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.
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.
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.
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.
Heyou
Roar Rookie
Will the NRL brand evolve into a version of Super League? It’s a softer, easier, less interesting game according to many (most) RL people in Australia. I’ve seen some cracking super League games that were not overly discernible from the NRL brand. They have their own troubles relating to player welfare and court actions. Will there inevitably be weight restrictions? Will the number of players allowed in a tackle be sliced in half? Will the grounds RL is played on be changed because some very smart people come up with a new, beaut surface that somewhat negates brains rolling around and bashing against skulls? Change is inevitable perhaps. Thank you for a thought-provoking article. :thumbup:
mushi
Roar Guru
The great news though Barry on medical assistance is the amount of money going to welfare is a smidge over 50% of pre covid levels. So apparently there's nothing really going wrong at all.
mushi
Roar Guru
Good article. On the assumed risk side there's three other wrinkles. The first being players move at least partially out of the junior networks and into elite programs before 18, so are exposed to the risk by NRL clubs before becoming adults. Even if legally acceptable there's an ethical line of allowing that. The second that we know that even if given all necessary information (which we don't have) they can't fully process and assess that risk until circa 25 years of age. The third that once concussions have occurred there's known potential for that risk assessment to be further impaired. The lawyers that ran our WHS training were also at pains to point out that the more severe the consequence (death or permanent disability) the less likely a director can rely on employee or contractors knowledge of the risk. Not sure how far that extends in the sports industry.
Rellum
Roar Guru
Gus is in the 80s when it come to head knocks
Big Daddy
Roar Rookie
Scrum, but that’s exactly what the problem . Gus’ thinking is from 30 years . The landscape in relation to head injuries has changed but Gus still has his head and thinking in the 90s . Yet people still hang off his every word and won’t disagree with his backward opinions. And still yet the NRL won’t be proactive in relation to this . They’re probably waiting for the outcome of the AFL class action , but then it will probably be too late .
Big Daddy
Roar Rookie
It's an interesting conversation particularly now we've had some deaths and also stalwarts of the game suffering dementia from previous years head knocks, but also it needs to be addressed now as today's footballers are bigger , fitter and do tend to hit a lot harder particularly above the neck so looking forward to 20-30 years it will be more of an issue . Let's hope we don't have wait that long for something to be done .
Rellum
Roar Guru
The other thing I think we can do which will seem counter intuitive is to reduce the interchange. If we slim down the players we get less impact force, less whiplash. I also think instead of reducing contact sessions in training is to reduce time allowed per week in the weight room as an idea to explore. Contact sessions are the perfect place to improve tackling techniques so reducing them will have the opposite effect than intended
Rellum
Roar Guru
More offloads is better. Go watch early 2000s Origins, they are much much faster games than today with many more offloads and passing in traffic/post contact.
Rellum
Roar Guru
See my reply to Matt about what think we can start doing to reward lower tackling
Rellum
Roar Guru
To start with any head clashes that result from upright tackling should be considered reckless and the tackler cop 4 weeks. A lot of concussions come this way and it will also reduce wrestle. All this talk of players suffering more concussions from tackling low is from poor technique as Hindy pointed out this week. Tackling low shouldn't put your head at hip height and your eyes looking at the ground. Head contact should be outlawed period, only players falling into a head high that a panel of experts consider accidental should be allowed. Clear head highs like Saifiti should cop more. To encourage coaches lower tackles should be rewarded with longer to get off the tackled player. Upright grabbing/shirt front tackles should get very little leeway in getting off the player, held called and give them time to roll away quickly with no lenience. Legs tackles and driving up into the ribs will be rewarded, tackles engaging around the head and shoulders should get no reward. That's a start
Christo A
Roar Rookie
Yes- there will be a lag with changes in tackling techniques. The rules enforcement has contradictions pushing and pulling in different directions. If tacklers go high they injure the ball carrier and if they go low they injure themselves eg Hame Sele. Off loads and second phase play may become more common and coaches and players will need to adjust. The game keeps changing. Legs tackles were common when i was a kid.
matth
Roar Guru
Coaches will always 100% look for an advantage. Until the risk from head contact is greater than the risk of tackling low - from a winning perspective- we will continue to see high tackling. In the 1980’s Jim Conan’s and the judiciary made the risk from violent foul play too high for players and coaches to stomach and that sort of play is almost gone. So we can either throw the book at all high contact, Conans style, or we can give low tackling an advantage that coaches want to use. What advantages? I have no idea but it has to be significant enough to interest the coaches. Extra time to get up from the tackle? Maybe the tackled player can’t play the ball until the low defender is at marker? Maybe a one on one effective low tackle removes a tackle from the attacking set? I.e. on tackle three a player is brought down in a one on one tackle with no high contact, tackle count jumps from 3 to 5? It sounds ridiculous even as I type it. We only have a carrot or stick to use, as coaches and clubs are governed by self interest. So either we need to come up with a good carrot, or the stick has to get a heck of a lot bigger.
The Barry
Roar Guru
It did. It’s not as simple as an A) or B) scenario
The Barry
Roar Guru
I don’t think that has seen a change in defensive technique yet A lot of concussions are caused by multiple defenders hitting upright. Four heads all in the same real estate as well as the risk of high tackles Tackle target zones - particularly for the first contact - are still above the ball. Aiming above the ball prevents offloads, but also reduces the margin of error for a tackle becoming a high tackle I agree there’s less tolerance for things like “it slipped up off the ball” and “the attacking player fell into it” but if players can get grade 1s and get off with a fine, there’s no incentive to change technique - for players or coaches I don’t think techniques have changed at all in the last 24-36 months as awareness of head injuries has increased and concussion protocols have changed markedly. The NRL is basing their solution on damage control after an incident has occurred instead of trying to prevent the incident taking place
Adam
Roar Guru
Interestingly on the weekend I saw some of the big Manly guys bending at the hips and making proper tackles. So perhaps some teams are moving towards proper technique? I think the issue of risk that the NRL has on their hands are multidimensional. They have to effectively manage the acute risks (rewarding proper technique and suspending players as TB points out), then mitigate the ongoing harm to player welfare in the short term (ie the compulsary stand down) and as you've rightly pointed out, the long-term health of the players (be it through funds etc). I'll give the NRL their due, I think they've finally headed in the right direction despite all postulating by media types and there is also an undercurrent of fans who think the game has gone soft (it hasn't). Circling back to the standown. There's a rugby podcast Rugby Reloaded which looked at the concussion protocols of rugby union before it went professional. The stand down periods went something along the lines of the first concussion would see a 2 week stand down period and then subsequent concussion was for 6 months (or it might have even been the remainder of the season). Essentially the risks of concussions were well known as early as the 70s and we're only just getting back to what was well known in the past.
Monorchid
Roar Rookie
I enjoyed reading your very good article Christo. The outcome of the Senate enquiry into concussion and head trauma may provide a way forward, whatever that will be. Legislation may be one result, though perhaps not a desirable one if a non-football bureaucracy is involved, and continues to be. I tried to call up the web site for the enquiry a few minutes ago, but there seems to be a problem with it this morning. But when I looked at it a couple of weeks ago, I was extremely surprised to see that the only football organisation to have made a submission was Rugby Australia. And I didn't think it was too good. Submissions have closed. My hazy memory is that the enquiry is due to report in June this year.
Adam
Roar Guru
Their judiciary of MRC or whatever they call it is even worse than the NRL (somehow). Take a look at the Kysaiah Pickett hit from the weekend. Got two weeks. The AFL is somehow well behind the NRL
scrum
Roar Rookie
Nah- let’s be Gus Gould “ nothing in it”. Or like many in the sport- “,the game is going to be ruined” at any serious attempt to mitigate against head clashes. The culture of the sport will require strong leadership to drive change and the history of the NRL in regards to foul play is very poor - “it’s a man’s game. “
AJ Mithen
Expert
This is a really good read Christo, thanks. I do agree a little with Barry that something has gone wrong with the penalties for foul play. 'Keeping players on the field' with fines and low gradings seems to be sending completely the wrong message.
Redcap
Roar Guru
Excellent article – thanks Christo. __ Your comprehensive scheme sounds much like the sort of levy governments and some private sector peak groups run for things like dispute resolution and other shared services – it sounds like a good idea and I’d be really fascinated to know if the NRL/its insurers/actuaries/others have done any sort of modelling into what a scheme might look like, its likely financial capacity, whether other existing schemes could be rolled into it, and so on. __ Like Barry, I’m still worried that not enough is being done to incentivise change to tackling techniques – this is among the most urgent areas the game needs to look at and, at least in my opinion, among the lowest hanging fruit in terms of risk mitigation. Get on with it, NRL! __ Thanks again for an interesting read.