How Australia's top contact sports manage concussionCassandra Heilbronn
In 1994, concussion was (in)famously referred to as a journalist issue by then National Football League (NFL) Commissioner Paul Tagliabue, who said
"… concussions, I think is one of these pack journalism issues, frankly. There is no increase in concussions, the number is relatively small … the problem is a journalist issue".
A class action for lawsuit brought by at least 5,000 NFL retired players was finalised in April 2015, and despite the NFL denying any linkage between the risks associated with football and brain trauma, the players were successful in securing a settlement which is reported to have cost the NFL at least $1 billion over a 65-year period. The players' case relying on what they said was a failure to put adequate protocols in place to protect players.
In Australia, if you were to mention concussion to a group of parents at a Saturday morning football match even ten years ago, and there would have been little, if any, reaction. Fast forward to 2017, and concussion is not only a feature of discussion at a grassroots level, but is now a focus point of player welfare elite level. The turning point for the concussion discussion was the Consensus Statement on Concussion in Sport, which was presented at the 4th International Conference on Concussion in Sport that was held in Zurich in November 2012. While that paper was an update of past papers presented in 2001 and 2008, different sporting codes in Australia appear to have used the Consensus Statement as a catalyst for implementing policies and concussion management advice. The Sports Concussion Assessment Tool also developed by the authors of the Consensus Statement has been endorsed by most, if not, all top codes of sport in Australia with recommended use for all playing levels.
Australia's 2017 football season is about to launch, and while many codes have not made substantial changes to policies, it is important that all involved in sports, whether it be coaches, players, parents or umpires, have an understanding of the basics of concussion management and what steps are to be taken before a return to play to their chosen sport.
To assist, this article offers an overview of concussion management in each major sporting code in Australia. It is important to recognise that the term "concussion" is largely an historical term which, as the Consensus Statement outlines, represents "low-velocity injuries that cause brain “shaking” resulting in clinical symptoms and that are not necessarily related to a pathological injury". In the United States, the term mild traumatic brain injury (mTBI) is used interchangeably with concussion. Elsewhere, concussion is a subset of TBI. Australia is well supported in concussion management by Governments and medical based organisations, with a summary of useful resources referred to at the conclusion.
Why concussion management matters - duty of care issue
Before we examine each sport in turn, it is a useful starting point to understand the liability risks that clubs face if they fail to properly manage concussion.
Players are a Club's main asset and steps must be taken to ensure their welfare. If a Club fails to do so, it exposes itself to the risk of claims based on breach of a duty of care. In Australia, the duty of care required of a Club, at an elite level, will have a higher threshold given the existence of an employment relationship with a player. As part of the Club's duty of care, it must take all reasonable steps to safeguard a player from all reasonably foreseeable risks of injury. All medical staff will too owe a duty of care to a player by reason of the patient relationship. Clubs who engage players on a semi-professional basis, and even Clubs where players pay to play (e.g. weekend football), still owe a duty of care to the players; it will just be a question of the threshold of care required.
Given the pre-court processes required for personal injury claims in Australia, the full extent of any claims based on failure to appropriately manage concussion in not known. This process, by way of example in Queensland, includes the giving of notice of a claim for damages for personal injury. The parties will address issues such as compliance of the notice, exchange disclosure lists, and commence investigations so that a respondent can provide a response on liability. Both parties will also be working towards finalising quantum investigations which will include assessing lost income and obtaining expert evidence on the whole person impairment suffered as a result of the injury. The parties participate in a form of alternative dispute resolution (referred to as a compulsory conference), where they attempt to resolve the claim on a without prejudice basis. If the claim is resolved, the terms are drawn down to a Deed of Settlement, or the like, which will bind the parties contractually to the terms of the settlement and may include express releases, indemnities and confidentiality clauses. Court proceedings will only be filed if the matter is not resolved.
The sports liability insurance industry will likely see a commencement of, and then increase in, claims over the coming years as the impacts and effects of failure to appropriately treat concussion become apparent. To assist Clubs in minimising the risk of claims in the future, the key features of the concussion management procedures in each of Australia's top sporting codes is provided. Clubs should use this information as a basis for reviewing their individual policies, and making changes as necessary. This article is not intended to be a full summary of each codes concussion guidelines and individuals should still read their codes documents in detail to ensure compliance.
Australian Football League
The Australian Football League (AFL) has produced a number of documents to assist in concussion management and has done so for many years. It has been active in monitoring and researching concussion in AFL for 25 years, founded the AFL Research Board in 1999, and has funded projects on post-concussive outcomes after return to play. Consistent among all documentation is ensuring the welfare of the player in short and long term. The duty of care required to a player is highlighted and more importantly, it is emphasised that a trainer should not be influenced by the opinion of others who are encouraging an earlier return to play.
The overarching principle for the AFL is "If in doubt, sit them out", with the AFL providing one of the clearest and most practical suite of documents for managing concussion. The signs and symptoms are clearly outlined. If a player is concussed, or is suspected of having a concussion, they are to be immediately removed from plan and medically assessed. Despite assessment, a player is not able to return to play in the same game or practice, and a medical clearance is required before returning to school, training or playing.
In 2013, the AFL introduced The Management of Concussion in Australian Football for Children aged 5 to 17 years, which adopts the same practices required for elite players, and imposes an additional requirement that a concussed child player is not allowed to return to play until they have successfully returning to school and learning without worsening of symptoms. In addition to this, the AFL provides Concussion Recognition & Management Guidelines for Players, and separately for Parents.
National Rugby League
The documentation provided by the National Rugby League (NRL) is not as extensive as that provided by the AFL, however is still based on the Consensus Statement and provides an added resource of the Pocket Concussion Recognition Tool. It is unknown when the Management of Concussion in Rugby League Guidelines were first implemented, however they were based on the 2012 Zurich Conference and research conducted in the AFL and NRL over the years. The NRL Guidelines were updated in April 2015 to provide for greater clarity as to the circumstances when a player must be removed from the field and kept off. If a player exhibits any of the listed signs of concussion they are not to return to the field of play. The changes were said to have been incorporated to reduce pressure on Club doctors and were developed by the NRL's Chief Medical Officer.
Under the NRL Guidelines, players with concussion or suspected concussion must be removed from the field and are to have urgent medical assessment. The NRL does not have any clear differences between youth and senior management, with language referring to "all players". Consistent with the AFL's position, specific reference to youth players is in the language about returning to school and play, and provides that a player is not to return to school or play until they have had formal medical clearance. The Guidelines make it clear that returning to learning and school should take precedence over return to sport, and children should not return to school until cleared by a medical practitioner.
The NRL has taken a strong stance on concussion management and will fine Clubs for non-compliances, with the Parramatta Eels fined $20,000 for its handling of three concussion incidents in 2015.
Football Federation Australia (soccer)
The Football Federation Australia (FFA) Concussion Guidelines were implemented in 2013, and read similarly to that of AFL and NRL documents in terms of background information and relying on the Consensus Statement. However, the language of the Guidelines is not as strong as the AFL and NRL. For example, if an athlete has suspected concussion they should be immediately removed from play (as opposed to must be), and there should be no return to play on the day of a concussive injury. Further, the Guidelines do not regulate any specific steps that are required for youth players, and local Clubs should refer to their State associations for added guidance.
The language in the FFA Guidelines as opposed to the stronger language in the NRL Guidelines likely comes down to the nature of the game, and while concussion should be taken seriously in any sport, the likelihood and severity of a concussion in football may be less than it would be in NRL. The FFA does differ from the AFL and NRL in providing more of a structured return to play program, which forms part of the FFA Guidelines. The Graduated Return to Play Program provides for a minimum of six days before the player can play a competitive game.
Australian Rugby Union
Management of concussion by the Australian Rugby Union (ARU) through its Concussion Guidance (Rugby Public – Standard Care Pathway) contains reference to the World Rugby Concussion Guidance from August 2015, likely in an attempt to have consistent measures internationally. Consistent with the NRL, and due to the similar nature of play, any player with signs of symptoms of a potential head injury or concussion must be removed from the field of play immediately and must not take any further part that day. If a neck injury is suspected, the player is only to be removed by health care providers with spinal care training.
In terms of returning to play, a medical practitioner experienced in concussions can apply the return to field protocols under the ARU Pathway. To ensure this, the protocols are only accessible under the Advanced Care Pathway and only made available for professional players. The protocols do not apply to domestic Under 20 tournaments or representative rugby for those under 18 years. The ARU Pathway also provides a Head Injury Assessment process, which again only applies to the elite levels of the game.
Management of youth concussion is addressed with the requirement that they are treated more conservatively than adults. The ARU Pathway defers to the World Rugby Regulation 10 for minimum rest times and recovery, which is extended for youth (an additional week of relative physical rest). The return to contact training is also extended for youth, who cannot return to contract training for at least 18 days after all symptoms and signs have disappeared, as opposed 11 days for adults. Return to play for youth is allowed 19 days after all symptoms and signs have disappeared, as opposed to 12 days for adults.
Super Rugby also imposes fines on Clubs for non-compliance with concussion management principles.
Cricket Australia's Concussion and Head Trauma Policy forms part of the 2016-2017 Playing Handbook and is the most extensive document out of all codes mentioned. It mandates helmets for all players, regardless of age and ability, and recommended use of neck guards. Following a significant incident, helmets should be replaced, and if replacement is required, the helmet is to be returned to Cricket Australia (CA) for examination.
Under the Policy if a participant receives a blow to the head or neck, the highest qualified medical personnel is to attend to apply the Concussion Protocol. If directed by the medical personnel, the participant is to leave the field. This is where CA differs from the other codes as there is an element of discretion. The Policy also allows for a Concussion Substitute for certain CA sanctioned competitions. The final determination of a return to play for a participant who has been diagnosed with a concussion is to be made by a qualified medical officer. Consistent with the sports addressed above, participants, if concussed, are not to return to play on the same day. The return to play is slightly different from the other codes, in that a staged return to physical activity cannot occur until the participant has been asymptomatic for at least 24 hours.
The Concussion Protocol outlined by CA is the most detailed (yet very easy to follow) of all of the codes. CA has likely taken the step to ensure all aspects are considered and addressed following the tragedy of the death of Phillip Hughes. There has been no reported fines issued as a result of a failure to comply with concussion management procedures.
Clearly concussion is no longer a “journalist issue”, and Australia's sporting codes have been able to take advantage of the extensive research (and subsequent claims) from overseas. Each code, in a different way, has committed itself to ensuring player welfare through implementation of relevant policies and procedures and participation in research. These policies will not prevent any claims based on past conduct, as was seen with the NFL case, however they will go a long way to ensuring player welfare in management of potential brain injuries, thereby reducing the risk of claims. One only has to read the response to the NFL case, and also the National Hockey League case, which is reportedly ongoing, to see how important this issue is not only to elite players, but to the community. The failure to respond to the dangers of concussion management and implement practices, particularly at a youth level, may see parents move away from signing their children to play in, what could be referred to as, high risk sports. This would have a detrimental effect in years to come with the likely pool of candidates available to play at an elite level reducing.
Associations play a key role in governing concussion management implementation. Those at the elite level face significant fines for non-compliance. However, commentary on what disciplinary action semi-professional and grassroot level clubs face if they fail to appropriately implement concussion management procedures is limited. The regulation of concussion management below an elite level would be considerably harder, however that is where the effects of concussion start. Social responsibility, and the possibility of litigation, will hopefully play a determining factor with implementation (and compliance).
It is likely that we will not know the true impact or effect concussion has had in sport in Australia for at least for another generation. However, by now implementing appropriate procedures and ensuring that the duty of care to players is satisfied, long term injury from concussion and the risk of claims in the future could be minimised. It will be interesting to see what developments happen in terms of sports liability claims based on failure to provide concussion management. There is established case authority to show that Clubs do have a level of responsibility in player welfare and management, and should be taking all reasonable steps to protect their assets. The threat of litigation is a real possibility, and while the United States has a different method for assessing damages, costs associated with any type of acquired brain injury are significant.
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- Tags: Athlete Welfare | Australia | Concussion | Consensus Statement on Concussion in Sport | Cricket | Employment Law | Football | Football Federation Australia | Governance | National Rugby League (NRL) | Player Safety | Regulation | Rugby
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About the Author
Cassandra is a Senior Associate in the Insurance and Corporate Risk practice group at MinterEllison. She has over ten years’ experience in insurance claims and corporate risk advisory work, and her sports practice includes acting for Australian and international sporting Federations, Clubs and corporations in matters involving commercial disputes, player disputes, sponsorship and image rights issues, and general risk management.