anti-doping rule violation, and shall not constitute a defence to an anti-doping rule violation;17 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 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:
(i) a departure from the International Standard for Testing and Investigations 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 and Investigations related to 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;18
(iv) a departure from the International Standard for Results Management related to Athlete notification 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 of those facts unless the Athlete or other Person establishes that the decision violated principles of natural justice.
3.2.5 The Sports Tribunal or NSO Anti-Doping Tribunal in a hearing on an anti-doping rule violation may draw an inference adverse to the Athlete or other Person who is asserted to have committed an anti-doping rule violation 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 Sports Tribunal or NSO Anti-Doping Tribunal) and to answer questions from the Sports Tribunal or NSO Anti-Doping Tribunal or the Commission asserting the anti-doping rule violation.
Footnotes
13 [Comment to Rule 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.]
14 [Comment to Rule 3.2: For example, an Anti-Doping Organisation may establish an anti-doping rule violation under Rule 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 Rule 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.]
15 [Comment to Rule 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 defence to an anti-doping rule violation based on the presence of that Prohibited Substance in the Sample.
16 [Comment to Rule 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 Anti- Doping Organisation to prove to the comfortable satisfaction of the hearing panel that the departure did not cause the Adverse Analytical Finding.]
17 [Comment to Rule 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 the Protection of Privacy and Personal Information or International Standard on Therapeutic Use Exemptions – may result in compliance proceedings by WADA but are not a defence 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, the Commission s violation of the document referenced in Article 20.7.7 of the Code shall not constitute a defence to an anti-doping rule violation.]
18 [Comment to Rule 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.]