Lenka Ferencukova v. Anti-Doping Committee of the Czech Republic (ADCCR), Association of Bodybuilding and Fitness of the Czech Republic

II. FACTUAL BACKGROUND — A. Background Facts

5. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain his reasoning.

6. On 1 November 2017, at around 17h40, Ms. Daniela Kacafirkova, a doping-control officer (the “DCO”) from the ADCCR, attempted to collect an out-of-competition sample from the Athlete at her private residence. What happened next is in dispute between the Parties.

B. The DCO’s Account of Events

7. According to the DCO, upon arrival she ascertained the physical location of the Athlete’s apartment by examining the mailboxes outside the building. She then gained entry into the common area of the apartment building when a man leaving the premises let her in through the front door. When she arrived at the Athlete’s front door, she rang the buzzer but no sound emanated. So she proceeded to knock on the door. A woman appeared who the DCO considered to be the Athlete based on her review of various pictures of the Athlete from the Athlete’s personal website (www.lenkaferencukova.com) and Facebook.

8. The DCO notes that she introduced herself to the woman at the door and announced that she was there to administer a doping control test. The woman refused to take any test and slammed the door on the DCO. The DCO verbally communicated to the woman that her refusal to cooperate with the sample collection could result in various penalties. The woman never reappeared and the DCO left.

9. The DCO then notified the Head of the Doping Control and Monitoring Unit, Dr. Jan Chlumsky, of the situation and completed a formal report.

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10. On 9 January 2017, Mr. Chlumsky filed a criminal complaint with the General Inspectorate of Security Corps whereby he 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.

11. On 15 January 2017, the General Inspector issued a determination that there were no grounds to proceed on Mr. Chlumsky’s criminal complaint as it did not give cause to grounds that a crime was committed by the Athlete.

C. The Athlete’s Account of Events

12. According to the Athlete, upon the DCO arrival, the Athlete’s roommate, Ms. Klara Liparova (not the Athlete), answered the door and explained to the DCO that the Athlete was not home as she was having her car serviced at a nearby service station.

13. The DCO, who Ms. Liparova describes as “shady” and without any visible identification and “reminiscent of that of criminal delinquents who will as a rule will try to gain access to apartments of strangers by resorting to subterfuge so that they can engage in various crimes”, introduced herself as being from the “anti-doping committee” and sought entry into the premise. Such entry was refused by Ms. Liparova.

14. The Athlete asserts that the DCO proceeded to utter threats against Ms. Liparova and began kicking the door.

15. Ms. Liparova immediately contacted the Athlete by telephone and informed her of the DCO’s arrival and pending situation. Ms. Liparova asked the Athlete whether she should call the police but the Athlete suggested otherwise, noting that she would be home shortly and by then the matter would hopefully be cleared up. Sometime thereafter, the Athlete returned home, but the DCO was gone by the time she arrived.

16. On 22 November 2017, the Athlete filed a criminal complaint with the Czech police department following the incident with the DCO at her home.

D. Proceedings before the Disciplinary Commission of the Association of Bodybuilding

and Fitness of the Czech Republic

17. On 2 November 2017, Mr. Chlumsky filed a notice of violation against the Athlete following her missed test in accordance with Article 2.3 of the Directive for Sports Doping Detection and Sanctions in the Czech Republic (the “Directive”) with the Disciplinary Commission of the Association of Bodybuilding and Fitness of the Czech Republic (the “Disciplinary Commission”). The notice included a recommendation for a provisional suspension in accordance with Article 7.7 of the Directive.

18. On 21 November 2017, the Disciplinary Commission initiated formal procedures against the Athlete and charged her with an alleged violation of Article 2.3 of the Directive. The

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Disciplinary Commission also provisionally suspended the Athlete in accordance with Article III(a) of the Disciplinary Code of the Association of Bodybuilding and Fitness of the Czech Republic. In its instructions at the end of that decision the Disciplinary Commission advised that: “[n]o appeal may be brought against this suspension decision. An athlete has the right to accelerated proceedings promptly after the suspension has been imposed. Athlete has all rights listed in Article 8.1 of the Directive”.

19. The Athlete was thereafter invited to file a written submission in defence of the charges against her within 15 days.

20. In an undated letter (presumably within the 15-day deadline), the Athlete filed her defence statement with the Disciplinary Commission.

21. On 13 February 2018, the Disciplinary Commission invited the Athlete to participate in a hearing on 20 April 2019. In the invitation letter, the Athlete was provided with all evidence against her and was invited to file any further evidence in support of her alleged anti-doping rule violation (“ADRV”).

22. On 12 April 2018, the Disciplinary Commission adjourned the hearing indefinitely after learning that the Athlete filed criminal complaint against an unknown perpetrator (i.e. the alleged DCO) and on the grounds that the allegations were being investigated by the Regional Police Directorate of Prague. In the Disciplinary Commission’s opinion, the criminal investigation should take precedent over the Disciplinary Commission’s hearing, which would be rescheduled following the conclusion of the Police investigation. Moreover, the Athlete was advised that a new Disciplinary Commission was recently elected into function and such new members needed ample time to review the Athlete’s file.

23. On 19 April 2018, the Athlete objected to the adjournment of the Disciplinary Commission’s hearing arguing that the procedure before the Disciplinary Commission and the criminal authorities are separate and, therefore, both cases should be run in parallel.

24. The Disciplinary Commission did not respond or comment regarding the Athlete’s request to proceed with the Disciplinary Commission’s hearing.

25. On 8 October 2018, the Athlete followed-up on her 19 April 2019 letter to the Disciplinary Commission, again requesting that the Disciplinary Commission proceed with her hearing.

26. On 31 October 2018, the Disciplinary Commission issued a decision sanctioning the Athlete with a two-year period of ineligibility on the basis that she wilfully violated her provisional suspension by competing in the Olympia Amateur San Marino competition on 25 November 2017 (the “Olympia Event”). More specifically, the Disciplinary Commission decision stated in its pertinent part as follows:

The aforementioned athlete is said to have violated the antidoping rules within the meaning of Art. 2.3 of the Directive for Sports Doping Detection and Sanctions in the Czech Republic (the

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“Directive”) when, according to the Notice of a violation of the anti-doping rules by ADC of the Czech Republic, she refused on 1 November 2017 to submit to a doping test.

Even though the athlete must have been aware of the situation, given that she contested the Notice by ADC of the Czech Republic of 2 November 2017 and has been served with the Decision on her suspension of 21 November 2017 – based upon which she contacted ABFCR and learned that the Disciplinary Committee was under obligation to initiate disciplinary proceedings and issue a decision on suspension under the Directive for Sports Doping Detection and Sanctions (the “Directive”), whereas she was expressly instructed of the fact that, under the circumstances, she was not allowed to enrol as athlete in any competition of the Association of Bodybuilding and Fitness of the Czech Republic or of IFBB until the case is brought to a close – the athlete nonetheless actively participated on 25 November 2017 in the Olympia Amateur San Marino competition.

The factual circumstances which led to the Decision on the suspension of the athlete cannot be determined without substantial doubt, but the athlete nonetheless acted wilfully against her suspension when she started at Olympia Amateur San Marino, which is why the Disciplinary committee decided to

impose a penalty in the form of a two-year ban and on setting the matter aside.

(the “Challenged Decision”).

27. The Disciplinary Commission explained the reasoning for the Challenged Decision as follows:

While certain assertions of fact made by the athlete … have been shown to be wrong, it cannot be said that the claim of the athlete according to which she had not been at the place where the doping test should be administered, and had not been contacted by the doping inspector, has been clearly refuted. The Disciplinary committee believes that in the case at hand, neither the testimony of the doping inspector nor the testimony of the athlete can serve as unambiguous proof of which side is more likely to have described the course of events truthfully.

-------------------------------

With a view to the above, the Disciplinary committee has substantiated doubt as to whether the antidoping rules within the meaning of the Directive were violated by the athlete insofar as the refusal to submit to a doping test is concerned; however, the committee considers it proven beyond doubt that the athlete violated the anti-doping rules within the meaning of the Directive with respect to her violation of the suspension when she started at Olympia Amateur San Marino.

Even though the circumstances of the doping test could not be established beyond doubt, the athlete consciously and deliberately violated the decision on her suspension. With a view to the above, the Disciplinary committee decided to set the matter aside and to merely penalize the athlete with a twoyear ban on participation, even though she faced a penalty of a ban on participation of up to four years for a proven infraction of the athlete.

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28. The Disciplinary Commission concluded the Challenged Decision with the following “Instruction on Remedies”:

An appeal may be filed against this decision on the type and severity of the penalty and on setting the matter aside, with the ABFCR Executive Committee, within 15 days from the date on which this decision is served to the athlete. The appeal may be brought by the athlete, or by any person affected by this decision.

29. According to a filing by the Athlete, the Challenged Decision was delivered to the Athlete on 2 November 2018 and the Athlete filed an appeal against the Challenged decision with the Executive Committee of the First Respondent on 14 November 2018, which appeal was not addressed by the First Respondent.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

30. On 21 November 2018, the Appellant filed her statement of appeal with the Court of Arbitration for Sport (the “CAS”) against the Respondents with respect to the Challenged Decision in accordance with Article R47 et seq. of the Code of Sports-related Arbitration (the “Code”). In her statement of appeal, the Appellant nominated Ms. Carmen Nunez-Lagos as arbitrator.

31. On 30 November 2018, the Appellant filed her appeal brief in accordance with Article R51 of the Code.

32. On 28 December 2018, the Second Respondent filed an unsolicited “Opinion” denying the claims set out by the Appellant in her statement of appeal and informing the CAS Court Office that is did not intend to participate in this procedure.

33. On 7 January 2019, the Second Respondent filed a document with the CAS referring to its Opinion and reconfirming its position in these proceedings. Additionally, the Second Respondent restated that it “is not going to continue in this arbitrary procedure as a respondent”. Regardless of whether this document or the “Opinion” of 28 December 2018 constitute and answer by the Second Respondent, they have been fully considered by the Sole Arbitrator.

34. On 7 January 2019, the CAS Court Office informed the Parties that “the Second Respondent cannot unilaterally dismiss itself from this legal procedure”. The Appellant did not voluntarily dismiss the Second Respondent from its participation in these proceedings.

35. Also on 7 January 2019, the CAS Court Office informed the parties that Ms. Nunez-Lagos did not accept her nomination and, as a result, the Appellant was invited to re-nominate an arbitrator.

36. On 10 January 2019, the Appellant nominated Ms. Hilkka Salmenkyla as arbitrator.

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37. On 24 January 2019, the First Respondent filed its Answer, including an objection to jurisdiction, in accordance with Article R55 of the Code.

38. On 8 February 2019, the Appellant filed its response to the First Respondent’s objection to jurisdiction, in accordance with Article R55 of the Code and the invitation by the CAS Court Office in its letter of 29 January 2019.

39. On 11 February 2019, the Appellant modified her request for a three-member panel, instead requesting that this procedure be referred to a Sole Arbitrator.

40. On 11 February 2019, the Second Respondent made an additional filing re-iterating its position contained in the filing of 7 January 2019 stating that it “is not going to continue as second respondent in this phase, just remains at Court of Arbitration for Sport disposal (in accordance with the rules and as written in the previous statements)”.

41. On 8 March 2019, given the disparity between the Parties’ positions on the number of arbitrators, the CAS Court Office on behalf of the President of the Appeals Arbitration Division, appointed Mr. Ken Lalo as Sole Arbitrator in accordance with Article R54 of the Code.

42. On 15 March 2019, following an inquiry from the Sole Arbitrator, the Appellant confirmed that no hearing was requested from her perspective. No response was provided in this respect from the Respondents.

43. On 2 May 2019, the CAS Court Office, on behalf of the Sole Arbitrator, confirmed that the Sole Arbitrator was sufficiently well informed to decide this dispute without the need for a hearing.

44. On 9, 10 and 17 May 2019, the Appellant, First Respondent, and Second Respondent, respectively, signed and returned the Order of Procedure.

45. On 14 May 2019, the CAS Court Office received a filing dated 27 April 2019 from the First Respondent, which included Witness Statements from Martin Jebas, the former President of the First Respondent, and Zdenka Razymova, a national trainer. This filing was made without request or consent from the Sole Arbitrator.

46. On 28 May 2019, the CAS Court Office, on behalf of the Sole Arbitrator, accepted such statements in accordance with Article R44.3 of the Code and invited the Appellant and Second Respondent to file comments/statements in response.

47. On 6 June 2019, the Appellant filed a response to the First Respondent’s filing dated 27 April 2019. The Appellant objected to this late filing by the First Respondent indicating that it could have been filed earlier and along with the Answer, that the First Respondent is merely trying to delay the process and that the late submissions contradict Article R56 of the Code. The filing included a Witness Statement from Karel Petrus, an employee of the garage at which the Appellant allegedly serviced her car at the time of the DCO’s visit. The filing also included

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evidence supporting the Appellant’s claim regarding Mr. Jebas’ and Mr. Chlumsky’s bias against the Appellant.

IV. SUBMISSIONS OF THE PARTIES

48. The Appellant’s submissions, in essence, may be summarized as follows:

• This appeal is admissible as the Appellant filed an appeal against the Challenged Decision to the Executive Committee but this appeal has not been responded to by the First Respondent or the Executive Committee. Such appeal was duly sent to the address of Ronnie.cz, the company owned by Mr. Martin Jebas, the former President of the First Respondent. Moreover, there is no obligation to exhaust post-hearing review when such review fails to follow the principles set out in Article 13.2.2 of the World Anti-Doping Code (“WADC”) (i.e. right to a timely hearing and timely written and substantiated decision).

• Moreover, this procedure is certainly related to anti-doping since the interim suspension of the sport activity is only possible following an adverse analytical finding or based on other ADRVs.

• The Second Respondent violated the principles of the Directive in a serious manner, including the principles of a timely hearing, a fair and impartial decision-making authority, and a timely written and substantiated ruling.

• The Respondents have a personal bias and aversion against the Appellant, which extends to Mr. Jebas. This is demonstrated by rude emails being sent from Mr. Jebas to a supporter of the Appellant. Moreover, further animosity is demonstrated by Mr. Jan Chlumsky’s report filed with the Appellant’s employer reporting suspicions that the Appellant uses prohibited substances.

• The Appellant’s right to a timely hearing was violated from the beginning of her firstinstance procedure. More specifically, the Disciplinary Commission wrongly suspended the Appellant’s procedure following the police department’s investigation into the criminal complaint and proceedings and the staff change at the Disciplinary Commission. This unnecessary suspension of the proceedings violated the Appellant’s right to a timely hearing. The Appellant has an express right to an expedited hearing as set out in Article 8.1 of the WADC. Despite this, the Disciplinary Commission took no action for six months without providing any explanation.

• The Disciplinary Commission failed to provide a timely written and substantiated ruling and failed to identify evidence on the basis of which it rendered its decision. Indeed, the Disciplinary Commission imposed a ban on the Appellant based on allegations that were unknown to the Appellant and on account of actions that were entirely different from those that transpired on the date of the sample collection. She was never informed of the

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charges brought against her and was unable to state her position or submit contrary evidence.

• The additional filings by the First Respondent on 14 May 2019 merely contains a statement by Zdenka Razymova who, as the national coach, depends on the First Respondent for this position and so she must have a bias.

• Ing. Martin Jebas, the President of the First Respondent during 2014 to 2017, who is still a member of its review committee and an influential person in Czech bodybuilding and fitness, holds a personal bias against the Appellant.

• The Witness Statement of Karel Petrus, who is employed by the tire service garage in West Prague at which the Athlete services her car at the time of the DCO’s visit, evidences that on 1 November 2017 from 5 to 6 pm the Athlete visited the tire service facility in order to replace the tires on her Fiat Panda vehicle. This is confirmed by the garage’s official “receiving orders book”.

• The Appellant also states that consequently to the unlawful decisions of the First Respondent, she has significantly less sponsors and lower income in general but also higher costs of doing sport, etc. Therefore she will claim also damages against the First Respondent. The Appellant also bears the costs of legal advice which is (compared to her income) quite high. The financial situation of the Appellant is obvious from the fact that the legal aid was granted to her by the Court.

49. In her appeal brief, the Appellant requested the following relief:

I. Lenka Ferenčuková, born on 27 February 1984, address: Spanielova 1295/88, 163 00 Praha 6, has not violated article 2.3 of the Directive for Sports Doping Detection and Sanctions in the Czech Republic.

II. The ruling of the Disciplinary Committee of the Association of Bodybuilding and Fitness of the Czech Republic of 31 October 2018, reference number 02/2017, is annulled.

III. The ruling of the Disciplinary Committee of the Association of Bodybuilding and Fitness of the Czech Republic of 21 November 2017, reference number 2017-12, is annulled.

50. The First Respondent’s submissions, in essence, may be summarized as follows:

• The Appellant’s appeal is inadmissible because she has failed to exhaust all internal remedies. In this respect, an appeal against the Challenged Decision with the Executive Committee of the Association of Bodybuilding and Fitness within 15 days receipt of the underlying decision. The Appellant did not do so and according to Article 13.1 of the Directive, an appeal to the CAS is only viable after the exhaustion of all possible internal remedies have been exhausted.

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• The Appellant cannot assert that there was a breach of her right to a timely hearing because she breached her provisional suspension 4 days after it was implemented (the provisional suspension was issued on 21 November 2017 and the Appellant participated at the Olympia Event on 25 November 2017).

• The Appellant has provided no evidence to assert that the Disciplinary Commission was not impartial. All members are impartial and the process was fair.

• The Challenged Decision was made in writing and contains not only the Disciplinary Commission’s decision, but also its reasoning.

• The Appellant’s assertions concerning her refusal to provide a sample are misplaced. The Challenged Decision was determined based on the Appellant’s breach of her provisional suspension when she competed in the Olympia Event. There was no finding on her alleged violation of the anti-doping rules and she was not punished for violating any anti-doping rules as it was not possible to do so based on the evidence beyond all reasonable doubt.

• This appeal is also not admissible because this case is not related to anti-doping, which is a requirement under Part 1 “Mission” of the Code. As set out above, this case simply involves the Appellant’s breach of her provisional suspension, not an ADRV (as none was found by the Disciplinary Commission).

• The Appellant’s storyline as it concerns the attempted doping control is purpose-built. Unlike the Appellant, the DCO had no reason to claim false statements.

• The Witness Statements filed by the First Respondent on 14 May 2019 evidences that the Athlete is lying in that her story regarding the DCO’s visit changed. Zdenka Razymova, a national trainer who trained the Athlete for 3 years, was contacted by the Athlete on 1 November 2017. The Athlete claimed that the DCO was met by the Athlete’s sister while the Athlete was training. Mrs. Razymova then called the chairman of the association, Mr. Vjaceslav Vinograd, who in turn called Mr. Jebas to advice of the events relating to the Athlete and the DCO. On the following week the Athlete met Mrs. Razymova and at that time her story changed, claiming that it was a friend that opened the door to the DCO while the Athlete was at a car tire service facility. As a result of this change in the story Mrs. Razymova stopped all contacts with the Athlete. Mr. Jebas’ Witness Statement confirms the same facts.

51. In its answer, the First Respondent requested the following relief:

I. The appeal of the appellant is dismissed as inadmissible.

In case the Court of Arbitration for Sport will consider the appeal as admissible, the Association of Bodybuilding and Fitness suggests that the Court of Arbitration for Sport would rule as follows:

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I. The appellate court confirms the decision of the Disciplinary Committee of Association of Bodybuilding and Fitness dated on 31st October 2018 imposing to the appellant the punishment of disqualification in the extent of 2 years and deciding on adjournment of the matter.

52. The Second Respondent did not file an answer in this procedure. The Second Respondent did, however, submit an “Opinion” dated 28 December 2018 and statements dated 7 January 2019 and 11 February 2019 in which it:

• Stated that it “holds an unambiguous conclusion that the athlete … violated anti-doping rule of the Regulations (Code) Article 2.3 in a manner of evading sample collection without reasonable justification after notification resulting from relevant anti-doping rules”.

• Stated that the Athlete has also breached the relevant riles by participating at the Olympia Event after her provisional suspension.

• Questioned the integrity of the Athlete stating that “Czech Anti-Doping Committee strongly protests against false and intentionally speculative assertions of the athlete Lenka Ferencukova and will not comment neither these invented opinions, nor the numerous documentations adressed to the Czech Anti Doping Committee and other institutions” (bold in the original “Opinion” of 28 December 2018).

• Indicated that the matter must be exclusively dealt by the internal bodies in the Czech Republic.

• Indicated that it did not intend to continue as the Second Respondent in this matter.

• In its statement of 7 January 2019, the Second Respondent stated as follows:

- Czech Anti-Doping Committee insists on its objective statement that the procedure during doping control was completely standard and in compliance with the legal rules.

- Athlete Lenka Ferencukova broke anti-doping rule of the Regulations (Code) Article 2.3.

- Due to given circumstances Czech Anti-Doping Committee is not going to continue in this arbitrary procedure as a respondent. According to CAS rule it is possible. The Appellant’s appeal brief is against Association of Body Building and Fitness of the Czech Republic decisions.

- Czech Anti-Doping Committee remains at your disposal for any further information, evidence and documents.

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