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The Future Of Footy And The Merits Of The Concussion Class Actions In The AFL

Aussie Rules
Thursday, 27 April 2023 By Jack Anderson

For fans of contact sports, the point of this article is direct, simple but stark: some of your childhood sporting heroes cannot now remember their own children’s names.

The contact sport of focus in this piece is Australian rules football (AFL). A number of former AFL players now say that the reason for their current chronic neurological trauma, which is severely impacting their physical, psychological, professional and familial life – the cause – is playing football. Individually, or as part of class actions, former players are seeking compensation in negligence against treating doctors, clubs and/or the governing body or league in question – the AFL. The fundamental argument made by the players is that either the concussion protocols of the time were not followed or the protocols (or whatever form the medical guidelines of the time took) were not fit for purpose.1

Similar to the UK – where a class action2 by former professional rugby players (recently and separately extended to include amateur players3) is ongoing; the Australian proceedings are taking place against the backdrop of a parliamentary inquiry into concussion in sport.4

The claims taken by the former AFL players are also similar in substance to those taken against, and often settled by, sports organisations elsewhere, most notably the NFL.5 Unlike the US cases - where a key, initial aspect of claims against the NFL was that it knew about the risks of head trauma in American football but concealed it from the players - there is no allegation of concealment against the AFL, though, as will be shown, questions have been raised about aspects of the medical research upon which the AFL has relied in developing its concussion guidelines.6

This article focuses on outlining the legal aspects of the current array of actions being taken against the AFL. It assesses the substance of such claims (the purview of which is negligence) and the chances of success. Finally, this piece asks whether litigation is the optimal means of resolving the medical, regulatory, and legal concerns of not only the players involved, but with how the game is played; indeed, the very future of contact sport itself.7

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Written by

Jack Anderson

Jack Anderson

Jack Anderson is Special Counsel (Integrity Regulation) at Racing Victoria. Formerly Professor and Director of Sports Law Studies at the University of Melbourne, he has published extensively on sports law, most recently with D Thorpe, A Buti, P Jonson & J Anderson, Sports Law (4th ed, OUP, 2022).

He is a member of World Athletics’ Disciplinary Tribunal, the integrity unit of the International Hockey Federation, and the International Tennis Federation’s Ethics Commission. Jack is an arbitrator on Football Australia’s National Dispute Resolution Chamber, the National Sports Tribunal of Australia and Sport Resolutions UK.

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