After former AFL players Shane Tuck and Danny Frawley were diagnosed with chronic traumatic encephalopathy (CTE) (post-mortem), the issue of brain injury has become a big issue for the AFL, highlighted Emma Johnsen, senior associate, and Raymond Makko, lawyer, at Marque Lawyers.

CTE, a neurodegenerative disease linked to repeated blows to the head, is not yet fully understood but is found to be linked to cognitive impairment and depression. 

“The questions which will be asked in any class action against the AFL are: does the AFL have a duty of care to its players, has the AFL breached that duty, and to what extent is the harm sustained by a player from concussive injuries reasonably foreseeable?” posed Ms Johnsen and Mr Makko.

“Conversely, what role does voluntary assumption of risk play when it comes to a degenerative brain disease?”

Other sporting-related court cases of this kind have appeared only a handful of times in Australia. 

In July last year, former Richmond Tigers player Ty Zantuck won a court bid to sue Richmond for compensation over debilitating back and brain injuries, where he alleged that the club breached its duty of care to properly monitor and treat his concussion symptoms.

Yet, back in 2000, two players argued that the International Rugby Football Board (IRFB) owed them a duty of care to monitor the rules of the game and to change them to reduce “unnecessary risk” to players. The High Court rejected this on the basis that the risk of playing rugby was obvious. 

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The AFL class action on the verge of being brought follows in the footsteps of the USA, where over 4,500 football players sued the NFL before reaching a US$765 million settlement. 

Ms Johnsen and Mr Makko explained that the players alleged the NFL knew about long-term health risks associated with repeated blows to the head and actively concealed and ignored this information, with a judge holding that the NFL was negligent in failing to protect its players.

In 2000, the High Court decided that the IRFB had no control over how the rules would be applied and that it was a decision for local sporting associations. Since then, medical research has developed significantly, and football codes have followed suit. 

All football codes now have “return to play policies”, which govern how quickly a player can return to the field after a concussion. 

Yet, it is becoming evident these rules are not appropriately safeguarding players from such injuries, explained Christopher Fox, head of distribution Asia-Pacific and Europe for Neuroflex, a brain health company specialising in sporting injuries. 

“The secret to the discussion is around when the individual is safe to return to play, and more importantly, what are the consequences to that athlete long term if they suffer another head injury, whilst they are still affected by the effects of concussion,” explained Mr Fox.

“That is the billion-dollar question.”

Neuroflex has done research around the AFL’s 12-day no-play rule, which has shown that 50 per cent of players, 12 days after a concussion, still showed brain scans outside of the normative range. Meaning going back to play puts them at high risk of long-term issues. 

It’s difficult to determine who is ultimately responsible, maintained Mr Fox, seeing as the responsibility for making these decisions is increasingly resting on the shoulders of clinicians. 

For example, the NRL has instigated an independent doctor to make such determinations, who can overrule club doctors. In such a case, there’s a growing concern that the NRL is distancing themselves from any form of liability, he commented. 

“We’re seeing no direction being shown from the concussion committee established by the AFL,” he added.

While there are millions being invested by the AFL in concussion, and it’s been outlined as their number one priority, there’s no leadership being shown, Mr Fox explained. 

Mr Fox said: “In my view, the club is ultimately liable. The ultimate burden of responsibility will not be on the AFL, because they are deflecting, and none are making decisions. 

“A class action would be directed at the club itself.” 

“Our further concern is that clinicians within the club who are making the decisions will ultimately be under the gun,” said Mr Fox. 

Ms Johnsen commented that clubs and governing bodies should play a role in ensuring every player is fully informed about the risks.

“Governing bodies, such as the AFL, owe a duty of care to players to take reasonable care for their safety,” she explained. “Every sporting body needs to keep up to date with research so that policies and rules can be adopted accordingly to reflect current medical research.”

If the class action against the AFL is filed, “players will have the burden of proof to prove, on balance of probabilities, that negligence on the part of the AFL caused or materially contributed to the player’s injury”.

“The AFL ignoring medical research, and/or not educating the players, is likely to be a factor in assessing if the AFL was negligent,” explained Ms Johnsen. 

The conversation also involves a discussion about a sporting body’s moral and ethical obligations to protect and support players, asserted Hugh Powell, partner at Travis Shultz & Partners. 

Players in sports that involve frequent collisions (like AFL, rugby league, rugby union and the NFL) generally do not have the benefit of workers’ compensation if they are injured, explained Mr Powell. 

“These sporting bodies need to do more for the sacrifices their players make, which the sporting bodies are benefiting from.  

“It doesn’t sit well with me to have a situation where an organisation has made a lot of money off the back of players who are then vulnerable to significant long-term medical conditions that will continue to affect them long after they have the game, with little to no protection or support,” stated Mr Powell.