Whereabouts Failures: The Burden of Proof Matters

A common misconception in anti-doping proceedings is that once an athlete has allegedly been "missed," the burden immediately shifts to the athlete to explain what happened.

It does not work that simply.

Under Annex B of the International Standard for Results Management (ISRM), a Whereabouts Failure requires the relevant elements to be established.

That means the first question should always be:

Has the Anti-Doping Organisation actually established each required element of the alleged failure?

Only once that threshold has been met does the analysis properly move to the athlete's explanation, evidence and any available defence or rebuttal.

This distinction is not merely technical.

In practice, a case may turn on questions such as:

• Was the relevant whereabouts information actually inaccurate or incomplete?

• Was the location specified by the athlete correctly identified?

• Did the DCO attend the location required by the applicable rules?

• Were the required efforts made to locate the athlete?

• Was the alleged failure correctly characterised under the applicable anti-doping framework?

• Does the evidence actually establish each element required by Annex B?

The athlete should not be placed in the position of having to prove innocence before the Anti-Doping Organisation has first established the alleged violation.

This is particularly important in Whereabouts proceedings, where the distinction between the facts of an unsuccessful testing attempt and the legal elements of a Whereabouts Failure can be significant.

Anti-doping rules impose substantial obligations on athletes. But they also impose procedural and evidentiary requirements on Anti-Doping Organisations.

A missed opportunity to test an athlete is a fact.

A Whereabouts Failure is a legal conclusion.

The two should not be treated as synonymous.

This is one of the reasons why Whereabouts cases require careful legal analysis of the applicable rules, the DCO documentation, the athlete's filing and the evidence relied upon by the Anti-Doping Organisation.

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