Just when you thought the Australian Football League's (AFL) management of concussion could not get murkier, news arrived yesterday the Geelong Football Club required a player with a history of concussions to sign a letter waiving their legal rights with respect to any future brain trauma.
Author
- Eric Windholz
Associate Professor, Faculty of Law, Monash University
It was reported the Cats had a secret arrangement with a player who signed the agreement in a bid to clear the club and its medical staff from future court action. Late yesterday, the Cats acknowledged in a public statement the waiver did actually exist.
The AFL said it was a "complex and unique case" but said no punishment was forthcoming, despite insisting it had not approved the agreement.
It is the latest development surrounding concussion and the AFL and one that forecasts more uncertainty amid major rule changes , insurance concerns and an impending class action from former players.
The source of the problem
Professional sportspeople are the only workers in Australia who are systematically excluded from the workers' compensation system .
The exclusion date backs to the 1970s when sports in Australia first began to be professionalised. Largely amateur leagues and clubs, fearful of the impact insurance premiums might have on their viability, successfully lobbied for an exemption.
In the absence of workers' compensation, a number of alternatives have been pursued.
One of these has been private insurance. AFL players traditionally have had Total and Permanent Disablement (TPD) insurance cover as part of the AFL Players Association (AFLPA) superannuation fund.
However, in March this year, Zurich Australia announced it was removing concussion and head trauma coverage from its policies. The fund's trustee, AMP, said the decision was driven by recent high claim volumes.
This means no insurer is currently willing to provide AFL players with coverage for head trauma.
In the absence of private insurance, the AFL and AFLPA have increased their support to affected players. They operate an injury and support fund from which players can receive up to $500,000 for a career-ending injury, and up to $600,000 for severe injuries that reduce their future earning capacity by 40%.
As good as all this sounds, however, payouts from these funds are discretionary, their continued existence contingent and their adequacy unknown.
The medical retirement option
Another response has been to medically retire players thought to be susceptible to future brain injury. Several players recently have met this fate including West Coast's Jeremy McGovern, Western Bulldogs' Aiden O'Driscoll, Melbourne's Angus Brayshaw and Collingwood's Nathan Murphy.
The irony here is, some of these players found themselves unable to access the insurance and support funds that were designed to support them. Brayshaw was denied an insurance payout as his disability was not considered total and permanent.
And while O'Driscoll is reported to have received a $150,000 football career-ending payout , he was deemed ineligible to receive a severe injury benefit.
No wonder many players have resorted to litigation. The most prominent is the class action launched in 2023 by former Geelong defender Max Rooke. That litigation now involves more than 100 players, the AFL, 11 clubs and their doctors.
While success remains speculative, the spectre of liability in the hundreds of millions of dollars is real.
And it is this spectre that presumably led Geelong to seek to limit their liability by asking a player to sign that secret waiver.
So, what to make of the waiver?
In some ways, the waiver is an understandable response to the threat of litigation.
However, it was received with widespread condemnation .
Geelong quickly announced it would no longer seek to rely on the waiver .
The AFL and AFLPA disavowed knowledge of it, stating arrangements that seek to solely place the risk on players will not approved .
That this should be the case is correct. The players are the least equipped of all the actors in this saga to bear the financial and health risks of playing this at-times dangerous sport. They also are the most vulnerable - young and willing to risk their future in pursuit of their dream.
Nor should anything be put in place that suggests anyone other than the AFL and its clubs bear primary responsibility for the health and safety of their workers.
The league said it would not punish Geelong .
However, all of this leaves us no closer to solving the concussion compensation conundrum.
A better way: fix the problem at its source
In a world in which sport has been corporatised and commercialised, there is little justification for professional sportspeople's continued exclusion from workers' compensation.
This was recognised by a 2023 Senate inquiry into concussions and head trauma in sport that called on state and territory governments to work with professional sports organisations to explore how these sportspeople might be returned to their workers' compensation schemes.
Recent events highlight the need for this work to start now.
Eric Windholz does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
