High-stakes litigation in the USA over head injuries caused during professional football matches has serious implications for Australia. Tim Fuller explains why.
With the kick-off to season 2014 around the corner, the National Rugby League (NRL) has moved to protect its players further from head trauma by bringing in new guidelines for concussed players. This follows the ban imposed last season on shoulder charges after a series of sickening collisions between players.
From a legal perspective, the move is a positive one as concussion management policies of the NRL are being closely examined following litigation in the United States against the National Football League (NFL).
Last year the NFL in the United States reached a US$765 million settlement for the concussion litigation brought by more than 4,500 retired players. The former players sued the NFL for failing to protect its players from the dangers and effects of concussions.
In explosive claims, the league was accused of negligence, fraudulent concealment and conspiracy in their attempts to conceal the dangers of concussion. In a recent ruling, the judge presiding over the settlement rejected the settlement on the basis that there may not be enough money to cover all potential costs.
Whilst it is likely that a revamped settlement will be reached, the litigation in the US has major ramifications for the NRL in Australia. It has long been established that sport-governing bodies have a duty to protect their participants on the field.
The NFL litigation has highlighted the importance of educating all personnel involved in contact sports about concussion injury and the need to put in place safe and effective policies for dealing with this sort of head trauma.
NRL slow to react on concussion
It is arguable that the NRL has been slow out of the blocks in addressing the concerns of concussion-related injury amongst their current and former players.
Several former high profile players have spoken publicly about personal health issues that they believe are the result of head trauma endured in the NRL.
Former North Queensland Cowboys player Shaun Valentine, who suffered severe concussions throughout his career, has signed documents that will result in his brain being donated to science upon his death.
Whilst the recent policy and rule changes are positive developments for the NRL, the code is still off the pace when it comes to regulating violence.
It is hard to forget last year’s brawl in the State of Origin series between NSW skipper Paul Gallen and Queensland forward Nate Myles. Gallen landed a series of blows on Myles and later Myles was quoted as saying ‘how good it was and everyone wants to see it’.
Violence in Origin has historically been afforded a greater degree of leniency – almost a ‘what happens on the field, stays on the field’ approach.
In view of concussive injury, it is suggested that the NRL must act to bring tougher sanctions for on-field misconduct.
Players accept a degree of risk when they play a contact sport like rugby league. The ‘inherent risk’ that the High Court referred to in Rootes v Shelton equates to players in the NRL getting tackled – and tackled hard!
Players assume the risk associated with crunching tackles and big body shots in what is an inherently dangerous contact sport.
However, the players also expect the lawmakers of the game to implement rules and policies that protect them from illegal play and unacceptable conduct.
The NFL action in the United States demonstrates that if a sporting league fails to protect their players, they will be vulnerable to legal action. Fundamental to the claim in the NFL was the assertion by the players that they relied on the NFL to protect them.
The NRL is not Robinson Crusoe: the AFL, ARU and others will be closely monitoring their policies in relation to concussion and considering the possible future implications of any collective player action for their sport and organisations.
Tim Fuller is an associate with McInnes Wilson Lawyers in Brisbane. He is a former NRL player