Why the AFL Is Its Own Worst Enemy When It Comes to Concussions, Tribunals and Player Safety
1. Introduction
2022 was a hugely successful year for the Australian Football League (AFL). A record 1,190,671 Club Members. A newly signed $4.5 billion broadcast rights agreement. An increase in revenue by $206.3 million. [1] The AFL has a stronghold on the Australian sporting landscape. But behind closed doors, the AFL Commission is sweating.
This forum piece will discuss why the AFL has positioned itself as its own worst enemy.
First, I will analyse the impact of several class actions claiming the AFL’s negligence in managing concussion. Second, I will examine the AFL’s inadequate attempt to manage concussion through tentative Tribunal Guidelines. Finally, I will discuss how the AFL’s poor ground management has created shaky ground between turf stability and player welfare. Whilst the AFL professes that player health and wellbeing is paramount, the League’s inapt response to concussion and actions in the lead up to the 2023 season sees it continue to position itself as its own worst enemy.
2. The Concussion Conundrum
On 15 March 2023, the AFL released its updated guidelines for its ‘Strategic Plan for Sport-Related Concussion in Australian Football’. [2] The AFL emphasises that the health and safety of former, current and future players at all levels is of paramount importance. However, despite establishing several research studies, a new concussion governance structure and a vociferous commitment to player support and education, the AFL’s bona fide pledge to player safety has been questioned. Brendan Swan, CEO of the newly formed charity, Concussion Australia, told a Senate inquiry in February 2023 that the “AFL and NRL are more concerned with legal liability than player health.”[3] The AFL’s liability is headed by several class actions submitted in the Supreme Court of Victoria that claim the AFL and its Clubs were negligent in managing players’ concussion injuries.
Who is Seeking Compensation from the AFL?
South Australian-based lawyer, Greg Griffin, outlines that his class action submissions may include a group of more than 200 players.[4] Past players include Shaun Smith, Darren Jarman, the late Shane Tuck, John Platten and John Barnes. Numerous other players have also submitted their own applications in the Victorian Supreme Court. [5] The potential financial liability facing the AFL is significant.
Why are Players Seeking Compensation from the AFL?
Professional sportspeople are exempted from state and territory employer-funded workers’ compensation schemes.[6] Despite this, the AFL still has a duty to provide a safe working environment. Whilst the AFL provides insurance to support injured players, the long-term effects of concussion often do not display until after a player retires. When a player’s contract terminates, their employer-supported insurance arrangements also end. Hence, players facing the long-term effects of concussion are not adequately supported after their career ends.[7]
In 2015, a settlement of $1 billion was reached between the NFL and ex-players who had accused the League of concealing a link between football and long-term brain injury.[8] To mitigate the financial implications of its own impending settlement, the AFL was encouraged in 2021 to establish a $2 billion concussion compensation scheme by player advocate, Peter Jess. No fund has since been established. [9]
The Complex Legal Nature of Sporting Relationships:
An athlete – an employee – is owed a duty of care by his team – their employer. A special duty of care relationship exists in Australian common law.[10] Whilst the application of this duty is commonly applied to incidents involving workplace injuries, the sporting arena complicates this duty of care relationship.
Specifically, workplaces do not typically involve an intrinsic desire to win Premierships. Workplaces do not typically involve intervention from an employed medical doctor on gameday. And workplaces do not typically involve a split-second decision to withdraw a concussed player from a game when the match is on the line. The legal relationships in sport are complicated.
Hence, the key question then arises – how would different parties to several class actions launched in the Supreme Court of Victoria argue their positions?
What may the AFL argue?
At face value, the AFL would be hesitant in entering litigation. Whilst the legal costs in defending a purported $1 billion class action are likely significant, a decision to vociferously defend negligence claims would be harmful to the AFL’s reputation. Following an autopsy into the brain of past NFL Player, Dave Duerson, strong scientific research accompanied the NFL Concussion Lawsuit. It indicated there was a strong correlation between repeated hits to the head and irreparable and incurable damage to the brain. The NFL recognised the magnitude of scientific evidence against them and aimed to reach a settlement as quickly as possible – recognising the need for funds to reach players and players’ families in need of immediate care. [11]
Should the AFL choose to strongly defend claims of negligence against them, the risk of long-running litigation would prevent players and their families from using compensation money to fund medical exams, treatment and further research. A decision to prolong claimants from accessing compensation would impact the reputation of the AFL. In sum, the AFL’s stance would likely mirror that of the NFL. That is, it would be keenly sensitive to its public image and would be compliant in reaching an agreement that provides immediate relief and immediate support to impacted players and their families. [12]
What May Past Players Argue?
The basis of past players’ arguments is that AFL has failed to take proper care of their health and safety. Primarily, that the AFL had been negligent in its duty of care in providing education and resources to raise awareness and support players experiencing the effects of concussion. Michel Margalit, managing principal of Margalit Injury lawyers – the firm responsible for representing more than 60 former AFL players in one class action – criticised a 2002 report from the AFL. The 2002 report stated:
Recent research has shown that they [players] generally suffer no detrimental effects observed in performance, no increased risk of injury and no persistent defects in their neuro-psychological function (emphasis added).[13]
Whilst it is important to note that technology and research in the 2002 Report was primitive, a 2019 study debunks the AFL’s 2002 stance – one in 10 people with concussion experience persistent symptoms for months or even years. [14] It was not until the beginning of the 2011 season when the AFL and AFL Medical Officers Association introduced revised Concussion Management Guidelines that took a more conservative approach to concussion management. [15] Clearly, these Guidelines came far too late with a majority of players in current class actions claims retiring before 2011. Whilst there is an inherent risk of playing professional sport, the AFL’s poor concussion frameworks have led to significant long-term health and financial concerns of past players – some are unable to work due to the effects of concussion.[16]
Do Club Doctors Have a Case to Answer?
Club doctors are also being brought into class action claims. Former Western Bulldog, Liam Picken, claims his 2019 concussion-related retirement was due to Club Doctors failing to meet their duty of care to him. Specifically, they did not inform him about poor cognitive tests.[17] A poor cognitive test is a symptom of concussion.[18]
How Would a ‘Failure to Warn’ Claim Succeed?
Medical practitioners owe a duty of care to their patients to warn of risks that would be significant to a patient in that particular circumstance.[19] [20] In Victoria, section 50 of the Wrongs Act (1958) imposes a duty on a defendant who owes a duty of care to a plaintiff to take reasonable care in giving a warning of risk.[21] Given that Liam Picken is a professional sportsman who depends on his health to take the field and earn an income, a doctor’s failure to warn him of potential concussion symptoms is significant to Picken’s playing and personal future. Without a doctor warning him that he performed poorly in a cognitive test and thereby exhibited symptoms of concussion, he may have assumed that he was safe to return to the ground. Unknowingly, he risked consecutive head-knocks – a leading contributor to chronic traumatic encephalopathy (CTE) disease.[22]
What is the Standard of Care Expected of A Medical Professional in the AFL?
The standard of care expected of medical professionals in a sporting environment is unclear. The Ipp Committee Report noted that there is no reason why professions included under New South Wales’ Civil Liability Act (2002) (equivalent to Victoria’s Wrongs Act (1958)) should not be extended to all professionals – opening the door to claims against professionals in sporting environments. [23] The key question to ask in Victoria is whether the standard of care exercised was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice.[24]
Why A Player is Unlikely to Be Successful in Pursuing Action Against a Club Doctor:
A convoluting element in answering this key question is that Club Doctors would have based their treatment on knowledge and research on what was medically known about concussion at the time of the incident. Whilst it is clear that technology and medical research has enhanced a Doctor’s understanding of concussion in 2023, a Doctor’s limited knowledge about concussion in yesteryear is unlikely to be negligent based on historical medical standards. More specifically, as their treatment was widely accepted in Australia by peer professional opinion at the time of treatment, the Club Doctor was likely not negligent. This proves to be a strong defence for Club Doctors. However, should circumstances arise that fall short of this standard – such as a Doctor insisting that a player return to play whilst concussed – a player has a strong likelihood of success in claiming a Doctor’s negligence.
Conclusion
In sum, concussion is a conundrum. Whilst it is clear that the AFL and its Clubs have a duty of care to its players as employers of its players, the potential negligence of Club Doctors is complicating. Regardless, despite the AFL’s recent attempts in governing and implementing concussion guidelines, their historical failings have positioned the League as its own worst enemy. These failings are further highlighted in the AFL’s recently amended Tribunal Guidelines.
3. A Tiptoeing Tribunal
The AFL’s Strategic Plan in managing concussion has heavily influenced the guiding principles of the AFL Tribunal system. Its first principle is to prioritise the health and safety of AFL players. [25] The AFL’s 2022 Tribunal Guidelines amended the Tribunal’s approach to head-high contact by imposing heavier sanctions and forcing consideration of the potential to cause injury. However, in conjunction with the AFL’s 2023 amendments, the AFL’s Guidelines fail to truly influence on-field players’ decisions. [26]
Closing the Legal Loophole:
The AFL’s leading 2023 amendment was to reduce players escaping suspension due to a procedural error. This was in light of 2022 Brownlow Medallist, Patrick Cripps, receiving no suspension for concussing Brisbane Lion, Callum Ah Chee, with a head-high bump. His charge at the AFL Tribunal was overturned by the Appeals Board. Here, he successfully argued there had been an error in law and unreasonable findings by the jury.[27]Whilst AFL General Counsel, Andrew Dillon, professes the amendments intend to reduce the Tribunal being tied down by legal technicalities in reaching a decision, the amendment has no impact on the way that a player attacks a football contest.
By way of example, a driver does not approach a round-a-bout considering their legal obligations or liability. Rather, they are concerned with the end result – exiting the round-a-bout safely and continuing their journey. So, when Patrick Cripps next enters a contest with Callum Ah Chee, will he anxiously brace for contact knowing that no legal technicality will now find his innocence? This is unlikely. Clearly, the AFL Guidelines are aimed at minimalizing formality and simplifying the decision process. Whilst an efficient decision-making process helps Clubs and Players to plan their team line-ups for an upcoming match, the AFL has closed a legal loophole that no player is intending to leap through. The AFL’s amendment has little influence on the way that AFL players attack a contest – failing to truly reduce actions that lead to head-high contact.
Opening the Door to Head-On Contact:
The AFL has also changed ‘forceful head-on contact’ to not only include a player that has his head ‘down’ over the ball.[28] Whilst the amendment broadens protection to players that are also ‘looking up’, the distinction between ‘looking up’ and ‘looking down’ is unlikely to have a real-time impact on how a player attacks a contest. Whilst the AFL’s intention to protect the head is clear, it falls short of truly having an impact on players’ decisions on matchday.
How Should the AFL Approach Head-High Contact?
The unpredictability and competitiveness of sport will be forever intrinsic to athletes. The unpredictability of Australian Rules football is its staple. However, this has consequences on players and their health and welfare. Whilst a player can do all they can to protect themselves when entering into a contest, it is what the oppositionplayer does that cannot be controlled. Whilst the AFL meets the issue of concussion with heavier sanctions for head-high contact, it needs to go further in truly having an impact on player behaviour.
Instances of Kysaiah Pickett and Shane McAdam’s respective head-high bumps during Round 1 still indicates a carelessness in players choosing to bump. Critically, one of the most successful Tribunal Guidelines may prove to be an answer. In light of Brisbane Lion, Alistair Lynch’s, 10-game suspension for exchanging multiple punches during the 2004 Grand Final, the AFL decided to double penalties during Grand Finals. Similar incidents have not been seen since.
A Doubling of Penalties?
So, the question remains – would a doubling of penalties that involve head-high contact have a comparative influence on on-field behaviour and reduce reportable incidents of head-high contact?Whilst a majority of concussions are not attributable to reportable offences, doubling sanctions for consequences of a major weapon in the game – the bump – would undoubtedly prevent the actions of Kysaiah Pickett and Shane McAdam. Melbourne Coach, Simon Goodwin, has since instructed his players to avoid the bump altogether.[29] It is this change in attitude that is needed to truly modernise the AFL’s masculinist culture, and its attempts to protect the head.
Whilst the traditionalist football fan may want to preserve the bump, its optics are significantly outweighed by the AFL’s concern for player safety and wellbeing. Without the AFL adopting a stricter stance in its Tribunal Guidelines, the AFL will only continue to paint itself as its own worst enemy in its fight to protect the head. An emphatic statement of the AFL’s commitment to player safety may also influence its commitment to better managing stadium turf.
4. Why is the AFL Letting its Players Play on Shaky Ground?
10,000 square metres of turf was replaced between March 3 2023 and the first game of the AFL season at the MCG following two Ed Sheeran concerts. [30] Turf was also replaced at Marvel Stadium following Harry Styles’ concerts. [31] Significant commentary then suddenly surrounded the condition of each venue’s playing surface, with the AFL having “no concerns” that the surface would be ready for play. However, whilst Ed Sheeran and Harry Styles’ concerts were 18 months in the making, could the AFL have better prepared its stadium’s turf for the 2023 Season?
The Issue of Inconsistency:
The MCG was meticulous in its preparation for Round 1. Its replacement turf was ready grown in Alexandra, Victoria.[32] Regardless, the difference in how the newly installed and existing turf played was noticeable. In seeking feedback from players, General Manager of Player and Stakeholder Relations at the AFL Players Association, Brett Murphy, highlighted that feedback was varied – some players noted different sections of the ground were slippery and inconsistent.[33] Given the unpredictability and 360-degree gameplay of Australian Rules, the instability of turf heightens the chance of injury to unknowing players who trust the ground to suddenly halt or turn direction.
For Geelong, Tom Stewart and Sam De Koning both left the MCG to receive treatment for lower-leg injuries during Round 1. Stewart is set for a month-long stint on the sidelines after slipping on the venue’s turf. Carlton’s Sam Docherty also expressed his serious concerns about the state of the surface following his past ACL ruptures.[34] Given the AFL already faces several negligence class actions, concerns regarding the suitability of its turf must have also been felt by the League.
Could the AFL Face Negligence Claims in Failing to Exercise a Duty of Care to Properly Prepare its Stadiums’ Turf?
Whilst the AFL only owns Marvel Stadium, their close relationship with Ground Managers across Australia – in particular the Melbourne Cricket Club (MCC) – would have seen the AFL closely liaise with Ground Managers to ensure football ventures were fit for purpose. However, given that the AFL does not manage the MCG, their liability is contentious. Furthermore, despite owning Marvel Stadium, the AFL would have had limited bargaining power with respect to the date of the Harry Styles’ concert.
Nevertheless, it is undoubted that the AFL has placed profits from Harry Styles’ Tour over its players’ safety by failing to allow sufficient time to prepare its turf. Given the financial impact of COVID-19 and the League’s desire to recover profits, perhaps this is a ‘sign of the times.’
5. Conclusion:
Whilst the AFL has undoubtedly strengthened its commitment to managing concussion, its historical failings are met with inadequate Tribunal Guidelines. Despite a promising new concussion Strategic Plan and amendments to the 2023 Tribunal Guidelines, the AFL must do more to truly influence on-field player behaviour. This influence must also extend to changing the masculinist culture within the AFL towards the ‘bump.’ However, whilst the AFL professes that former, current and future player health and safety is of paramount importance, its actions in failing to properly manage its calendar and allow sufficient time for turf preparation calls this commitment into question. Without modernising the AFL’s culture towards protecting the head and prioritising player safety, the League will only continue to position itself as its own worst enemy and open itself up to further class action litigation.
[1] AFL, ‘2022 Annual Report’, 2022 AFL Annual Report (Report, 1 February 2023) <https://resources.afl.com.au/afl/document/2023/03/03/a2ac5fc4-1ce6-4a12-85e6-9d398a960142/2022-AFL_AR_Digital-Doc_150dpi_Low.pdf?_ga=2.27694136.543407598.1678877428-1094665405.1676071967>.
[2] ‘AFL Released Updated Concussion Guidelines and Strategic Plan’, AFL (Online Article, 14 March 2023 Page) <https://www.afl.com.au/news/882098/afl-releases-updated-concussion-guidelines-and-strategic-plan#:~:text=In%20following%20the%20elite%20game,return%2Dto%2Dplay%20program.>.
[3] Jake Lapham, ‘Senate Concussion Inquiry Told NRL, AFL ‘More Concerned with Legal Liability than Player Health’, ABC (Online Article, 22 February 2023) <https://www.abc.net.au/news/2023-02-22/qld-concussion-inquiry-nfl-nrl-national-guidelines/102009024>.
[4] Jon Pierik, ‘Jarman, Smith, Tuck Lead Second Concussion Class Action Against AFL’, The Age (Online Article, 15 March 2023) <https://www.theage.com.au/sport/afl/jarman-smith-tuck-lead-second-concussion-class-action-against-afl-20230315-p5csbl.html>.
[5] Ed Burke, ‘Up to 60 Former Players Launch Concussion Class Action Against AFL amid $25 Million Study’, Fox Footy (Online Article, 14 March 2023) <https://www.foxsports.com.au/afl/afl-2023-former-players-launch-class-action-max-rooke-25-million-study-hawthorn-coach-sam-mitchell-supports-afl-concussion-study-as-class-action-lodged/news-story/42482456bc03c333c9b289b05605d7d0>.
[6] ‘Table 4.4: Treatment of Sportspersons and Sporting Injuries’, Safe Work Australia (Web page <https://www.safeworkaustralia.gov.au/book/comparison-workers-compensation-arrangements-australia-and-new-zealand-2021-28th-edition/chapter-4-coverage-and-eligibility-benefits/table-44-treatment-sportspersons-and-sporting-injuries>.
[7] Eric Windholz, ‘Why Sports Stars Get Less Support Than Other injured Workers – and How We Can Fix It’, The Conversation (Online Article, 20 March 2023) <https://theconversation.com/why-sports-stars-get-less-support-than-other-injured-workers-and-how-we-can-fix-it-200702?utm_source=linkedin&utm_medium=bylinelinkedinbutton>.
[8] Jason Breslow, ‘NFL Concussion Settlement Wins Final Approval From Judge,’ Frontline (Online Article, 22 April 2015) <https://www.pbs.org/wgbh/frontline/article/nfl-concussion-settlement-wins-final-approval-from-judge/>.
[9] Michael Gleeson, ‘AFL Pushed To Establish $2 Billion Concussion Compo Scheme’, The Age (Online Article, 17 February 2021) <https://www.theage.com.au/sport/afl/afl-pushed-to-establish-2-billion-concussion-compo-scheme-20210217-p573c1.html>.
[10]Stuart v Kirkland Veenstra (2009) 237 CLR 215, [127].
[11] Ken Belson, ‘N.F.L. Agrees to Settle Concussion Suit for $765 Million’, The New York Times (Online Article, 29 August 2013) <https://www.nytimes.com/2013/08/30/sports/football/judge-announces-settlement-in-nfl-concussion-suit.html>.
[12] Ibid.
[13] John Orchard and Hugh Seward, ‘AFL Injury Report 2003’, The AFL Injury Report (Report, 2 June 2004) 14 <https://www.researchgate.net/publication/239588907_AFL_injury_report_2002/link/00b4952d63407af108000000/download>.
[14] Alan Pearce, ‘The Potentially Long-Lasting Effects of Concussion’, NewsGP (Online Article, 21 May 2019) <https://www1.racgp.org.au/newsgp/clinical/the-long-lasting-effects-of-concussion>.
[15] John Orchard, Hugh Seward and Jessica Orchard, ‘2021 AFL Injury Report’, The AFL Injury Report (Report, 6 March 2013) 14 <https://s.afl.com.au/staticfile/AFL%20Tenant/AFL/Media%20Releases/AFLInjuryReport2012.pdf>.
[16] Jack Mahony, ‘’Left Out in the Cold’: Lawyer Behind AFL Class Action Says Players Seeking $2 Million in Compensation Each Over Concussion-Related Injuries ‘Need Help’’, Sky News (Online Article, 15 March 2023) <https://www.skynews.com.au/australia-news/sport/left-out-in-the-cold-lawyer-behind-afl-class-action-says-players-seeking-2-million-in-compensation-each-over-concussionrelated-injuries-need-help/news-story/b553f076ba9f1dc884af4ae1db6eb358>.
[17] Ibid.
[18] Mayo Clinic, ‘Concussion’, Disease and Conditions (Web Page, 17 February 2022) <https://www.mayoclinic.org/diseases-conditions/concussion/symptoms-causes/syc-20355594#:~:text=Common%20symptoms%20after%20a%20concussive,Headache>.
[19] Rogers v Whitaker (1992) 175 CLR 479, [16].
[20] ‘What is a Duty to Warn and Informed Consent?’, Garling & Co (Online Article, 4 March 2022) <https://www.garlingandco.com.au/blog/what-is-a-duty-to-warn-informed-consent/>.
[21] Wrongs Act 1958 (Vic) s 50.
[22] ‘Chronic Traumatic Encephalopathy’, NHS (Web Page) <https://www.nhs.uk/conditions/chronic-traumatic-encephalopathy/#:~:text=Chronic%20traumatic%20encephalopathy%20(CTE)%20is,support%20can%20manage%20the%20symptoms>.
[23] David Thorpe, Antonio Buti, Chris Davies and Paul Johnson, Sports Law (Oxford University Press, 3rd ed, 2017), 277.
[24] Wrongs Act 1958 (Vic) s 59(1).
[25] ‘Tribunal 2023’, Australian Football League (Guidelines) 2 <https://resources.afl.com.au/afl/document/2023/03/01/9c9bdc05-2377-4ffb-a8a0-885835edcaf1/2023-AFL-Tribunal-Guidelines.pdf>.
[26] Ibid, 12.
[27] Peter Ryan, ‘AFL Closes the ‘Cripps Loophole’; Bulldog Gardner to Miss Round One; Tension Over MCG Seats Deal’, The Age (Online Article, 28 February 2023) <https://www.theage.com.au/sport/afl/gardner-to-miss-round-one-hickey-injured-at-training-20230228-p5cob0.html>.
[28] ‘Tribunal 2023’, Australian Football League (Guidelines) 4 <https://resources.afl.com.au/afl/document/2023/03/01/9c9bdc05-2377-4ffb-a8a0-885835edcaf1/2023-AFL-Tribunal-Guidelines.pdf>.
[29] Tom Maddocks, ‘Kysaiah Pickett’s Bump on Bailey Smith the Death Knell for Bump in AFL, Melbourne Coach Simon Goodwin Says’, ABC (Online Article, 21 March 2023) <https://www.abc.net.au/news/2023-03-21/melbourne-demons-simon-goodwin-bump-dead-kysaiah-pickett/102123758>.
[30] David Zita, ‘Player Feedback on MCG Pitch ‘Varied’ After $1 Million Repair Job, AFLPA Says’, Fox Footy (Online Article, 20 March 2023) <https://www.foxsports.com.au/afl/afl-news-2023-mcg-turf-ed-sheeran-concert-players-slipping-over-injuries-latest/news-story/d05577de480fbcf74494a55aecc63e4e>.
[31] Digital Staff, ‘Marvel Stadium’s Maligned Surface Joins MCG’s Race for Round 1 After Harry Styles Concerts’, 7 News (Online Article, 11 March 2023) <https://7news.com.au/sport/afl/marvel-stadiums-maligned-surface-joins-mcgs-race-for-round-1-after-harry-styles-concerts-c-9991676>.
[32] Ben Waterworth, ‘Startling Images Emerge as MCG Scrambles to Pull Off $1m Makeover Before AFL Blockbuster’, Fox Footy(Online Article, 9 March 2023) < https://www.foxsports.com.au/afl/afl-news-2023-mcg-turf-makeover-after-ed-sheeran-concerts-images-grass-to-be-ready-in-time-for-round-1/news-story/e834235f5fc5891bf36926b849bed12c>.
[33] David Zita, ‘Player Feedback on MCG Pitch ‘Varied’ After $1 Million Repair Job, AFLPA Says’, Fox Footy (Online Article, 20 March 2023) <https://www.foxsports.com.au/afl/afl-news-2023-mcg-turf-ed-sheeran-concert-players-slipping-over-injuries-latest/news-story/d05577de480fbcf74494a55aecc63e4e>.
[34] AAP, ‘Blues Star Reveals Concerns Over Slippery MCG Turf’, ESPN (Online Article, 19 March 2023) <https://www.espn.ph/afl/story/_/id/35893349/afl-carlton-blues-star-sam-docherty-reveals-concerns-slippery-mcg-turf>.