CAS 2018_A_6025 Lenka Ferenčuková vs Czech Bodybuilding & Fitness Federation & CDAC

CAS 2018_A_6025 Lenka Ferenčuková vs Czech Bodybuilding & Fitness Federation & CDAC

CAS 2018/A/6025 Lenka Ferenčuková v. Association of Bodybuilding and Fitness of the Czech Republic & Anti-Doping Committee of the Czech Republic (ADCCR)

  • Bodybuilding and fitness
  • Doping (failure to submit to doping control)
  • CAS jurisdiction
  • Sanction for participation in a competition during a period of provisional suspension

1. If the appeal to an independent and impartial body in accordance with rules established by the national anti-doping organisation in the sense of Article 13.2.2 of the World Anti-Doping Code (WADC) does not respect the principles of a timely hearing, a fair and impartial hearing panel and a timely, written, reasoned decision, but rather is conducted in clear violation of the principles of fair legal proceedings, it constitutes a denial of justice making an appeal to the CAS the only appellate remedy and giving CAS jurisdiction to consider the matter.

2. Articles 10.1, 10.2 and 10.3 provide sanctions for violation of WADC, but participation in competition during a period of provisional suspension is not one of the enumerated violations permitting a sanction to be imposed on the athlete. A review of the various provisions of the WADC indicate that there is no provision which allows for a suspension following an athlete’s breach of his/her provisional suspension. Such a breach only affects the starting date once a suspension is implicated and, of course, disqualifies any results received during the period of suspension. However, it does not appear possible to impose a separate sanction for breaching a provisional suspension.



Ms. Lenka Ferenčuková is an amateur body builder and fitness model, as well as a police woman, from Prague, in the Czech Republic.

On 1 November 2017 a Doping Control Officer (DCO) from the Czech Anti-Doping Committee (CADC) attempted to collect an out-of-competition sample from the Athlete at her private residence. Yet the DCO reported that the woman at the door refused to take any test and slammed the door on the DCO.

By contrast the Athlete testified that her roommate answered the door and explained tot the DCO that the Athlete was not at home. Also the Athlete alleged that the DCO proceeded to utter threats against the roommate and began kicking the door.

  • On 2 November 2017 the CADC reported an anti-doping rule violation against the Athlete for her missed test.
  • After notification a provisional suspension was ordered on 21 November 2017.
  • On 22 November 2017 the Athlete filed a criminal complaint with the Czech police departiment following the incident with the DCO at her home.
  • On 25 November 2017 the Athlete participated in a competition during the provisional suspension.
  • In January 2018 the CADC filed a criminal complaint with the General Inspectorate of Security Corps whereby it asserted potential use of prohibited substances used by the Athlete, a member of the foreign police of the Czech Republic in Ruzyne, following her alleged refusal to cooperate with the out-of-competition testing.
  • In April 2018 the SKFCR Disciplinary Commission adjourned the hearing due to the criminal investigations conducted by the Police Directorate of Praque.
  • In October 2018 the Disciplinary Commission proceeded the hearing.
  • On 31 October 2018 the SKFCR Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete on the basis that she wilfully had violated her provisional suspension by competing in a competition on 25 November 2017.

Hereafter in November 2018 the Athlete appealed the Decision of 31 October 2018 the Court of Arbitration for Sport (CAS).

The Athlete asserted that the SKFCR and CADC have a personal bias and aversion against her. Futher she argued that her right was violated for a timely hearing, a fair and impartial decision-making authority, and a timely written and substantiated ruling. Also the Athlete claimed damages as the unlawful decision of the SKFCR effected her financial situation.

The SKFCR and CADC contended that the Athlete had evaded sample collection and breached the provisional suspension. They rejected the Athlete's assertions and questioned her integrity due to several inconsistencies in her witness statements. Further they argued that her appeal is inadmissible because she had failed to exhaust all internal appeal remedies.

The Sole Arbitrator finds that the SKFCR violated stipulations of the WADC because of the established procedural inadequacies of the process and a lack of response regarding the filed appeal. The Sole Arbitrator concludes that these actions of the SKFCR constitue a denial of justice making the appeal to the CAS the only appellate remedy for the Athlete.

The Sole Arbitrator remarks that substantial evidence and pleadings were submitted by the parties in regard to the alleged anti-doping rule violation. However this violation is not an issue subject to this appeal since that SKFCR Decision in question has not found that a violation had been committed by the Athlete for failing or refusing to take the test. The Sole Arbitrator does not grant any damages to the Athlete.

The Sole Arbitrator holds that there is no provision of the WADC which allows for a suspension of the Athlete for breaching her provisional suspension. Since it was determined in the appealed Decision that the Athlete has not committed an anti-doping rule violation for not submitting to the doping test, no sanction can or should be imposed on the Athlete. Consequently the Sole Arbitrator deems that the appealed Decision was wrong in imposing a sanction on the Athlete and the imposition of such sanction should be set aside.

Therefore the Court of Arbitration for Sport decides on 16 December 2019 that:

1. The appeal filed by Ms. Lenka Ferenčuková on 21 November 2018 against the Association of Bodybuilding and Fitness of the Czech Republic and the Anti-Doping Committee of the Czech Republic is upheld.

2. The decision issued by the Disciplinary Commission of the Association of Bodybuilding and Fitness of the Czech Republic dated 31 October 2018 to impose on Ms. Lenka Ferenčuková a two-year period of ineligibility is set aside.

3. (…).

4. (…).

5. All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
16 December 2019
Arbitrator
Lalo, Ken E.
Original Source
Court of Arbitration for Sport (CAS)
Country
Czech Republic
Language
English
ADRV
Breach of ineligibility
Evasion
Refusal or failure to submit to sample collection
Legal Terms
Competence / Jurisdiction
Criminal case / judicial inquiry
Fair trial / procedural fairness
Procedural error
Provisional suspension
Sole Arbitrator
Substantial delay / lapsed time limit
WADA Code, Guidelines, Protocols, Rules & Regulations
Sport/IFs
Bodybuilding & Fitness (IFBB) - International Federation of Bodybuilding & Fitness
Other organisations
Antidopingový výbor České republiky (ADV ČR) - Czech Anti-Doping Committee (CADC)
Svaz kulturistiky a fitness České Republiky (SKFCR) - Czech Bodybuilding & Fitness Federation
Various
Amateur / club / recreational sport
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Date generated
18 May 2021
Date of last modification
7 June 2021
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