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Slow train coming: future NRL head injury claims are inevitable, action required now rather than later

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Roar Rookie
21st March, 2023
26

There has been a lot written recently about the topic of head injuries in the NRL and what lies ahead.

While we can’t be certain what the future holds, we can be confident that the issue won’t go away and that at some stage we will enter a dense and thorny medico-legal thicket which has the potential to bankrupt the game and potentially end it.

This is related but separate to the existential threat posed to many contact sports such as league, rugby, NFL, boxing and martial arts, as social pressure builds worldwide to end sports that knowingly expose participants to risk of serious head injury.

There is a common law doctrine known by the Latin phrase volenti non fit injuria, or voluntary assumption of risk. It prevented claims in negligence for persons engaging in knowingly hazardous or risky activities and has applied to contact sport in the past. Over time this defence has been eroded.

It was recently partially reinstated in various Australian statutes to try and bring to an end the hugely expensive costs of tort claims, but the precise status of the defence of voluntary assumption of risk and when it applies or doesn’t is something lawyers and courts continue to debate.

Just to pick a couple of areas of contention, can a player sign a valid waiver to voluntarily assume the risk of permanent neurological damage if the magnitude and nature of risk of CTE isn’t fully known, even by medical specialists? What happens when a professional player’s employer directs them to play after a head knock?

Can a waiver exempt foul play? How do you work out medical causation for neurological injuries? It’s not like signing a waiver for bungee jumping or sky diving.

Class action lawyers are scoping these actions daily. They don’t care about the impact of these claims on the financial future of the game. To put things at their most charitable, they may care about player welfare, but like any other business, lawyers mostly just look for viable business opportunities.

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There are plenty of potentially huge claims already working their way through the courts in other jurisdictions and sports, including in the AFL. The NFL claims in the US resulted in close to a billion dollars in damages payouts.

It’s very difficult for the NRL to work out how to best respond to this slow train, coming both at the pro-level and also at the grass roots of junior football.

Kalyn Ponga is a modern player suffering frequent head injuries. (Photo by Matt King/Getty Images)

First, the NRL needs to prioritise player welfare, which is not the same as future compensation payouts, but they are convergent concepts. Addressing this concern has so far manifested in stronger policing of foul play and head high shots, changing incentives and sanctions for tackling techniques, implementing more stringent HIA protocols and other preventive and post- incident measures such as independent HIAs and stand downs.

The NRL has copped plenty of flack for its attempts to implement these measures and the players, referees, clubs and NRL are working through the controversies created. However, one thing can be certain, the NRL won’t reverse its position on head injuries.

Once a governing body implements any type of risk mitigation policy it almost never reverses it. How can it? The people running the game have their own risk profiles to manage.

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Once risk mitigation has been taken to its end-point without totally changing or wrecking the game e.g. no tackling at all or one strike and retire policy for concussions, what’s next? Well, in an effort to protect the sport from the risk of future financial collapse, the government could be lobbied to implement legislation that prohibits any legal claims by players for compensation for injuries sustained in professional sport. The chance of this happening is beyond remote.

The other option is to combine risk mitigation strategies whilst crossing-your-fingers-and-hoping that the incidence and impacts of head injuries and long term neurological effects won’t be as bad as predicted and will stay at a manageable level.

This is an optimistic strategy but not one that you could be confident of working. The speed of collision and size and power of athletes is continuing to increase and even with the current risk mitigation strategies in place, it seems unlikely that there will be so few players with long term effects as to keep the risk and costs to low and manageable levels.

I think the only real option is to continue to evolve risk management measures, undertake more research on preventing and managing CTE and other head injuries and to accept that future claims are inevitable.

The NRL should properly provision for this likely future through a comprehensive no- fault player welfare scheme funded by all stakeholders, including the players themselves and everyone else in the NRL ecosystem. This is achievable provided the number of claims is not excessive, the financial model is intelligently designed, and there are safeguards in place to avoid widescale rorting or abuses.

Implementing a comprehensive scheme is a necessity. Currently there are various schemes and insurances in place, but they don’t have the capacity to deal with multiple claims for long term neurological damage which can render ex- players unable to work and to suffer life changing injuries and debilitation.

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Even with a large and effective compensation scheme to help players who do suffer life changing impacts, it’s hard not to be a little pessimistic that high collision contact sports like league will not need to be modified, redesigned and more highly regulated or might ultimately be banned.

As a lifelong fan, I, like many others, would be devasted if the game disappeared. If the price to pay for the game continuing for another 100 years is contributing to a compensation scheme through a ticket levy or higher pay television subscription fees, I’m happy with that.

Equally, whilst I greatly enjoy the physicality and gladiatorial aspect of the game and rail against the over policing of tackles or the disruption caused by HIA protocols, I also understand that it might be a choice between no game at all or a slightly softer and safer version.

I’m happy enough to see risk mitigation strategies continue to evolve and even strengthen. Apart from avoiding a possible future ban, this dual approach would also achieve the considerable benefits of not bankrupting the sport or seeing more ex-players sadly spending their post playing days with brain damage and insufficient financial support.

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