High-stakes litigation in the USA over head injuries caused
during professional football matches has serious implications for
Australia. Tim Fuller explains why.
With the kick-off to season 2014 around the corner, the National
Rugby League (NRL) has moved to protect its players further from
head trauma by bringing in new guidelines for concussed players.
This follows the ban imposed last season on shoulder charges after
a series of sickening collisions between players.
From a legal perspective, the move is a positive one as
concussion management policies of the NRL are being closely
examined following litigation in the United States against the
National Football League (NFL).
Last year the NFL in the United States reached a US$765 million
settlement for the concussion litigation brought by more than 4,500
retired players. The former players sued the NFL for failing to
protect its players from the dangers and effects of
In explosive claims, the league was accused of negligence,
fraudulent concealment and conspiracy in their attempts to conceal
the dangers of concussion. In a recent ruling, the judge presiding
over the settlement rejected the settlement on the basis that there
may not be enough money to cover all potential costs.
Whilst it is likely that a revamped settlement will be reached,
the litigation in the US has major ramifications for the NRL in
Australia. It has long been established that sport-governing bodies
have a duty to protect their participants on the field.
The NFL litigation has highlighted the importance of educating
all personnel involved in contact sports about concussion injury
and the need to put in place safe and effective policies for
dealing with this sort of head trauma.
NRL slow to react on concussion
It is arguable that the NRL has been slow out of the blocks in
addressing the concerns of concussion-related injury amongst their
current and former players.
Several former high profile players have spoken publicly about
personal health issues that they believe are the result of head
trauma endured in the NRL.
Former North Queensland Cowboys player Shaun Valentine, who
suffered severe concussions throughout his career, has signed
documents that will result in his brain being donated to science
upon his death.
Whilst the recent policy and rule changes are positive
developments for the NRL, the code is still off the pace when it
comes to regulating violence.
It is hard to forget last year's brawl in the State of
Origin series between NSW skipper Paul Gallen and Queensland
forward Nate Myles. Gallen landed a series of blows on Myles and
later Myles was quoted as saying 'how good it was and everyone
wants to see it'.
Violence in Origin has historically been afforded a greater
degree of leniency – almost a 'what happens on the field,
stays on the field' approach.
In view of concussive injury, it is suggested that the NRL must
act to bring tougher sanctions for on-field misconduct.
Players accept a degree of risk when they play a contact sport
like rugby league. The 'inherent risk' that the High Court
referred to in Rootes v Shelton equates to players in the
NRL getting tackled – and tackled hard!
Players assume the risk associated with crunching tackles and
big body shots in what is an inherently dangerous contact
However, the players also expect the lawmakers of the game to
implement rules and policies that protect them from illegal play
and unacceptable conduct.
The NFL action in the United States demonstrates that if a
sporting league fails to protect their players, they will be
vulnerable to legal action. Fundamental to the claim in the NFL was
the assertion by the players that they relied on the NFL to protect
The NRL is not Robinson Crusoe: the AFL, ARU and others will be
closely monitoring their policies in relation to concussion and
considering the possible future implications of any collective
player action for their sport and organisations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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