COMMENT: The Tribunal are right - Brayden Maynard's act wasn't illegal... but from now on, it should be

The decision made by the AFL Tribunal to clear Brayden Maynard of all charges for his collision with Angus Brayshaw was the only one it could have possibly made.

Under the letter of the law, what Maynard did on Thursday night at the MCG – attempt to smother the ball and in the aftermath concuss Brayshaw while bracing for contact – is not specifically outlawed under the league’s rules.

The cases mounted on Tuesday night by both AFL and Magpies counsel proved that for a fact. League representative Andrew Woods mounted the flimsiest of arguments that Maynard and future players in his position needed to consider the potential to cause injury of any act in microseconds of time, while Collingwood lawyer Ben Ihle responded with a successful claim that Maynard had zero chance at all of making that judgement in real time and that the beginning action – his choosing to jump to smother – was entirely reasonable under the circumstances.

“It is asking a lot of a player to decide in a fraction of a second which various ways to land, a high speed collision, and which of those ways of landing might result in which type of reportable offence,” Tribunal chairman Jeff Gleeson said in explaining why Maynard had been cleared.

Tribunal guru David Zita, from Fox Sports, has written out Gleeson’s entire statement, but the entire verdict rests on this one salient point.

It was always going to be thus – if not at the Tribunal, then at the inevitable visit to the AFL Appeals Board when the Magpies took any suspension handed down to that level.

Maynard was never going to be suspended for poleaxing Brayshaw, because right now, it is not illegal to concuss a player, provided it occurred via a reasonable action.

And it’s this area, I believe, that the AFL urgently needs to address now. What Maynard did is right now legal. Come next week, it shouldn’t be.

The reason? Simple: however football-oriented Maynard’s action was, and nobody disputes that this was a genuine attempt to smother the ball, the outcome has left a player knocked out cold, ruled out of a crucial match and most likely more, and facing an uncertain future.

Concussion is the most serious issue to be facing the game in our lifetime, both for the players involved – the heartbreaking revelations of John Platten this week about his health battle following a lifetime of head knocks only the latest in a long line of alarming outcomes – and the AFL itself, given the ongoing concussion lawsuits being waged against them.

Put simply, it is, at minimum, a life-altering risk that players are being unnecessarily exposed to, and at worst a threat to the very fabric of our game.

The AFL hasn’t failed Brayshaw by not ensuring Maynard copped punishment for ironing him out: it had already failed him by not providing the necessary safeguards to discourage players from doing as the Collingwood defender did.

For the last decade, the league has slowly but surely been clamping down on incidents, once thought footy acts, that more often than not lead to concussion. The response from the football public – and in many instances the media – has been uniformly of alarm that the basics of our game were under attack.

I can still recall the outrage when Melbourne’s Jack Trengove was suspended for three weeks for this sling tackle on Patrick Dangerfield:

At the time, this was thought to be a perfectly legal tackle: no free kick was paid, with Dangerfield’s concussion from hitting his head on the ground seen as an occupational hazard by many. Demons teammates famously took to Twitter decrying the ban.

Yet now, there would be no doubt that Trengove would face the music, no dissenting voices from the media, no angry teammates feeling injustice had been done. The game has moved on, and we’ve collectively come to terms that what Trengove did should, rightfully, be outlawed.

There was similar outrage two years later, when James Kelly received a two-match suspension for this bump on Brendon Goddard.

There’s not a lot of difference between what Kelly did and what Jordan De Goey did to Elijah Hewett earlier this year: yet 10 years of experience and acclimatising to the new order transformed the reaction from ‘RIP the bump’ to Dom Sheed’s famous ‘he deserves a good month or two on the sidelines’ for the latter incident.

My point in mentioning the above two cases is that, while the idea of Maynard being banned for his collision with Brayshaw was met with scorn and derision in some corners (most of them black and white), that doesn’t mean it will be viewed in the same lens in two, three, five or ten years’ time, if the AFL acts now to outlaw it.

And what has seemingly been forgotten in all this debate over Maynard’s fate is the true victim: Angus Brayshaw.

The only way forward for the AFL is to protect the next player, however many years down the line it comes, from an act such as Maynard’s.

Just as crackdowns on dangerous tackles and bumps have drastically lessened – though, of course, not eradicated entirely – incidents such as those, so must there be one now for the Maynards and the Patrick Cripps (from last year) cases.

How to do it? My answer is simple: remove the grey area around what constitutes an ‘unreasonable action’, and what is a ‘football act’.

It’s this grey area that made the AFL’s counsel look a goose in mounting his case on Tuesday night, and what allowed the Magpies’ counter-argument to tear theirs to shreds. The reality is we don’t know, in cases such as Maynard’s, what is legal and what isn’t.

The answer to protect the Brayshaws of the future is to ensure that players know full well what is a suspendable act, the result of which is that a future Maynard will be disinclined to take the action that started it all: jumping with forward momentum into an opposition player, the act of which turned his body, in the words of biomechanist Professor Michael Cole, into ‘essentially a projectile… a frisbee with arms and legs’.

The way to stamp this out is to ensure players are liable for any action they undertake, whether reasonable or not, should it lead to head contact and the chance of concussion with another player.

The decisive factor will then be not whether a player entered such a contest with reasonable intent, as Maynard did, but whether they made every possible effort to avoid injuring the player they collided with – which Maynard, in legally bracing for contact and in so doing leading with his shoulder, did not.

If they can’t guarantee the safety of an opponent or that of their own, well then, in the words of Woods, they should have ‘[thought] about a way to do it that’s not going to unreasonably risk the safety of the other player’. In this case, it would mean Maynard shouldn’t have risked jumping in the first place.

What it boils down to is this: if a player elects to put themselves in a dangerous position, as Maynard did by launching himself into the air, then any injury, especially concussion, sustained by a player they collide into is on them.

It’s identical to how a player now can’t attack the ball by sliding into it if they collect another player below the knees – that’s a free kick. It’s identical to how a player now can’t execute a hip and shoulder bump, a time-honoured part of the game, if they hit another player in the head – that’s now between one and three weeks off.

Both those were once considered football acts and deemed perfectly legal – the tipping point for the former was when Lindsay Thomas overturned a hefty ban in 2012 for sliding in and breaking Gary Rohan’s leg. Maynard’s case should be the tipping point for this latest controversial incident.

The flimsiest part of Maynard’s argument was in his claims he could not have anticipated contact with Brayshaw – for all the evidence the Magpies counsel gave in relation to Brayshaw changing his line into Maynard’s path, it’s notable Gleeson’s verdict found that ‘a reasonable player would have foreseen at the moment of committing to the act of smothering that some impact with Brayshaw was possible’, but just not one severe enough to knock him unconscious.

If the AFL wishes to amend my proposed rule by saying that marking contests supersede this new onus on players, therefore enabling players to leave the ground and leap for a high mark and not be held liable for hitting a player’s head with a flying knee in the process, then they can do that.

Angus Brayshaw was knocked unconscious in a collision with Brayden Maynard. (Photo by Quinn Rooney/Getty Images)

The league, after all, have made an exception for marking contests in the ‘deliberate out of bounds’ rule – defenders are allowed to punch the ball out of bounds to spoil a mark – and the Tribunal exempted Tom Lynch from his concussing of Alex Keath earlier this year on the grounds that he was going for a mark.

It would also serve to alleviate Kane Cornes’ fear that any attempts to suspend Maynard, or outlaw his act, would mean the death of the high mark as a consequence.

But I’d also argue that, given the severity of the concussion issue, that making the game safer for its players makes losing core aspects of it is a price that must be paid.

The bump, for all intents and purposes, is gone, so rarely is it applied these days given the risks it carries for both the bumper and the ‘bumpee’. That violent side to the game was once a key reason why many fell in love with our game – and just look at the reaction to even the most minor flare-up between players today! – but footy is still enjoyable without it.

Under the letter of the AFL’s laws, Brayden Maynard did nothing wrong by jumping to smother, bracing for contact, and knocking Brayshaw cold – and he was rightly cleared by the Tribunal because of that.

But now that the league has proof of just how dangerous his act can be, to not do anything to ensure it cannot happen again without consequence would be a far, far greater dereliction of duty than allowing the Magpie to escape sanction for this one.