Two previous Swimwatch posts have discussed Swimming New Zealand’s (SNZ) decision to deny me the right to read the Marris Report into complaints made about my coaching.

SNZ has been getting legal advice on this dispute from as far back as August 2018. With the futile “extensive submissions” they made to the Privacy Commission their lost cause must be costing a fortune. SNZ charge athletes $5,300 to go to a World Championships and waste money on protecting their own skins. Before we are done the cost will be much higher than it is now.

The case before the Tribunal will include a claim for compensation for damages and harm caused by the SNZ decision. The relevant section of the Privacy Act says.

Section 88 Privacy Act 1993

88 Damages

(1)

In any proceedings under section 82 or section 83, the Tribunal may award damages against the defendant for an interference with the privacy of an individual in respect of any 1 or more of the following:

(a)

pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved individual for the purpose of, the transaction or activity out of which the interference arose:

(b)

loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:

(c)

humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.

SNZ Rules list ten sanctions SNZ can impose on a member found guilty of wrongdoing. Things like a reprimand, a suspension, an expulsion, a fine and the cancelation of results or awards can be imposed on guilty members. But there is an eleventh punishment that is far worse than any of the other ten. It is a sanction not published in SNZ Rules; it is the sanction of silence. SNZ are not allowed to use it. But they do.

If SNZ want to take a member down, they latch on to some trumped-up charge, have a trial and refuse to publish the “not guilty” verdict. The swimming world immediately assumes the worst. Guilty as charged is the verdict of silence. A reprimand, a suspension, an expulsion, a fine or the cancelation of results or awards are minor compared to a lifetime spent under the cloud of suspicion created by SNZ’s silence. It is wrong. It is immoral. And we are in the process of having it ruled illegal.

I am not the first person to suffer at the hands of the SNZ silent treatment. Jon Winter knows the sanction of silence only too well. But with this case I certainly hope to be SNZ’s last victim. For three years SNZ’s silence has caused me financial loss. It is only proper that SNZ recompense me for the damages they caused.

The balance of this post will quantify those damages.

Pecuniary Loss

I have written three books on coaching swimming. (Swim to the Top, Swimming a Training Program and Junior Swimming) The first two were published by a top publisher of books on sport, German company Meyer & Meyer. Both were published before the SNZ investigation and their decision to withhold the Marris Report. The third book was published by the same publisher one year ago well after the SNZ decision.

There has been a dramatic difference in the sale of the most recent book compared to the first two. The first two both reached the Amazon,com top selling sports book’s list. Sales of the most recent book are well below that level. It is my view that potential customers have been influenced by the unresolved issues caused by SNZ’s refusal to provide me with the Marris Report that could clear my name. In the first year of sales the difference is between 2000 copies of each of the first two books sold and 200 copies of the third book – a difference of 1800 books. My income from 1800 books would have been $2.00 per book or $3,600. I am claiming this loss from SNZ.

Loss of any benefit

My coaching career was shortened as a direct result of SNZ’s decision to withhold the Marris Report into this complaint. The complaint was made in early 2016. Since then I have worked for one year in Saudi Arabia. The Swimming New Zealand decision to withhold the investigator’s Report has cost me two years of coaching work in either New Zealand or the United States.

The principal focus of my coaching career had been in the United States. I undertook the work and time to secure a Level Five, American Swimming Coaches Association qualification. This is widely recognised around the world as the highest swim coaching qualification. It involved four years academic study and practical coaching to an Olympic Games level. The administration cost involved was approximately $US2,500. No claim is being made in respect of this amount.

In addition in 2007 the American Swimming Coaches Association awarded me their Certificate of Excellence for “Outstanding Coaching Achievement in the United States of America”.

In order for me to live and coach freely in the United States both my wife and I incurred the cost of securing American Green Cards. The legal and administration cost involved was approximately $12,500. No claim is being made in respect of this amount.

The SNZ decision to withhold the Marris Report into these complaints meant I simply could not apply for work as a swim coach in New Zealand or the United States. If I had applied for a coaching position it would be necessary to be open about the investigation into my behaviour but admit I was unable to provide the conclusions of the investigation because of SNZ’s decision to keep them secret.

In the world of the “Me too” movement in the United States and New Zealand that information would instantly exclude me from any position involving teaching children; as it most properly should.

Trying to hide the existence of the investigation was never an option. Firstly it was too well known in the New Zealand and American swimming community and secondly I do not condone that form of resumé padding.

For two years the SNZ refusal to provide me with the Marris Report has denied me the benefit of working in New Zealand and the United States. Therefore I am seeking payment of two year’s New Zealand salary for a swim coach of my training, experience and record by way of compensation.

This claim is based on the fact that my qualifications and coaching record place me in the top 10% of New Zealand swim coaches. I am not taking into account that in the USA I would be paid 20% more than in New Zealand.

The average pay for a Swimming Coach in New Zealand is NZ$59,869 per year. The top 10% of coaches in New Zealand are paid between $70,000 and $81,000 per year. Reference the following; https://www.payscale.com/research/NZ/Job=Swimming_Coach/Salary

For the “loss of any benefit which the aggrieved individual might reasonably have been expected to obtain but for the interference”, I am therefore claiming the sum of two years at $81,000 per year being payment for the two years I have been unable to work as a coach. The total amount claimed is $162,000.

Humiliation, loss of dignity, and injury to feelings

The delay in providing the Report has caused all three; humiliation, loss of dignity, and injury to feelings. The accusations made were serious. They were career ending. They were also personally destructive to my social and personal life. I was accused of suggesting female swimmers get pregnant in order to take training advantage of the early pregnancy increase in blood volume. I was accused of then recommending the foetus be aborted. I was accused of an obsession with one swimmer’s breasts and secretly photographing that swimmer. I was accused of demanding female swimmers attend an Auckland strip club. The list of accusations was terrible, disgusting and wrong.

Even sitting through three days of interrogation during the investigation, answering questions that I accept were necessary was a distressing experience. But worse than that has been the three years since 2016 that I have had to answer questions from parents, swimmers, coaching peers and the press about the investigation. In all cases there has been three years of suspicion based on the question, “Why doesn’t he know about the results of the investigation? What is he hiding?”

Explaining that SNZ refused to provide the Marris Report was the truth but was never adequate. Always there was the constant suspicion that I was hiding something. The Marris Report wasn’t available because I wanted to keep its findings secret. It has been a three year long cloud caused by SNZ’s action. It has seriously affected my family, my health, my friends, my work colleagues and my public reputation. For this reason I am claiming the following amounts.

Professional Humiliation $25,000

Loss of dignity to family and friends $25,000

Personal Injury $25,000

Total $75.000

Summary

Compensation sought in respect of the serious harm caused by the decision of SNZ to withhold the investigation Marris Report is:

Pecuniary Loss $3,600

Loss of wages benefit $162,000

Humiliation, loss of dignity, and injury to feelings $75,000

Total compensation claimed $240,600

And to think all this could have been avoided if Cotterill, Johns and their approachable lawyer had handed over the Marris Report three years ago. Every dollar is down to them.