The Trouble With Mr D'Arcy
May 27, 2008
Craig Lord

Would Nick D'Arcy, the Aussie swimmer accused of being an aggressor on dry land, be welcome in Olympic waters? Before you answer, first ask yourself if the following captures the spirit of Olympism and fair play in sport and speaks to the better qualities of athletes who act as ambassadors for aquatic sports: D'Arcy is charged with one count of recklessly inflicting grievous bodily harm after an incident during celebrations following the naming of the Aussie Olympic swim team bound for Beijing that left former swimmer and a fellow Dolphin, Simon Cowley, with severe facial injuries that may dictate the need for supportive plates to be used for some while to come, if not forever.

Of course, D'Arcy, 20, may well be innocent. The case is yet to be heard - by more than one court. He is due back in an Australian courtroom on June 17 and awaits the decision of a Court of Arbitration appeal against the Australian Olympic Committee's decision to drop him from the team. He made the grade in the 200m butterfly. His case raises issues beyond whether he is guilty or not of the crime for which he is accused.

D'Arcy is prevented from approaching or contacting six people, including would-be Olympic teammates Kenrick Monk and Andrew Lauterstein, who both wrote character references for D'Arcy, and world-record-holding sweethearts Eamon Sullivan and Stephanie Rice, who were witnesses to the incident in which Cowley was so severely injured and for which D'Arcy has been charged.

If the CAS appeal goes D'Arcy's way, he will have to apply to a NSW court to have his bail conditions altered to allow him to be in the presence of people who will play a key part in any court case that unfolds post-Beijing. He would have daily contact at camp and during the Games with people who are likely to be called to give evidence.

CAS met to consider the D'Arcy case on May 15. From past experience, such processes can be lengthy, though the D'Arcy camp expects news any day now, according to reports from Down Under.

And so, back to our question: if found guilty, is he fit to be on the Australia Olympic team? And before that, on the basis of the charge alone: should he be kept at more than arm's length from his teammates? And add to that: what effect would his presence have on his teammates, some of whom are good friends of Cowley? And would it be legally prudent to allow D'Arcy to spend a month or so having daily contact with some of the key witnesses in the case against him? These are among the issues that the Australian Olympic Committee and CAS have contemplated.

There was a time when Australian banned Dawn Fraser for 10 years for allegedly nicking a flag. She was pardoned by the Emperor of Japan, who reacted in a balanced and measured way to the harmless high-jinx of several members of the Aussie team in 1964. The Emperor presented Fraser with the flag, but she was flogged by the likes of William Berge Philips, the late former President of FINA. What would Berge Philips have made of the D'Arcy case? Times change but has tolerance stretched to an athlete being charged with what D'Arcy is accused of - pummeling another world-class swimmer's face to pulp - and then have the honour of competing at an Olympic Games for your country? What message does that send? (I had earlier written Olympic in the previous sentence where world-class appears and am happy to change it, even though the sentence was general, given that Cowley did not qualify for a Games - and is now never likely too, not only because of retirement but because of his predicament. And for the two misguided souls who sent in rather bitter and blinkered notes: D'Arcy is not 'yours', neither are the Olympic Games - try being a little less narrow-minded and parochial).

The jury is still out on D'Arcy, of course, and he cannot be presumed guilty before a verdict is returned. Timing, meanwhile, does not suit those who must choose the best punishment to fit the crime should the case favour Cowley. Perhaps the answer lies in sport: if an athlete is found guilty of grievous bodily harm against another athlete - an act that flies in the face of everything that is good about the Olympic spirit - then should that athlete not be asked to pay for all medical costs and compensation due to the victim throughout life and should not every last last dollar earned from any sports prize money (such as word cup, grand prix, world championships, etc) and sponsorship by the aggressor not be sent directly to the bank account of the victim?

The work of CAS is not easy but there is an argument for having decisions work in the interests of fairness for all. In this case, a ruling in favour of D'Arcy would see the sports court lean heavily into areas of national jurisdiction and law over which it has no control and, some would say, should have no sway. Has there been a CAS ruling so far to date that has flown in the face of the bail conditions imposed on an athlete by a domestic court in a criminal case that speaks to the law of the land not the law of sport? CAS lawyers will doubtless wish to tread with caution.