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2009/09: Should Nick D'Arcy have been banned from the  2009 World Swimming Championships?<BR>

2009/09: Should Nick D'Arcy have been banned from the  2009 World Swimming Championships?

What they said...
'He [D'Arcy] has been hammered for the last 12 months. He's been kicked off the (Beijing) Olympic team, given a criminal conviction, now this - how long does it go on for?'
Brian Stehr, Nick D'Arcy's coach

'I guess it doesn't do any good if he [D'Arcy] goes out and swims really, really well and he breaks Australian records and Commonwealth records and wins medals for Australia, all that will mean nothing if he goes out and does this again to somebody else'
Simon Cowley, former Australian Olympic swimmer

The issue at a glance
On April 6, 2009, Australian champion butterfly swimmer, Nick D'Arcy was removed from the World Championship team bound for Rome in July after the Swimming Australia board unanimously decided to terminate his contract for breaching a by-law relating to a swimmer having a criminal conviction.
27 March 2009, a magistrate's court convicted D'Arcy of having inflicted grievous bodily harm and gave him a 14 month suspended jail sentence.  The conviction was in relation to injuries D'Arcy had inflicted on former Australian Olympic swimmer, Simon Cowley, on March 30, 2008.
Cowley suffered fractures to his jaw, eye socket, hard palate, cheekbone and nose. He also had bones broken above the bridge of his nose from a single blow struck by Nick D'Arcy.

Background

Timeline of events relating to Nick D'Arcy

30 March 2008: former swimming champion Simon Cowley suffered facial injuries, including a broken jaw and broken nose, after being struck by Australian butterfly champion Nick D'Arcy in an altercation in a bar at Sydney's King Street wharf area

31 March 2008: D'Arcy was charged with assault occasioning grievous bodily harm and assault.

18 April 2008: the Australian Olympic Committee banned D'Arcy from the Australian team for the Beijing Olympics

16 June 2008: a three-member Court of Arbitration for Sport panel found that D'Arcy had not abided by the provisions of the AOC ethical behaviour bylaw.  

25 November 2008: D'Arcy pleaded guilty to recklessly inflicting grievous bodily harm on Cowley at a bar the previous March.

17 March 2009: D'Arcy won the 200 metres butterfly at the world championship trials in an Australian record time

22 March 2009: D'Arcy was selected as a member of the Australian swim team for the 2009 FINA world championships.

24 March 2009: as a condition of membership on the Australian swim team, D'Arcy agreed to be bound by the Swimming Australia Limited (Swimming Australia) Team By-Laws.

27 March 2009:a court convicted D'Arcy of having inflicted grievous bodily harm and gave him a 14 month suspended jail sentence.

6 April 2009: in response to D'Arcy's conviction, the board of Swimming Australia unanimously resolved that his membership of the Australian swim team to compete in Rome at the 2009 FINA world championships be terminated under Swimming Australia team by-law 17.1.

23 April 2009: Swimming Australia announced that Nick D'Arcy would be able to return to competition after the Rome World Championship titles finish on August 2.

Internet information
The full team 'By-laws and Directions of Swimming Australia' can be found at https://console.clubsonline.com.au/customitem/attachments/SALTeam%20By-Laws%20and%20Directions.pdf
The relevant by-law is 17.1 through to 17.3.  The by-law is printed on page 10.

On April 11, 2009, an opinion piece by columnist Miranda Devine was published in The Sydney Morning Herald. Devine has a mixed attitude toward this issue; though not simply supportive of D'Arcy she appears to believe that his temperament is related to the demands of competitive swimming.  The full text of this article can be found at http://www.smh.com.au/opinion/darcy-defence-walks-on-eggshells-20090410-a2sa.html

On March 30, 2009, the ABC's human interest program, Australian Story, televised a program on Nick D'Arcy's altercation with Simon Cowley that featured extensive interviews with D'Arcy.  A full transcript of the program can be found at http://www.abc.net.au/austory/content/2007/s2531001.htm

On April 18, 2008, the views of former Australian Olympic swimming champion Shane Gould were reported in The Sydney Morning Herald.  Gould gives her views on the treatment received by Nick D'Arcy by Swimming Australia and the Australian Olympic Commission.
The full text of this article can be found at http://www.smh.com.au/news/swimming/shane-goulds-take-on-darcy/2008/04/18/1208025461472.html

On April 3 2008, The Daily published a report on an earlier assault that Nick D'Arcy was allegedly involved in.  The full text of this report can be found at http://www.thedaily.com.au/news/2008/apr/03/darcy-bashed-me-too-says-peach/

On April 4 2008, The Daily published a report on two other incidents that Nick D'Arcy has allegedly been involved in.  The full text of this report can be found at http://www.thedaily.com.au/news/2008/apr/04/new-claims-dog-nick-darcy/
 
On April 23, 2009, the British newspaper, The Guardian, published a report on Swimming Australia's reinstatement of Nick D'Arcy.  The full text of this report can be found at http://www.guardian.co.uk/sport/feedarticle/8469380

Arguments against Nick D'Arcy having been banned from the  2009 World Swimming Championships
1.  D'Arcy has already been punished for his assault on Cowley
Those who oppose Nick D'Arcy being banned from the World Championships in Rome claim the penalty is unjust as D'Arcy has already been punished for his assault on Simon Cowley through his omission last year from the Australian Olympic swimming team.
Nick D'Arcy's father, Justin D'Arcy, has claimed that he can not understand Swimming Australia's decision given the Australian Olympic Committee (AOC) had already punished his son by cutting him from the Beijing team.
Mr D'Arcy has stated, 'It is now seemingly a matter of every other sporting body that's subordinate to (the AOC) just lining up in queue to punish him for precisely the same thing. I don't know when it is going to finish, frankly.'
One unnamed member of the Australian swim team has similarly stated, 'He has earned his place on the Australian team two times in a row now and I just don't know what he has to do to be selected on a team.
He has been punished once for that and we've signed a new contract since then and I thought he could be part of the team.  There's convicted criminals in a lot of other sports going around.'
D'Arcy's coach Brian Stehr said he felt D'Arcy had been 'indefinitely' suspended by Swimming Australia.
Mr Stehr stated, 'He has been hammered for the last 12 months. He's been kicked off the (Beijing) Olympic team, given a criminal conviction, now this - how long does it go on for?...
It's pretty amazing that they (Swimming Australia) take that position given that he has already been punished.'
In an article published in The Sydney Morning Herald in April 11, 2009, Miranda Devine stated, 'When will it end? Losing his Olympic dream was a fitting poolside punishment for D'Arcy. His criminal conviction will have lifelong consequences. He has apologised to Cowley.
That is where it should have ended, with a clean slate, and an opportunity to redeem himself. Instead, D'Arcy keeps paying the piper.'

2.  Swimming Australia should not have allowed D'Arcy to train and try out for the world championships if it intended to ban him.
It has been claimed that Swimming Australia has effectively misled Nick D'Arcy by allowing him to continue training and to try out for the World Championships despite the apparent  likelihood that he would again be banned.
Brian Stehr, Nick D'Arcy's coach, has said he was angry Swimming Australia had strung D'Arcy along, letting him train then qualify for the Rome titles without telling him that he could be dropped under their by-laws due to his conviction.
'Nick was always going to be convicted because he pleaded guilty,' Stehr said. 'Why did they allow him to be selected on the team only to take it away from him again - it just amazes me.'
One unnamed member of the Australian swimming team has agreed that D'Arcy had been misled into believing that he could redeem himself if he turned his life around with a commitment to swimming.
The swimmer has stated, 'Maybe if he had have known and found this out a year ago he could have not kept on swimming all year and actually moved forward with his life.'
Former world champion swimmer and Olympic medallist Matt Welsh has said Swimming Australia should have banned Nick D'Arcy from swimming rather than allowing him to believe he might be a part of the World Championship team to go to Rome.
Matt Welsh has stated, 'I think Swimming Australia should have done something earlier.  I know they had to wait for the (court) case to be finalised but if they could have given (D'Arcy) a time frame, some sort of ban or time out from the sport, then at least he'd know and not have been strung along.'

3.  D'Arcy has expressed remorse and is trying to modify his behaviour
Immediately after the altercation with Simon Cowley, Nick D'Arcy stated, 'I deeply regret my involvement in this incident and the injury occasioned to Simon Cowley.
This was a night marked for celebration of the selection of the Australian Olympic swimming team.
I sincerely regret the embarrassment caused to Australian swimming, the Australian Olympic swimming team and to my family.'
On the Nine Network's 'A Current Affair' program, D'Arcy apologised for injuring Cowley.  He stated, 'Obviously it was a very serious situation, one that I am very sorry for, and I think it's a situation you carry around for the rest of your life.
If I could go back and change it, I would. It was a situation I would never, never have intended myself to be in.'
D'Arcy has admitted to problems with binge drinking and impulse control, and said he visits a psychologist once a week to deal with his anger management issues.
Outside the magistrates court where he was found guilty of inflicting grievous bodily harm and given a suspended sentence, D'Arcy said he was sorry about what he had done to Cowley and hoped that the breaststrokes would one day be able to forgive him.
D'Arcy further said, 'And while I'm on the topic of apologies I would also like to apologise to the Australian public as I'm aware that this had a detrimental affect on them as well.
I'd just like to say that today's sentence of a 14-month suspended sentence is very serious and I will be complying with all the directions that were given to me by the courts.
And I'd just like to say to others of my age that this is a situation that none of us need to find ourselves in and we just  need to watch our drinking and we obviously need to watch our behaviour when we are out and about.
I now have a job to do and that is to return to my study, return to my swimming and comply with all the magistrate's requests.'

4.  D'Arcy claims he acted in self-defence
Nick D'Arcy's lawyer, Jack Leitner, has stated that his client acted defensively when approached by Cowley.
'It is true that there was a physical altercation between Simon Cowley and my client, whereupon without any warning Simon Cowley slapped my client to the face,' Leitner said. 'Cowley then attempted to introduce himself and approached my client shortly thereafter and my client, fearing another strike, responded by punching Cowley once to the face.'
John Favretto was the magistrate who heard the case against Nick D'Arcy.  Mr Favretto has said the damage done Simon Cowley was extreme because D'Arcy was an elite swimmer with considerable upper body strength.
Mr Favretto stated, 'While there was only one punch, it must have been with considerable force given the extent of the injury.'  But Favretto also pointed out that D'Arcy had been provoked by Cowley, who had slapped his face or head a few seconds before he lashed out. This was in the statement of facts before the court and was agreed to by Cowley and his lawyers.
'It was a case of self-defence, there is no doubt about that,' Favretto told the court. 'It is just the level of response. He is a young man, a very fit young man. It is not that he necessarily used excessive force ... sometimes it's how the punch is thrown.'

5.  The Australian Olympic Committee has been inconsistent
D'Arcy's legal team has argued that the AOC had been inconsistent in their ruling because they had allowed an Australian boxer, Peter Wakefield, to compete at the 2004 Olympics while he was on bail facing serious assault charges.  Wakefield, who was allowed to compete in Greece while on bail after being charged with assault on his sister's boyfriend. Wakefield was later convicted and jailed.
When Nick D'Arcy was banned from the Australian team to go to the Beijing Olympics, Australian Olympic swimmer, Kenrick Monk, a friend of D'Arcy's stated , ' What's happened in the past with other athletes in similar situations [is they] are allowed to go.  It just shows there are rules for swimmers and rules for other athletes, so it is a bit disappointing, isn't it?
It's upsetting to see a good friend like that get his dream thrown into his face ... I'm just disappointed with their decision. It's one of those upsetting days in a sporting career, but we do move on and we look at the future, don't we?'

Arguments in favour of Nick D'Arcy having been banned from the 2009 world swimming championships
1.  D'Arcy has brought Australian swimming into disrepute
Swimming Australia's bylaws specifically state that a swimmer can be banned from a team if his or her actions might bring Swimming Australia 'into disrepute'.  Australian swimming relies heavily on public goodwill and on commercial sponsorships. Any action by a swimmer which damages the public standing of Swimming Australia is able to be punished.
It had already been judged that Nick D'Arcy had acted in such a manner.  When, in 2008, D'Arcy was barred from the Australian swimming team to compete at the Beijing Olympics.   Australian Olympic Committee president John Coates stated, 'This is obviously a difficult decision to make, but the question is whether his conduct has brought, or is likely to bring himself, the sport of swimming, the team and the AOC into disrepute and censure.
It's clear that being charged with criminal offences of such a serious nature is sufficient to bring Nicholas and the sport of swimming into disrepute, and is likely to bring the team and the AOC into disrepute if he continues to be a member of the team.'
Coates went on to say, 'It goes without saying that the reputation of the sport of swimming, the Olympic team and the Australian Olympic Committee is of the highest level in this country - and must remain so.
Membership of the team is a privilege to enjoy and the standards expected of our athletes is extremely high because of the public reputation, which has been established and maintained by our Olympians over many years.
Those standards and the achievements of our team are matters of which Australians are justifiably proud.'
It was judged after D'Arcy's conviction on these charges that his poor conduct was still likely to damage the standing of Australian swimming.

2.  D'Arcy has a criminal conviction
Under Swimming Australia  by-laws, if a swimmer is convicted of a criminal offence they can be cut from a team.
Nick D'Arcy's position on the swim team bound for Rome was already under review by a Swimming Australia judiciary committee hearing.  At a Swimming Australia board meeting on Monday the sport's governing body decided to revoke his position on the team.
The Swimming Australia board declared, 'Following Nicholas D'Arcy's conviction, the board of Swimming Australia met on 6 April 2009 and unanimously resolved that Nicholas D'Arcy's membership of the Australian swim team to compete in Rome at the 2009 FINA world championships be terminated immediately under Swimming Australia team by-law 17.1...
Swimming Australia notes that the decision to exclude Nicholas D'Arcy from the 2008 Australian Olympic team was made by the Australian Olympic Committee and not Swimming Australia."
The terms of the by-law state:
'17.1. SAL may terminate a Team Member's membership of a Team by giving written
notice to the Team Member if the Team Member:
(a) commits a serious breach of these Team By-Laws;
(b) is convicted of a criminal offence;
(c) is suspended from any event, competition, team or squad relevant to his or her
participation in the Team;
(d) is found guilty by FINA or SAL of a breach or violation of any of their regulations
or other laws;
(e) does not, in SAL's opinion, maintain a satisfactory level of performance or
standing in the sport of swimming;
(f) retires from swimming or does not regularly compete in SAL Swimming Events;
(g) in SAL's opinion, deteriorates in public image;
(h) is involved in any major controversy; or
(i) brings SAL and the sport of swimming into disrepute.'

3.  D'Arcy was aware that his conviction might mean he would be banned from the world championships
It has been claimed that D'Arcy must have been aware that his membership of the team to attend the World Championships in Rome was at risk if he was convicted of inflicting grievous bodily harm on Simon Cowley.
The Swimming Australia regulations clearly state that 'SAL may terminate a Team Member's membership of a Team by giving written notice to the Team Member if the Team Member ... is convicted of a criminal offence.'
Further,  on March 24, 2009, as a condition of membership on the Australian swim team, D'Arcy agreed to be bound by the Swimming Australia Limited (Swimming Australia) Team By-Laws.

4.  D'Arcy's remorse has been questioned
Simon Cowley, the former Olympic swimmer who received serious injuries after having been punched by Australian butterfly champion, Nick D'Arcy, has publicly doubted the extent of D'Arcy's remorse.
After the magistrate court hearing at which D'Arcy was found guilty and given a suspended sentence, Cowley stated that  he believed D'Arcy was not sorry for attacking him, adding there were no wishes for his speedy recovery from D'Arcy or his family until after the week's hearing.
Cowley stated, 'Twelve months is a long time before apologising for something like this, for causing this much damage. I could have been killed.
I don't think that jail is necessarily the answer for Nick D'Arcy, but I guess it doesn't do any good if he goes out and swims really, really well and he breaks Australian records and Commonwealth records and wins medals for Australia, all that will mean nothing if he goes out and does this again to somebody else.'
One blogger responding to Nick D'Arcy's account of events on the ABC's Australian Story stated, 'I watched both interviews again and am more convinced now that D'Arcy is not really sorry for what he has done not only to Cowley but also to the surfer he bashed and the recent incident with the bouncer. Yes it can be said that he has paid the price by missing the Olympics but I truly feel that he ... will bash again and generally pose a threat to other people's wellbeing'.

5.  D'Arcy's version of events has been disputed and concerns have been raised about his previous behaviour
Simon Cowley, the Commonwealth Games gold medalist who suffered serious injuries when fellow swimmer Nick D'Arcy punched him in a Sydney bar, has denied he started the  incident.
Cowley has stated, 'I definitely did nothing to deserve what Nick D'Arcy did to me.'
Cowley claims to have no memory of the attack as a result of the injuries he suffered; however, he claims that friends who were present at the time have told him he gave D'Arcy a light tap on the back of the head, a gentle admonishment for goading fellow swimmer Eamon Sullivan to drink with him.
Cowley has stated, 'It's quite difficult for me to come to terms with the fact that people were suggesting that I slapped him first and that I was the aggressor, and that's something that has kept me up for many nights.
For me to come out and slap someone across the face, someone who I've never met before, someone who I don't know anything about, I find that very hard to believe.'
It has further been claimed that D'Arcy's previous conduct is a cause for concern.  Allegations have emerged that D'Arcy was part of a group that threatened another Olympian and vandalised his family home.
The incident allegedly occurred in 2006 after D'Arcy became angry that pole vaulter Matt Boyd, the son of dual Olympian Ray Boyd, had become friends with a woman D'Arcy had previously been involved with..
A report in The Brisbane Courier Mail stated that D'Arcy had allegedly threatened the Boyds and then went to their Sippy Downs home with some friends to smash a glass door and a letter box. D'Arcy is understood to have paid restitution to the Boyds for damage to the home.
It has also been alleged that in November 2007, D'Arcy bashed a fellow Queensland athlete, Tim Peach, during a drunken altercation outside a Mooloolaba night club.
The incident left the Queensland ironman's face unrecognisable and forced him to miss a week of training leading up to the Coolangatta Gold.
It is understood  that D'Arcy's father Justin, a doctor, arranged for Peach's medical treatment. He is also said to have paid him the wages he missed due to his injuries.
As recently as January 2009,  two months before his sentencing for the Cowley assault,  Nick D'Arcy was evicted from another bar and then alleged to have threatened the bouncer with the words, 'One hit is all it takes.'

Further implications
Oddly, the Australian media has devoted little time to the question of why Nick D'Arcy was banned from the World Championship team going to Rome.  Swimming Australia's by-laws explicitly state that a swimmer may be banned from a team if convicted of a criminal offence.  On this basis D'Arcy was obviously likely to be barred from the team.  The same by-law also refers to banning on the basis of bringing the sport into disrepute.  Here, too, Nick D'Arcy's conduct appears likely to make his inclusion in the team uncertain.
Recent condemnation of the way in which some Australian rugby players treat women has provoked renewed debate within this country of what we expect of  prominent sports people as role models.  There has also been discussion of the extent to which the culture developed within certain competitive sporting codes may actually contribute to antisocial behaviour.  We do not normally include sports such as swimming in such discussions; however, the events involving Nick D'Arcy suggest that perhaps it is time we did so.
Miranda Devine, a columnist for The Sydney Morning Herald, has stated, 'Swimming is a mind-numbingly tedious individual sport which doesn't exactly require advanced social skills. Champions are aggressive and single-minded, and the personality profile of a person prepared to swim up and down a pool for 10,000 hours, just to train for the opportunity to perhaps one day swim for their country, is a special type of loner.'
Nick D'Arcy himself has stated, 'I'm not a traditional alcoholic, I don't need a drink in the morning, or a drink to get up and I don't drink every day, it's a problem with binge drinking. I feel like I've got to catch up, like I've got to get all the drinking in that everyone else got in, like in the 12 weeks or so that I haven't been drinking, I get absolutely sloshed. I do lose some of the impulse control that I do have when I am sober. I have grown from seeing a psychologist and realising the wrong in, the wrong in the act that I did commit. No one likes people who get out there and have too many drinks and get into either verbal or physical altercations. It's just not an accepted part of society and it's not something I find acceptable and yet I still found myself in that situation. I selfishly, initially, kind of thought it was, it was just kind of hurting me. But as I went through the process I realised that it was my parents, that it was my family, that it was my friends, it was Simon especially who was heavily impacted by, by the incident and upon realising that I think you kind of grow up and you become a little bit different.'
D'Arcy's explanation of his binge drinking appears to be a description of compensatory behaviour taken in reaction to the weeks' of discipline and denial that his training regime forces upon him.    D'Arcy's admission that it took many counselling sessions before he recognised the assault had damaged other people suggests the egoism competitive sport can encourage.
This whole incident should force our sporting communities to consider what, apart from winning, we want of our sports champions.  Surely D'Arcy was judged as having brought swimming into disrepute because his out-of-the-pool behaviour suggested a lack of sportsmanship.  Perhaps it is time all Australian sporting codes considered defining what sportsmanship actually means.

Newspaper items used in the compilation of this issue outline
The Australian: February 27, page 6, news item by John Stapleton, `D'Arcy's attack on swimmer not excessive: magistrate'.
http://www.theaustralian.news.com.au/story/0,25197,25112833-5006784,00.html

The Age: February 27, page 3, news item, `D'Arcy not necessarily using excessive force, says magistrate'.
http://www.theage.com.au/national/darcy-not-necessarily-using-excessive-force-says-magistrate-20090226-8j7l.html

The Australian: March 28, page 3, news item by Paver and Jeffery, `D'Arcy off the block, but not yet in pool'.
http://www.theaustralian.news.com.au/story/0,25197,25253286-5006784,00.html

The Herald-Sun: April 8, page 9, news item, `Dumped swimmer may quit'. (Online version has different title)
http://www.news.com.au/heraldsun/story/0,21985,25305051-11088,00.html

The Australian: April 9, page 16, news item by Jenny McAsey, `D'Arcy puts head down amid crisis'.
http://www.theaustralian.news.com.au/story/0,25197,25310910-5015720,00.html

The Australian: April 8, page 3, news item by Jenny McAsey, `D'Arcy eyes legal action'.
http://www.theaustralian.news.com.au/story/0,25197,25306328-5015720,00.html

The Age, April 9, page 16, letter from Ian Robinson: 'Give D'Arcy a go' (when using the online link, scroll down through the letters to this one)
http://www.theage.com.au/opinion/letters/pm-must-justify-spending-43bn-20090408-a0xt.html?page=-1

Swimming World Magazine (online), April 10, comment by John Lohn: 'Give D'Arcy a go'
http://www.swimmingworldmagazine.com/lane9/news/20895.asp