In the 26th minute of an August 2009 match between the Manly Sea Eagles and Cronulla Sharks, NRL referee Phil Haines faced a testing situation. Manly player Chris Bailey lay prone on the ground after being struck in the head by Cronulla’s Luke Douglas.
“He was out. Out cold,” says Haines 11 years later, recalling the incident as if it was yesterday.
Bailey received treatment on the ground for five or six minutes, allowing Haines and his assistants plenty of time to be certain of the foul that had occurred and to consider the appropriate action. Haines sent Douglas from the field and Manly, with a one-man advantage for the remainder of the match, went on to win in dramatic, last-minute circumstances.
What followed was rugby league meltdown; Cronulla coach Ricky Stuart describing Haines’ decision as “completely and utterly incompetent”, and “weak”. Despite Douglas pleading guilty to a charge of a high tackle, Haines’ boss, NRL referees coach Robert Finch, threw his man under a bus, saying, “It was a harsh decision in the circumstances, and you can understand the Sharks being upset,” before dumping Haines from first-grade.
Haines’ crime was that in creating a 13 versus 12 contest, he was thought to have unduly influenced the result of the match.
“It should be simple, but the NRL has made it very difficult for referees,” Haines reflects.
“Even now, they still won’t back referees up to send a player off. Because if it happens, the issue then becomes all about the referee being at fault, and not about the tackle itself, or the offending player’s actions.”
Move ahead to August 2020 when Jack Hetherington, on loan from the Penrith Panthers to the New Zealand Warriors, hit Manly’s Martin Taupau in the head with a brutal high tackle; coincidentally at the same ground, Brookvale Oval.
Experienced referee Henry Perenara did what NRL referees have continued to do, lest they suffer the same ignominious fate as Haines. Despite the rules of the game providing for a send-off in clear-cut cases like this, he placed the offending player in the sin-bin for just ten minutes, and on report for a judicial panel to deal with afterwards.
The game marches onwards, the integrity of the 13 on 13 contest is maintained, and fans and coaches are seemingly happy. But there are important reasons why they shouldn’t be.
In 2020, the National Rugby League has flown high under the leadership of hands-on chairman Peter V’landys. After V’landys adopted a bold, assertive stance with authorities, rugby league was the first sport to resume after the initial COVID-19 lockdown.
Nevertheless, dark clouds are gathering. Last week the NRL announced staff cuts of 25 per cent in the wake of reduced revenues. Rugby league is also one of a number of collision sports faced with concerns about concussion management. And because of the nature of the sport, it is particularly susceptible to high numbers of incidences.
Lurking in the shadows is the ongoing assessment and settlement of claims in America’s NFL where, as of January 2020, settlements totalling $USD724m had been awarded across 1051 claims. At current closure rates, it is estimated that the NFL is facing a potential total settlement figure in excess of $USD5 billion.
Concern has been shown by leading Australian neuroscientists that might lead to similar outcomes in the NRL. In 2017, La Trobe University neurophysiologist Dr Alan Pearce studied 25 former NRL players and compared them with 25 men of a similar age with no history of concussion and brain injury. The former players tested 40 to 50 per cent worse on cognitive testing.
In 2019, Associate Professor Michael Buckland from Sydney’s Royal Prince Alfred Hospital, plus clinicians from NSW Health Pathology and the University of Sydney’s Brain and Mind Centre, established the first confirmed link between Australian rugby league players and the incidence of CTE (chronic traumatic encephalopathy). This came after research using the brains of two deceased rugby league players, both of whom had played over 150 first-grade matches.
One of those men was later revealed to be ex-Canterbury Bulldog player and coach Steve Folkes, who died in 2018 of a heart attack aged 59. Upon the post-mortem revelation that Folkes had CTE, his son Daniel spoke to the Sydney Morning Herald of concerns about his father’s behaviour.
“It made a lot of sense. We had seen it [memory loss] and we didn’t know what it was.”
CTE is only diagnosed via autopsy and is associated with depression, mood swings, epilepsy, short-term memory loss and dementia, while some research has linked the condition with an elevated risk of suicide. There are also a growing number of awarded claims in the NFL for Parkinson’s Disease.
In the wake of this finding, prominent ex-players, including Martin Lang, Mark Carroll and Andrew Johns, expressed concerns about their own experiences with concussion during their careers, and other players have come forward to offer to donate their brains to science.
Separate legal actions have been launched by a number of ex-players, including James McManus, Brett Horsnell and John Higgins. Other cases – potentially against clubs and/or the national administrative body – are looming.
The NRL has responded by tightening protocols around management of head injuries. Working closely with qualified medical researchers, these were updated most recently in 2019, after which then-CEO Todd Greenberg claimed, “We have made huge changes going back to 2014 and I’m very confident those rules are in place for the primary reason for the care of our players”.
Nevertheless, there remain questions around whether or not the protocols are fit for purpose, and how strictly and consistently they are observed.
Recent high-profile examples where players have been heavily concussed yet played again soon afterwards include Mitchell Pearce (2020, a number of prior concussions, played one week later), Matt Moylan (2019, allowed to stay on the field for 13 minutes after being knocked out, played one week later) and Billy Slater (2017, played two weeks later, despite in evidence at the judicial hearing for his attacker, Sia Soliola, saying that he couldn’t remember anything that had happened for the previous two weeks).
There are numerous cases, almost on a weekly basis, where it is apparent that while returning players may have followed return to play protocols to be passed fit, the language used by those players and their clubs underscores an emphasis on doing everything possible to get back on the field as soon as possible, as opposed to conservatively managing their health.
Professor Alan Pearce of the Australian Sports Brain Bank told the Herald Sun recently that symptom resolution is not an indicator that the brain has healed, and that a 30-day rest period is required for the brain to recover properly. This view aligns with a recent study from New Zealand which found that half of concussion sufferers continued to show signs of brain abnormality up to 30 days of being injured.
Has too much responsibility been handed down to clubs to self-regulate? Then-University of Queensland researcher Dr Bradley Partridge has published a series of papers pointing to concerns over conflicts of interest: where concussion guidelines were frequently breached by coaches, team doctors, trainers and players; where protocols have been designed not necessarily based upon the best medical evidence available, but influenced by businesses supplying various items of equipment used to assess players; and where the governing body has not always ensured adherence to guidelines, nor enforced breaches.
In 2018, the NRL stopped disclosing which clubs had breached protocols and what penalties (if any) were being applied. It was suggested that the reason for doing so was to protect the reputation of club doctors, most of whom conduct private practices outside of the NRL – again raising conflict of interest concerns.
How does that lack of transparency reconcile with an organisation determined to tackle concussion prevention and management seriously, and does that lack of transparency act as an obstacle to driving cultural change?
There are some who believe that the potential problem is being overstated.
Ex-Newcastle and New South Wales State of Origin player Paul Harragon believes he was among the last wave of players to come through the game without adequately understanding the dangers of concussion injury, and without robust medical and other support and management processes in place. He told a 2019 concussion seminar that the NRL has come a long way in effecting positive change.
“The kids going through today, I really believe are going to be fine and dandy. With what’s in place, it’s a whole new ball game,” he said.
Newcastle-based clinical neuropsychologist Dr Andrew Gardner has worked closely with the NRL and is involved in ongoing research to enable a better understanding of the mechanisms and consequences of concussions. He is cautious about drawing conclusions on insufficient scientific evidence, but has observed that, “the ageing population is not rife with former collision sports athletes with dementia”.
And, despite suffering multiple concussions during his career, Harragon last year explained how, as an advocate for a clean and healthy lifestyle post-retirement, now in his fifties, he has never felt better.
In 2013, despite vocal resistance from players and commentators, the NRL banned the shoulder charge, of which 17 per cent of occurrences resulted in contact with the head. While many in the game still lament its loss, it is indisputable that rugby league is safer without it.
Even if the NRL’s view that concussion management is improving is accepted, can the sport ever be made truly safe?
But even if the NRL’s view that concussion management is improving is accepted, can the sport ever be made truly safe?
Players are getting bigger and stronger. Griffith University’s Professor Peter Milburn has outlined how, parallel with socio-economic development, each generation increases around 2.5cm in height and 4.5kg in weight. Under tailored nutrition and conditioning programs, professional rugby players grow at a rate three to four times that of similarly aged men in the wider community. Other researchers estimate that a 20 per cent increase in height and weight results in a 44 per cent increase in strength and a 73 per cent increase in inertia.
While Milburn’s study assessed data from rugby union players, there can be no disputing that it applies equally to rugby league. Bigger, heavier and stronger men are hitting harder than ever before, while there is no evidence to suggest that the brain is any more capable of withstanding such trauma.
Studies from the USA have found significant brain damage and cognitive function impairment in football players who did not suffer distinct, severe head injuries or concussions. This highlights the potential danger of whiplash-type injuries, and the cumulative effect of relatively minor, in some cases seemingly innocuous, events, known as sub-concussive hits.
In that context, it may be argued by the NRL that such occurrences fall within the scope of informed, reasonable, assumed risk on the part of players who take up the sport. Notwithstanding, there are numerous examples where high impact to the head of players occurs that is not incidental or accidental.
It is here that the NRL is on shaky ground.
Ex-Queensland State of Origin player Martin Lang, who suffered multiple concussions during his career, speaks to both the culture of rugby league (“Back in that era, shaking off a head knock and playing on was a badge of honour.”) and the prevalence of foul play and failing to adhere to rules (“I’d suffer a concussion from a head-high hit and I might spend a night in hospital, but a player wouldn’t have any penalty at all. They’d blame my running style. Looking back, that’s just ignorance.”).
While acknowledging better medical management of players, Lang still harbours concerns.
“What I see something wrong with is how these players are getting injuries in the first place. If it’s foul play, that’s what I do have a problem with.”
The NRL has rules around ‘player misconduct’, where a player is guilty of misconduct, “when affecting or attempting to affect a tackle makes contact with the head or neck of an opponent intentionally, recklessly or carelessly”.
In such circumstances, the rules state that a penalty kick shall be awarded against the offending player. Additionally, a referee or review official may, “In the event of misconduct by a player at his discretion, caution, temporarily suspend for ten minutes (sin bin), or dismiss the player,” and, “if an incident is significant enough a referee will also place the player(s) or incident on report”.
The rulebook also references foul play.
“A player will be sin-binned for foul play in circumstances where, in the opinion of the referee, the act of foul play is of a serious nature, but does not warrant sending off. Acts of foul play of a serious nature include… high tackles with direct contact with the head or neck which are deemed forceful.”
So, how are the NRL’s own rules for head high contact being observed?
Over the last five years (2016-2020), only five players have been sent-off in an NRL match. In 2018, Curtis Scott for punching. In 2019, Nick Cotric for a dangerous tip tackle. And in 2020, Addin Fonua-Blake for dissent/abuse, Kevin Proctor for biting, and Chad Townsend for a high, flying shoulder charge after the whistle.
On a weekly basis, there are multiple instances of head-high contact from unlawful tackles, many of them of a serious enough nature that players are taken from the field for head injury assessment (HIA). Yet offending players are overwhelmingly not being sent from the field.
It seems that the fallout from the Haines incident in 2009 still weighs heavily. No referee wants to become the story, or risk being sacked, as Haines was.
The main driver appears to be the value placed by the NRL on maintaining the ‘integrity’ and ‘fairness’ of a 13 versus 13 contest above the deterrent factor of sending players from the field. Players who, according to their own rules, meet the threshold for sending off.
What of players who are placed on report for high tackles, who face the judiciary?
There are numerous, ongoing examples of dangerous high tackles resulting in scant punishment for the offending player, including Joey Leilua (2020, four-week suspension), Tariq Sims (2020, one-week suspension), Martin Taupau, (2019, one-week suspension), Josh McGuire (2019 State of Origin Game 2, one-week suspension) Jaydn Su’A, (2019, no suspension despite this being a ‘double’ strike), Sia Soliola, (2017, five-week suspension).
For his hit on Taupau, Hetherington, despite an appalling record of four separate suspensions in his short 20-game NRL career, received nothing more than a further four-week suspension.
Almost on a weekly basis, players are being found guilty of serious high tackles, but due to an early plea, admission of guilt or a clean history, no suspension is applied.
Does the judiciary process and these outcomes reflect an organisation that is taking concussion seriously? Where is there a deterrent factor to influence players to change their behaviour and minimise the incidences of high and dangerous contact?
In a 2018 statement, the NRL reaffirmed that, “The role of the judiciary council is to act independently, impartially and fairly without fear or favour, affection or ill-will. We will continue to engage the best minds in the country to ensure the integrity and independence of the judiciary process.”
Another view might be that this statement is self-serving and convenient. The panel is independent insofar as it hears evidence and adjudicates without the direct influence of the NRL. However, it is still the NRL’s panel, and it operates under a code (penalty guidelines comprising a graded points system) that is set by the governing body.
Rugby league culture values toughness. It protects the sport’s ethos as a hard man’s game. Parramatta captain Clint Gutherson, after his teammate Nathan Brown was suspended for two weeks in 2020 for a high tackle, said that the Eels didn’t want Brown to tone down his aggression.
“He plays the game at 110 miles an hour and that’s why we love him, and that’s why he’s good for us,” Gutherson said.
In 2019, prominent St George Illawarra Dragons player and former Canterbury Bulldog James Graham spoke in the wake of Andrew Johns revealing his epilepsy was attributable to repeated head knocks throughout his career. Graham indicated head injuries were an occupational risk he was prepared to accept.
“What’s the alternative? I kind of like what I’m doing. The consequences of that are sometimes that you get hit on the head.”
Graham went onto add that, “You’ve got to go and play oztag if you don’t fancy playing league anymore”.
Celebrated as one of the chief protagonists in the infamous 1981 brawl between Manly and Newton, where he was punched in the head repeatedly and headbutted twice, Mark Broadhurst announced his Alzheimer’s Disease diagnosis in September 2020. Aged 65, looking fifteen years older, Broadhurst confirmed that he “now has trouble remembering stuff”, before adding, “I loved it. I miss that side of the game when it got cleaned up. Props would try and sort each other out.”
Rugby league culture values toughness. It protects the sport’s ethos as a hard man’s game.
The same culture is prevalent in television where, in June 2020, after the Wests Tigers’ Russell Packer hit Canberra’s Joseph Tapine in the head with a high tackle (for which he was suspended for two weeks), commentator Steve ‘Blocker’ Roach said, over vision of Tapine laying injured on the ground, “Fair bit of aggression here from the Tigers, good to see”.
For his trouble in sending Townsend off, referee Ben Cummins’ decision was pilloried by the media and ex-players, including Paul Gallen (“An absolute overreaction”) and Jamie Soward (“Are you kidding me. What a joke.”).
This despite Townsend pleading guilty at the judiciary, and Liam O’Loughlin of Sporting News describing what most objective observers could see: “There was zero intent to make a legal tackle – it was beyond reckless, it was intentional”.
And still it goes on. Just two rounds ago, when South Sydney’s Jayden Su’A was sent to the sin bin for a high shot on Canterbury’s Lachlan Lewis, commentators fell over themselves to debate the unfairness of his punishment – all while Lewis was seen to be staggering around in the background, clearly in distress.
In August 2020, Melbourne Storm hooker Brandon Smith was hit in a high tackle by Parramatta’s Marata Nuikore – a player who himself had been hit in the head earlier in the match by Melbourne’s Nelson Asofa-Solomona (Asofa-Solomona pleaded guilty to a grade-one dangerous high tackle charge but received no suspension).
The TV commentary that made light of Smith being attended to on the ground is typical:
“Smith is injured.”
“He’s got about 30 injuries. I’ve seen him limping, holding his neck, holding his shoulder, holding his groin. Holding his nose, holding his ankle. Now he’s spitting out blood.”
(Laughter in the background)
“He’s phenomenal so far as absorbing punishment and just keep going. He may have broken his jaw here. He’s copped a good shot.”
“He doesn’t understand pain. When the trainer went to poke at the jaw he said, ‘no, no, don’t touch it, don’t touch it’.”
As a result of the incident, Smith had two titanium plates inserted into his jaw and was put out of the game for six weeks. Niukore, who wasn’t penalised on the field, wasn’t placed on report and wasn’t cited by the match review panel, was free to play the following week.
Worthy of a good laugh? Debatable, particularly when the consequences can be even more tragic, and spread down through lower levels of the sport.
In September 2020, 19-year-old Joel Dark made his first-grade debut for Newcastle Central in the NSW Rugby League’s Newcastle competition. After Dark was hit in the head in a tackle, he suffered seizures on the ground, was transferred to hospital, and, five days later, passed away.
In 2015, Queensland Cup player James Ackerman died after being hit by an illegal shoulder charge from Francis Molo, who was under contract to the Brisbane Broncos at the time. The coroner found that the force of the hit caused Ackerman’s brain to hit the side of his skull, tearing a major artery, and his brain injuries were of the kind more usually seen in a car crash.
As tragic as both deaths were, it is the cultural aspects surrounding them that offer cause for concern. In Ackerman’s case, other players gave evidence to the coroner’s inquest stating that after the tackle, Molo picked Ackerman up by the jumper, then shoved him to the ground and dropped his knees into his chest, as if to celebrate the dominant tackle.
Molo received an eight-week suspension.
Aside from a pair of media releases announcing the injury and later his passing, Dark’s death has been met with a wall of silence from the NSWRL. Upon The Roar trying to obtain clarification of the circumstances around the tackle that caused Dark’s injury from them, CEO David Trodden said, “We expect that the incident will be the subject of a coronial investigation and in those circumstances, it would be inappropriate for us to provide any comment”.
The incident is still very raw and it is understandable that everyone involved needs time to grieve and process what occurred. But in the long run, rugby league administrators will have to decide whether such incidents are to be accepted as unfortunate accidents which are part of the risk associated with the game, are swept under the carpet and forgotten, or are used as a catalyst to drive change.
There is another twist to the matter of player safety. Under the cover of reducing operating costs as a result of the effects of COVID-19, the NRL in 2020 reduced the number of on-field referees from two to one. This despite a submission from the referee’s union, obtained by The Roar, which argued, under the heading “Duty of care to the players”:
“The second on-field referee provides a completely separate perspective of the match. On numerous occasions this second referee has picked up potential causes of harm to players which were not detected at the same moment by the other three on-field match officials nor bunker. Hence these forms of potential harm were responded to in a timely way: shoulder charges, illegal contact likely to cause injury, an injury potentially requiring HIA.”
Despite the submission, the NRL adopted an adversarial approach to the referees union, dismissed their concerns, and reverted to one on-field whistleblower. How did this move – ostensibly a cost-saving measure – reconcile with player safety outcomes?
Legal firms who have advertised for players to come forward to participate in class actions against the NRL have so far been underwhelmed by the response. One of the reasons is almost certainly the prevalence of a pervasive brotherhood culture that values dishing it out and taking it like a man, and not taking any action that might potentially damage the sport.
According to Sydney lawyer Rick Mitry, who is handling the individual cases of four ex-players, another reason is that some players are being advised not to pursue legal action, lest the publicity increase their stress and anxiety. A further, disturbing, reason Mitri identified is that, “some players simply cannot remember the details from which to construct a strong case. They know they were seriously concussed and went to hospital, but can’t recall the match details or even which hospital they went to.”
This in turn throws up obstacles around determining who to sue, in some cases players unable to easily pinpoint which club or governing body might be responsible.
“Some players simply cannot remember the details from which to construct a strong case. They… can’t recall the match details or even which hospital they went to.”
The High Court has already decided the organisation and hierarchy within a sport are important considerations in determining liability. In a case bought by two rugby union players against various administrations within Australia, it ruled that these governing bodies did not owe a duty of care to the players on the basis that they were not in a position to amend the rules of the sport. (Rugby union’s laws are set by the overarching governing body, World Rugby, based in Dublin.)
Fundamental is the question of whether the NRL, as the sport’s governing body, with the capacity to make and amend the rules and enforce their implementation, and the clubs, as direct employers, owe a legal duty to provide and invest in a safe workplace that prevents or reasonably reduces the risk of players suffering head injuries.
With respect to historic cases, an important consideration is to establish the level of scientific understanding of the risk associated with mismanaging concussions at the time a particular player was injured. In essence, was the sport following best practice based on the scientific understanding of the time?
With respect to current and new cases, given what has come to light in the NFL detailing the causes and effects of brain trauma, given the apparent failure of the NRL to observe their own rules, and their action in removing the second on-field referee, it is the view of Mitry and other lawyers that a strong argument exists that the NRL has failed to provide a safe workplace, and failed to reasonably protect players from head injuries and concussion, and that there also exists valid concerns as to the potential liability of the NRL and some clubs with respect to claims made by affected players.
How the NRL responds to these concerns will be fascinating. In late 2019 it announced the provision of an initial grant of $250,000 for the Retired Professional Rugby League Players Brain Healthy Study, with new CEO Andrew Abdo recently adding, “Player safety is always a priority. That’s why we are investing over $1 million in head injury surveillance and research. We are partnering with Harvard University to learn more about this area.”
Yet it remains to be seen how what Greenberg described as “playing the long game” on concussion will translate into better outcomes for players who are still subjected to a playing environment which facilitates forceful contact to the head, with little or no repercussions for offending players.
The Roar asked the NRL “what is the logic behind the NRL spending so much money on head injury research and focusing so intently on management of concussed players, when there is seemingly little being done to prevent players hitting each other in the head in the first place?”.
No response was received.
As ex-referee Haines – a man who continues to follow the game with interest – maintains, “Nothing has really changed. If the same thing happened today, the same outcome would occur.”
Rugby league and the NRL remain hugely popular, with Game 1 of the annual State of Origin series the most-watched TV event of 2019 in Australia, ahead of the AFL grand final.
But there is a looming sense that any sport which does not do enough to protect its participants from the potential for early-onset dementia, CTE and other brain injuries is on borrowed time.
Many past players who suffered concussions throughout their careers are now concerned about what lies ahead for them. Parents deciding whether to allow their sons and daughters to play rugby league have a right to know if the authorities and custodians of the game are serious about stopping players hitting each other in the head with force, and making the sport safer to play.
On the evidence to date, the NRL is failing the concussion test.
By Geoff Parkes
Geoff is a Melbourne based sports fanatic and writer, who started contributing to The Roar in 2012, originally under the pen name Allanthus. His first book, A World in Conflict; the Global Battle For Rugby Supremacy, was released in December 2017 to critical acclaim. Meanwhile, his twin goals of achieving a single figure golf handicap and owning a fast racehorse remain tantalisingly out of reach.
Editing and design by Daniel Jeffrey
All images via Getty Images.