In response to new scientific knowledge regarding the permanent health risks associated with concussion, the AFL introduced a couple of new rules in response.
The first of these rules was to introduce an injury substitute player who can replace a player on the field who has been injured in any way, including by concussion. The second rule was the introduction of a mandatory 12-day stand down period for any player who had suffered a concussion. This would almost definitely rule a player out for their club’s following match.
St Kilda Football Club’s former star Nick Riewoldt did not react positively to certain aspects of the second rule. Whilst acknowledging that he agreed with the AFL’s strong concussion position, Riewoldt stated that he would try and obtain an intervention order from the Supreme Court if he was feeling “okay” but made to sit out a Grand Final. He further emphasised that if an independent doctor deems a player eligible to play, then the player should be allowed to play.
This article aims to address:
- the legal responsibilities of sports organisations and clubs;
- the fine balancing act which must be struck between an athlete’s will to compete and his or her health and safety; and
- the merits of Riewoldt’s injunction threat.
Responsibilities of Sports Organisations and Clubs
In December 2020, a group of rugby players initiated legal action against World Rugby, the Rugby Football Union (RFU) and the Welsh Rugby Union (WRU) after suffering from early onset dementia. The players argue that their symptoms are a result of concussions they had suffered during their playing careers. They claim that they suffered these concussions because the aforementioned rugby organisations had breached their “duty to safeguard and promote the development of the sport, having regard to the safety and best interests of the players”. This highlights the core of the responsibilities that sports organisations and clubs have regarding concussion.
If a sports organisation or club has breached its duty of care to its players or athletes, then it may be held liable for negligence. In regards to concussion, a duty to safeguard an athlete’s health and safety might be owed to athletes and players. However, this duty may be difficult to establish.
In Agar v Hyde, a couple of amateur rugby players sued the International Rugby Football Board (the Board) after suffering devastating injuries which left them as quadriplegics. The players had suffered neck injuries whilst in a poorly executed scrum. The players contended that the Board owed them a duty of care due to the risk of injury. They contended that the Board breached this duty by failing to amend the rules of the game to reduce unnecessary risk of serious injury. This, they argued, included the risk of serious neck injuries whilst in a scrum. The High Court ruled that the Board did not owe the players this duty because:
- The nature of rugby is that it is dangerous, and the players participated in the sport of their own free will.
- There are rules regarding scrums in the sport, but the Board could not control how its rules were applied during an individual games of rugby. The Board can only influence how the sport is play but not control each individual game.
- The Board does not owe each and every player a duty of care despite being able to determine the rules of rugby.
However, despite the decision in Agar, professional sports organisations need to take note that the case related to amateur leagues. Laws could apply differently in a professional context.
Regardless of whether a sport is played at an amateur or professional level, it is important for sports organisations and clubs to be aware of the legal risks involved with serious injuries like concussion and to be conscious of the moral obligation they owe to athletes to protect their health and safety.
The Agar decision is 21 years-old and new scientific information is more widely available on a range of sports injuries, including concussion. Sports organisations and clubs may be held accountable to foreseeable risks, which include those related to concussion. Therefore, sports organisations and clubs should be mindful of the need to implement measures to protect the head and prevent concussions.
A Fine Balancing Act
Adelaide Crows women’s player Chelsea Randall was the first player to miss a Grand Final under the AFL’s concussion protocols. Randall suffered a concussion in the Crows’ preliminary final against Melbourne. However, she stated:
“For me personally, it’s not to scare anyone but rather educate people. When I was 20, I was watching an E-Division grand final and a young man died in front of my eyes. The week prior he’d been concussed, he went to seven different doctors, he got an approval to play, he was the captain of his team. He received a normal bump at a centre bounce and he never got back up – so it is quite a scary thing…I decided to not take further action because, one, that story but it’s an important message that we send at grassroots footy as well.”
However, these comments are in stark contrast to Riewoldt’s comments, who believes players should be able to play if an independent doctor deems a player as eligible to play. The direct juxtaposition between Randall and Riewoldt’s positions perfectly illustrates the fine balancing act which the law must perfect. That is, the law must balance an athlete’s competitive instincts, the inherently dangerous nature of contact sport and the doctrine of informed consent, against the need to protect athlete’s health and safety.
An Injunction to Play?
So how relevant are Nick Riewoldt’s comments about obtaining an injunction to play in a Grand Final? The answer is that it would be unlikely that a player could obtain an injunction against the AFL to allow them to play when they have suffered a concussion.
Legally, courts will only grant an injunction if:
- A prima facie case is made out by the applicant; and
- The balance of convenience deems it so. This means that the convenience experienced by the applicant from the injunction outweighs the inconvenience experienced by the respondent.
In the case of an injunction to allow a player to play, the player would need to make out a prima facie case that the concussion rules constitute an unlawful restraint of trade whereby the AFL has stopped the player from competing in a match. Alternatively, the player would need to make out a prima facie case that the concussion rules are unfair and incorrect.
Both of these actions would meet significant hurdles given that the player would need to spend time and resources to build a prima facie case against a wealth of scientific evidence which supports the AFL’s position on concussion. By the time the player has finished presenting their case, the match may already have been played, rendering the whole exercise of obtaining an injunction a futile exercise.
From a public relations perspective, any action taken by a player against the AFL may also undermine the AFL’s intention to mitigate the health risks of concussion, and the professional competence of the AFL’s doctors and club doctors.
Consequently, the chances of success in such an application are likely to be outweighed by the risks associated with taking action in all senses.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on email@example.com or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
If you need assistance, please contact Paul Horvath at SportsLawyer on 9642 0435 or reach out to us at firstname.lastname@example.org. Nothing in this article should be relied on as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.