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



    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 actionsbrought 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

    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.


    It is well accepted that sport has certain inherent risks that are accepted by the athletes who chose to participate in the game.25 Case authorities are clear that participants of sports are assumed to have “consented to the application of physical force in accordance with the rules of the game26. Further, “unintentional breaches of the rules are risks which participants are taken to accept by virtue of their participation.27

    However, in light of some of the recent serious injuries suffered by athletes participating in their chosen sport, it is important for sporting bodies to be mindful of the role that they play in ensuring that their sport is safe for its participants within acceptable limits.

    The leading Australian authority on the liability of governing bodies for injuries sustained by participants is Agar v Hyde.28 In that case, the High Court of Australia considered whether the International Rugby Football Board (IRFB) had a positive obligation to amend the rules of the game to reduce unnecessary risks of neck injury to player’s whist in the scrum. The case came after two amateur athletes were rendered quadriplegic after participating in poorly executed scrums.

    The High Court held that the IRFB did not owe a duty of care to the sport’s participants to amend the rules to prevent risk of neck and spinal injury. This was despite the fact that this type of injury was one that was known to have previously occurred, and to be a risk to athletes when playing in the scrum. Four justices of the High Court held that it would be ‘absurd’ to say that the IRFB owed a duty of care to each player who played under their laws.29 The IRFB had no control over the way the matches were played or how their laws were implemented by amateur clubs. Furthermore, each player chose to engage in the sport, it was the ‘individual’s free choice’ and for policy reasons, holding the IRFB liable for damages out of their control would deter participation in these organisational bodies.

    In fact, the IRFB had changed the rules of the game to prevent this type of injury after the two players had sustained the injuries, and before the cases went to hearing in order to minimise the risk of injury from an administrative level as much as they could. Central to the court’s decision in this matter was the fact that the injured player’s had been amateur athletes.

    Had the athletes been professional, the decision could have been different. In professional sport, an athlete loses his or her livelihood if injured in a career ending way. If an amateur athlete is similarly injured, he or she not necessarily prevented from earning an income in their daily employment. Further, in professional sport, with the substantial resources available to governing bodies for research and prevention, the imperative to eliminate risks is far greater than with amateur sports where administrators, referees, coaches and athletes are unpaid. A reduced opportunity to minimise injury risks might therefore be expected in amateur sports.

    However, notwithstanding the decision in Agar v Hyde, given the control that governing bodies have over the way in which the sport is played, it is important that measures are implemented in a top down approach, to prevent serious injury in sport at all levels.30

    To summarise the key legal points and considerations in Agar:

          • The Court noted that rugby was a dangerous game by nature, and one which the injured players took part in of their own free will.
          • While the rules of rugby did provide for actions such as rucking, mauling and scrummaging which could lead to injury, the IRFB was not in a position to control how these rules were applied in a particular game of rugby. The IRFB merely ‘influenced’ the manner in which rugby was played, the actual control of a particular match was managed by the rules of local rugby associations and referees.
          • Although the IRFB was in a position to determine and alter the rules of rugby, this position did not lend itself to a duty of care to each and every rugby player.

    The Agar decision, together with the similar decision in Peter Joseph Haylen v New South Wales Rugby Union Ltd,31 have still served to increase the level of responsibility placed upon local sporting bodies to ensure the risk of foreseeable injury is minimised. As such, organising bodies should take all steps to avoid the risk of unnecessary harm to players to avoid the possibility of becoming liable under a negligence claim, which is still possible following these two case authorities.



    The recent NFL and NCAA concussion experiences have crystallised, among other things, the flowing principles:

          • Athletes who return to the field of play and risk further trauma prior to fully recovering from a concussion are significantly more likely to receive permanent brain damage;
          • Frequent concussive injury can also cause brain injury leading to dementia;
          • Studies have found a link between repetitive head trauma in U.S. football and depression.32

    The principal message emanating from the U.S. is that all sports governing bodies need to maintain an acute awareness of the potential for head and neck injuries, and consider whether a change in the rules of their sports is necessary:

    “Sports governing bodies are in a far superior position to investigate and assess such matters…relating to the need to take reasonable safety measures… [based on] knowledge of [a sport’s] risks, and take precautionary measures, than individual participants.” 33

    The response in the U.S. under the NFL banner is that there must be proactive steps by the governing bodies to take preventative measures (such as rule modification) and active warning of willing participants of the risks associated with the game. This U.S. notion is supported by the McCracken case discussed above which also requires active discouragement of poor sporting behaviour, supporting the trend of increased responsibility of governing bodies. This does not necessarily translate to increased liability however, governing bodies should be wary that it is the next step should the Australian authorities mimic the U.S. trend. The legal obligation for rule changes seems greater on professional than amateur sports based on Australian case law,34 but the lessons are there for non-professional sports too and the rule makers in those sports would be wise to heed the warnings.



    The AFL is a good example of a sport taking a proactive approach to prevent and manage injury in sport and is a world leader in this area.35 The media often expresses their own and the public’sfrustration with changes to the rules of the sport and the laws of the game.36 Stop tinkering with the game – if it aint broke, don’t fix it, is a key theme. In fairness to the rule makers in the AFL, they are seeking to act on the medical information they have regarding risk areas in the sport byadjusting the rules to reduce unreasonable risk of injury.37 The AFL’s Rules are reviewed on an annual basis.

    Each year, the AFL gathers medical information about injuries and monitors patterns of injury.38 It has produced an injury report for the past 22 years, and that report first became publicly available in 1996.39 We have seen in recent times a move to change the rules of the sport to protect a player’s head. The AFL Match Review Panel and AFL Tribunal routinely applies more severe penalties40 if any collision takes place by one player causing contact with the head or neck of another player.41

    The AFL’s position regarding head and neck injuries is stated in its 2013 Injury Report produced by the AFL medical experts:

    “The AFL remains strongly committed to player welfare and has introduced several law and tribunal changes in recent years to reduce the risk of head and neck injury such as a reduced tolerance of head-high contact, stricter policing of dangerous tackles, and the introduction of rules to penalise a player who makes forceful contact to another player with his head over the ball.” 42

    Further, the AFL’s Medical Director, Dr Peter Harcourt notes:

    “The AFL’s strategy for managing concussion…is driven by player health and safety”, grounded in “scientific research and expert opinion information highlighting the concussion issue.”43

    The idea is that players must understand that head contact will be penalised at all times, thereby removing risks to player safety where possible. Nevertheless, we know that AFL players have suffered concussive injuries which have manifested themselves post career.44 However, the scientific link between concussion injuries in sport and chronic cognitive deficiency has not yet been conclusively established.45

    It can be argued that because AFL athletes are well paid professionals the physical risks that they take during the sporting contest are justified. In 2013, the average AFL player wage was $265,000 compared to the average Australian wage of $57,000.46 However this needs to be balanced with the fact that the length of a professional sporting career is short, and an athlete will invariably need to take physical risks and put their “body on the line”, to maintain their place in the team. Recently retired Sydney Swans player Jude Bolton“felt letting his teammates down by going off with concussion showed he was weak”.47 This type of thinking needs to be educated out of contact sport athletes.

    Accordingly, competition organisers and leagues have a duty to warn the athletes of the long term risks that may flow from the injuries, especially to head and neck, from engaging in risky play.48Moreover, they have a duty to remove the temptation from athletes to be reckless as the long term effects will be more serious than might be appreciated while in the grip of “white line fever”by moderating the rules of the game.49



    Dr Greg Hickey, an Executive of the AFL Doctor’s Association, says that in the AFL, “player welfare is paramount”. This philosophy translates to the AFL’s key pillars on concussion, namely, law and tribunal changes; concussion management guidelines based on international best practice; education and awareness on the issue at community level, and building knowledge by research and working with concussion experts.50

    This represents a good strategic plan for risk management by a sport’s governing body in concussion and neck injury. Rule makers and sports governing bodies would be wise to follow these processes, in order to maintain “player safety…and the image and reputation of the game, [and for the] preservation of the careers of star players who may be viewed as significant “assets” of the sport”.51 Adopting this approach will reduce the risk of legal liability, and the rejection of the claims by the injured rugby players in Agar v Hyde may in future be decided differently, especially in the context of professional sport.


    1.   T Fitzgerald, ‘Today’s coaches and trainers are promoting safety, strength, and conditioning to protect players from disabling injuries’, Health Day, Last viewed on 10 May 2014, http://consumer.healthday.com/encyclopedia/work-and-health-41/occupational-health-news-507/professional-athletes-648171.html
    2.   N Rushworth, Concussion In Sport, Brain Injury Australia, October 2012, last viewed on 8 May 2015,http://www.braininjuryaustralia.org.au/docs/CONCUSSIONpolicypaperFINAL.pdf
    3.   Traumatic Brain Injury: Hope Through Research,  NIH, last viewed on 8 May 2015,http://www.ninds.nih.gov/disorders/tbi/detail_tbi.htm
    4.   J Wolohan, ‘Sports governing bodies and player welfare: examining the proposed NFL and NCAA concussion settlements’, LawInSport, 4 August 2014, last viewed on 8 May 2015, http://www.lawinsport.com/articles/regulation-a-governance/item/sports-governing-bodies-and-player-welfare-examining-the-proposed-nfl-and-ncaa-concussion-settlements
    5.   Ibid at 2
    6.   Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 and Rootes v Shelton (1967) 116 CLR 383.
    7.   ‘NRL: Alex McKinnon’s legacy will ease pain of horror injuries in future’, The Sydney Morning Herald, 18 July 2014, last viewed on 8 May 2015,http://www.smh.com.au/rugby-league/league-news/nrl-alex-mckinnons-legacy-will-ease-pain-of-horror-injuries-in-future-20140718-zuht5.html
    8.   Rugby League Rules of the Game, Australian Rugby League Commission, February 2013, last viewed on 8 May 2015,http://www.nrl.com/portals/nrl/RadEditor/Documents/NRL%20Rules%20book%202013FINAL.pdf
    9.   ‘McCracken wins fight for spear tackle damages’, The Sydney Morning Herald, 23 February 2005, last viewed on 8 May 2015,http://www.smh.com.au/news/League/McCracken-wins-fight-for-spear-tackle-damages/2005/02/22/1109046921058.html
    10.   A ‘spear tackle’ is a tackle in which a player is lifted into the air and then put head first onto the ground.
    11.   McCracken v Melbourne Storm Rugby League Football Club And 2 Ors [2005] NSWSC 107, Supreme Court of New South Wales, 17 March 2005, last viewed on 10 May 2015,http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2005/107.html
    12.   McCracken v Melbourne Storm Rugby League Football Club Limited and 2 Ors [2007] NSWCA 353, at 10
    13.   ABC, ‘Jonathan Brown retires from AFL after 256 games for Brisbane Lions’, 23 June 2014, last viewed on 8 May 2015, http://www.abc.net.au/news/2014-06-23/jonathan-brown-announces-retirement/5543446
    14.   ABC/AAP, ‘Jonathan Brown retires from AFL after 256 games for Brisbane Lions’, The ABC (online), 23 June 2014, last viewed on 8 May 2015,http://www.abc.net.au/news/2014-06-23/jonathan-brown-announces-retirement/5543446
    15.   ‘Former Tigers star Matthew Richardson fears footy may have left him with brain injuries’, The Herald Sun, 11 August 2014,http://www.heraldsun.com.au/news/victoria/former-tigers-star-matthew-richardson-fears-footy-may-have-left-him-with-brain-injuries/story-fni0fit3-1227019842592
    16.    B Cole, ‘Superstar Matthew Richardson shining in media career’, The Advocate, 10 October 2014, last viewed on 10 May 2015,http://www.theadvocate.com.au/story/2617425/superstar-matthew-richardson-shining-in-media-career/
    17.   Ibid at 15
    18.   Daniel Bell of Melbourne, Greg “Diesel” Williams of Carlton and Dean Kemp and Chad Rintoul of West Coast are rumoured to have settled their claims. See Samantha Lane, ‘Head Injury payouts Revealed, The Age (online), 1 April 2014, last viewed on 8 May 2015,  http://www.theage.com.au/afl/afl-news/head-injury-payouts-revealed-20110331-1cngm.html
    19.   Ibid at 4
    20.   J Solomon, Filing: NFL concussion settlement shows NCAA deal can’t be approved, CBSsports.com, 12 May 2015, last accessed 12 May 2015, http://www.cbssports.com/collegefootball/writer/jon-solomon/25182138/filing-nfl-concussion-settlement-shows-ncaa-deal-cant-be-approved
    21.   Arrington et al v National Collegiate Athletic Association, US District Court, Illinois
    22.   R McCormick, ‘ 24 year old NFL player retires over concussion risks’, The Verge, 17 March 2015, last viewed on 10 May 2015,http://www.theverge.com/2015/3/17/8229279/24-year-old-nfl-player-retires-over-concussion-risks
    23.   D Diamond, ‘Chris Borland’s retirement should terrify the NFL. Here’s why.’, Forbes,  17 March 2015, last viewed on 8 May 2015,http://www.forbes.com/sites/dandiamond/2015/03/17/why-chris-borlands-retirement-should-terrify-the-nfl/
    24.   ‘SF’s Borland quits over safety issues’, ESPN, 17 March 2015, last viewed on 10 May 2015, http://espn.go.com/espn/otl/story/_/id/12496480/san-francisco-49ers-linebacker-chris-borland-retires-head-injury-concerns
    25.   Hayden Opie, ‘The sport administrator’s charter: Agar v Hyde’ (2001) 9 Torts Law Journal 131, page 2
    26.   Agar v Hyde (2000) 173 ALR 665, 687; the case was also heard together with Agar v Worsley.
    27.   Ibid at 11, see page 5; See also Hayden Opie, ‘Referee Liability in Sport: Negligent Rule Enforcement and Smoldon v Whitworth’ (1997) 5 Torts Law Journal 17, n 2
    28. Agar v Hyde (2000) 173 ALR 665, High Court of Australia, 3 August 2000, last viewed on 10 May 2015, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2000/41.html?stem=0&synonyms=0&query=agar%20hyde
    29.   Agar v Hyde (2000) 173 ALR 665 at [67].
    30.   See for example, how the AFL monitors the incidence of similar types of injury. A McNicol, ‘Recurring CL injuries a concern for AFL doctors’, AFL, 6 May 2014, last viewed on 10 May 2015, http://www.afl.com.au/news/2014-05-06/repeat-acl-injuries-a-worry
    31.   Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114
    32.   Didehbani N, Munro Cullum C, Mansinghani S, Conover H, Hart J. Depressive symptoms and concussions in aging retired NFL players. Archives of Clinical Neuropsychology. 2013; 28(5):418–424; Kerr ZY, Marshall SW, Guskiewicz KM. Reliability of concussion history in former professional football players. Medicine and Science in Sports Exercise.2012; 44(3):377–382.
    33.   Ibid at 11, see p.13.
    34.   Ibid at 7; and see also Ibid at 11.
    35.   See the AFL’s extensive documentation and Tribunal Booklets which are updated every year to specify certain areas of concern. Tribunal 2015, AFL, 2015, last viewed on 10 May 2015,http://www.afl.com.au/staticfile/AFL%20Tenant/AFL/Files/2015TribunalBooklet.pdf
    36.   W Brodie, ‘Ahead of the curve? Will the designated substitute curd high impact injuries?’, The Age, 17 March 2011, last viewed on 10 May 2015,http://www.theage.com.au/afl/afl-news/ahead-of-the-curve-will-the-designated-substitute-curb-high-impact-injuries-20110317-1bya2.html; Also see: M Cowley, ‘Collusion rule has everyone’s head in a spin’, The Roar, 19 May 2014, last viewed on 10 May 2015, http://www.theroar.com.au/2014/05/19/collision-rule-has-everyones-head-in-a-spin/
    37.   For example using the AFL Injury Reports like this one; ‘2010 Injury Report Australian Football League’, AFL, 4 May 2011, last viewed on 10 May 2015,http://www.abc.net.au/cm/lb/5546126/data/afl-injury-report-2010-data.pdf
    38.   In 1998 its research was into the impact of ground surfaces on injury rates – The Australian, Melbourne, 1st May, 1998, p22.
    39.   Associate Professor David Orchard, Dr Hugh Seward & Ms Jessica Orchard, ‘Australian Football League Injury Report 2013’, (Report, 2013), last viewed on 10 May 2015, http://www.afl.com.au/AFL%20Tenant/AFL/2013-AFL-Injury-Report.pdf
    40.   Ibid at 35, Every classification with a High/ groin classification is deemed more serious and contains a higher penalty than a body injury;http://www.afl.com.au/staticfile/AFL%20Tenant/AFL/Files/2015TribunalBooklet.pdf
    41.   In 2014, a new rule was introduced relating to “head clashes”.  A player who bumps or applies a “hip and shoulder” block to another player, and in the course of that any head contact occurs, even accidental, is deemed to have committed a reportable offence.  Examples include Nat Fyfe of Fremantle and Todd Viney of Melbourne, both very controversial decisions.
    42.   Ibid at 20
    43.   Email from Dr Peter Harcourt (AFL Medical Director) to Paul Horvath, 27 August, 2014.
    44.   See Agar v Hyde and Peter Joseph Hayden v New South Wales Rugby Union.
    45.   Dr Greg Hickey, Richmond Football Club Senior Doctor, advice to author on 12th November, 2014.
    46.   M Rucci, ‘AFL players laughing all the way to the bank – average salary now $265,179’, The Advertiser (online), 21 February 2014, last viewed on 10 May 2015,http://www.heraldsun.com.au/sport/afl/afl-players-laughing-all-the-way-to-the-bank-average-salary-now-265179/story-fni5f22o-1226834339957
    47.   J Ralph, ‘Concussion No Badge of Honour: Bolton’, Herald Sun, 7 May, 2015, last viewed on 10 May 2015, http://www.aflplayers.com.au/article/concussion-no-badge-of-honour-bolton/
    48.   Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 and Rootes v Shelton (1967) 116 CLR 383
    49.   Agar v Hyde (2000) 173 ALR 665, 687; the case was also heard together with Agar v Worsley and Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114
    50.   Australian Football League, ‘Concussion’, (AFL Concussion Presentation, Melbourne July 2013), p 5.
    51.  Ibid at 11, see p.10.



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