AFL Concussion class action looms

The Australian Football League may be hit with a class action on behalf of former players who have suffered long term symptoms from knocks to the head while playing.

A Melbourne law firm has registered its intent to bring class action against the AFL in the Supreme Court of Victoria. This will be the first of its kind in Australia –following in the footsteps of the USA, where more than 4,500 football players sued the NFL before reaching a US$765 million settlement. What happened in the NFL? The players alleged that the NFL knew about the long-term health risks associated with repeated blows to the head and actively concealed and ignored this information. In short, the NFL was negligent in failing to protect its players with the direct result that players suffered long term brain damage. What has happened here in Australia? After former AFL players Shane Tuck and Danny Frawley were diagnosed with Chronic Traumatic Encephalopathy (CTE) (post-mortem), the issue of brain injury has become a big one for the AFL. CTE is a neurodegenerative disease linked to repeated blows to the head. CTE is not yet fully understood by doctors (or lawyers!) however it’s understood it may be linked to depression and cognitive impairment. In July 2022, former Richmond Tigers player Ty Zantuck won a court bid to sue Richmond for compensation over debilitating back and brain injuries. Zantuck is alleging that Richmond breached its duty of care to properly monitor and treat his concussion symptoms. In 2005, in a case against the Melbourne Storm Rugby League Football Club, it was held that a player who fell headfirst to the ground during a match could only directly sue the players that caused the injury and not the National Rugby League (NRL). Finally, back in 2000, two players unsuccessfully argued that the International Rugby Football Board (IFRB) owed them a duty of care to monitor rules of the game and to change them to reduce “unnecessary risk” to player. The High Court rejected this, and essentially said that the risk of playing rugby was obvious. Who is at fault for an athlete’s injury? The pertinent question when it comes to the liability of a sports federation is, who has a duty of care? In the 2000 High Court decision, it was held that the IRFB had no control over how the rules would be applied on any particular field, as it was a decision for local sporting associations. That was 23 years ago; since then medical research has developed significantly and all football codes now have “return to play” policies, which govern how quickly a player can return to the field after a concussion. The rules of the game and tribunal guidelines are also adapted to keep up with medical research. The questions which will be asked in any class action against the AFL are: does the AFL have a duty of care to its players, has the AFL breached that duty, and to what extent is the Emma Johnsen Senior Associate +61 8216 3022 Email Emma Raymond Makko Lawyer +61 8216 3054 Email Ray Marque Lawyers Pty Ltd Level 4, 343 George St Sydney NSW 2000 Ph : +61 2 8216 3000 Fax: +61 2 8216 3001 Visit Website 2/28/23, 6:01 PM Email - Lexology Submissions - Outlook https://outlook.office.com/mail/library@lexology.com/AAMkAGJkMjc1NzE0LWNhMzAtNDJmMi1hMDA5LTg2YWRlZTQyZjI1MQAuAAAAAABUh8… 2/2 harm sustained by a player from concussive injuries reasonably foreseeable? Conversely, what role does voluntary assumption of risk play when it comes to a degenerative brain disease? Questions? Give us a call.