The knock out blow: how Australia is tackling concussion & neck injuries

Published 13 May 2015 By: Paul Horvath, Emily Lupo

ANZ Stadium

Professional sport, like any business, has a duty to manage risks within the business.  Unlike other businesses, the likelihood of physical injury in professional sport is significantly increased.1 A failure by sport’s governing bodies to manage these risks appropriately can have an adverse effect on the sport, and may lead to liability for a breach of the duty of care the sport owes to its athletes.

Some of the most serious injuries in professional sport in Australia, namely concussive injuries2, may lead to depression and brain injury,3 and serious neck injuries, resulting in paraplegia. What is the duty of care owed by the rule makers in sport to ensure that they eliminate wherever reasonably possible any known risk of serious injury?

The experience in the U.S. National Football League (NFL) regarding concussive injuries, and the recent class actions which settled for sums approaching US$1 billion provide lessons for Australia;4 when it comes to risk of serious injury, players cannot be left unaware, uneducated or unprotected by the sport’s governing body. Players have a right to know of risks of serious injury5, and governing bodies in Australia (such as the Australian Football League (AFL), National Rugby League (NRL), and the Australian Rugby Union (ARU)) have a duty to advise the athletes of the risks, and to take positive steps to remove unreasonable risks, or be liable to athletes for resultant injuries.6

 

Recent examples of serious injuries

Historically, it has not been uncommon for athletes competing in contact sports such as Rugby League and Union to sustain serious neck and spinal injuries as a result of competing in the sport. 

  1. The NRL

    The most recent of these cases was that of Alex McKinnon, a 22 year old former professional rugby league player for the Newcastle Knights.7 McKinnon’s career was cut short in 2014 after a tackle in a game against Melbourne Storm caused him to sustain two broken vertebrae in his back. McKinnon was tackled by three opposition players. One of those players, was found guilty of performing a dangerous throw in breach of the Laws of the Game whilst the other two players were not charged.8

    Similarly, West Tigers rugby league football player Jarrod McCracken suffered career ending spinal injuries after a poorly executed tackle in a game against Melbourne Storm in May 2000.9 The incident occurred after two Melbourne Storm players aggressively spear tackled McCracken to the ground.10 This tackle was also found to be a dangerous throw in breach of the Laws of the Game. During the NRL disciplinary hearing one player admitted that when he tackled McCracken he intended to put him hard on the ground and cause him minor injury.

    McCracken subsequently brought negligence proceedings against the two players and Melbourne Storm.11 During that case, the court heard distressing evidence from a former player on the ordinary types of coaching instructions given to players:

    “Players at elite levels of Rugby League… are personally taught and encouraged by their coaches and trainers to make significant impact at the initial collision stage of a tackle. They are also taught… to put [the opposition player] on the ground forcibly to cause hard bruising and impact with the ground which will hurt and discourage the attacker…” 12

    In that case the court found that the actions of the Melbourne Storm players were unreasonably dangerous and went beyond what was taught. Melbourne Storm was found vicariously liable for their conduct and ordered to pay compensation. The NRL, as the sport’s governing body, has a clear duty to seek to eliminate the spear tackle given its serious injury risks, and has acted to do so.

  2. The AFL

    In addition to a number of unfortunate cases involving neck and spinal injuries, the issue of the long-term effects of repetitive head injuries and concussion has been a topic of considerable discussion. In June 2014, Brisbane Lions star player, Jonathon Brown, announced his retirement from playing AFL.13 The announcement came only a week after he sustained a heavy concussion whist playing in a game against Greater Western Sydney. Unfortunately it was not the first serious head injury that he had endured in his career. Brown received severe facial injuries in 2011 and 2012 after serious head knocks. 

    Brown told the media “it’s become evident after my concussion… that I don't respond or bounce back like I used to from those hits… I had pretty strong medical advice this week that it was in my best interest to stop [playing AFL].”14

    Brown is not the only AFL football player to feel the effects of repeated head injury.15 Former Richmond Tigers player Matthew Richardson has also recently spoken publicly about his concerns as to the effect that repeated head impact may have had on his long-term health. Richardson retired from AFL in 2009 after a 282 game career.16 

    Richardson suffered a number of concussions as well as broken bones in his face after receiving “pretty heavy knocks to the head” during AFL football games. He has reported that he has experienced both long term and short-term memory loss, recently admitting to having a 20 minute phone call with a club administrator shortly after a football game, then having no memory of the call the next day.17 

    At least two other former AFL Football players commenced legal proceedings for compensation for injuries associated with career ending concussion. These matters have settled out of court, with the former athletes rumoured to have settled for substantial sums of compensation.18 

  3. The U.S. NFL

    In addition to individual compensation claims, there have been a number of class actions brought by players for injuries sustained whilst participating in their sport.19 The NFL class action that has recently been approved by U.S. District Judge Anita Brody could cost the NFL $1 billion over 65 years.20 One of the allegations against the NFL centred on the sport’s key administrators having knowledge of the risk of serious head and concussive injury and not taking preventative action, nor warning or educating participants of this. College (amateur) footballers in the US also recently settled a concussion class action for US$70 million.21 

  4. There is an even bigger threat to the game given the consecutive retirements of Chris Borland22 and Jake Locker, like the retirements in the AFL (see above).23 Young NFL players are hanging up their cleats due to increasing concern over injuries, specifically brain trauma, despite medical advances. Borland, who took a shot to the head during training camp last year, began to seriously question the sport and the risk of a head injury in pro football. For him, the risks he would have to take on by “banging his head” were too great.24 It is clear that even the risk of injury is deterring up and coming elite level players.

 

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Author

Paul Horvath

Paul Horvath

Paul is the Principal of SportsLawyer, Melbourne. He has practised law for over 18 years, in criminal law, commercial law and sports law. In 2008, Paul completed his Masters of Laws degree (LLM), with an emphasis on sports law. 

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Emily Lupo

Emily Lupo

Emily is an employment and industrial lawyer, practising in Maurice Blackburn’s Melbourne office. Emily acts for and advises clients in a variety of employment matters including employment contracts, adverse action, unfair dismissal, redundancy, disciplinary investigations and workplace bullying.