19 May 2015 Knocked out: Concussion issues for Australian rugby codes

By Tom Johnston, Senior Associate and Will Kingston, Graduate at Law

In Brief

“On concussions, I think is one of these pack journalism issues, frankly… There is no increase in concussions, the number is relatively small… The problem is a journalist issue. “

  • NFL Commissioner Paul Tagliabue in December 1994

On 22 April 2015, the matter of concussion in sport became much more than a journalist's issue.  A problem that had been simmering for years had reached its peak, as final approval was given to a class-action lawsuit settlement in the US District Court for the Eastern District of Pennsylvania.  The lawsuit joined actions brought by over 5,000 former NFL players who had retired on or before 7 July 2014.  At the heart of the case was the NFL's denials of the risks stemming from brain trauma whilst playing the sport and the NFL's alleged failure to put adequate protocols in place to protect its players. That alleged failure will now cost the NFL somewhere in the vicinity of $1 billion in settlement payments over the next 65 years.   

For those in the Australian legal industry, this is simply workplace health and safety 101 – an employer or business has a primary duty of care to ensure its workers and others are not exposed to a risk to their health and safety.  A primary duty of care exists when employers direct or influence work carried out by workers, engage workers to carry out such work and have management or control of the workplace.  The NFL was subject to a similar duty of care, primarily by virtue of the collective bargaining agreements with the players. 

This news from the US would not have gone unnoticed by those in charge of Australia's two most combative winter football codes; the Australian Rugby Union (ARU), and the National Rugby League (NRL).  Both the ARU and NRL have in recent times taken steps to strengthen their collective concussion protocols and limit their ultimate exposure to liability.  It is also understood that the ARU Super Rugby franchises and NRL clubs have also made attempts to implement measures to better limit and manage the occurrence and effect of concussion on players.

But are these Australian codes doing enough? And what are their current policies anyway?

Current policies

George Smith was one of the greatest ever Wallaby forwards.  In 2013, playing for the Wallabies against the British and Irish Lions, Smith suffered a traumatic head clash and was helped from the field in a daze.  The decision to allow him to return to play only minutes later was heavily criticised by many, including commentators and medical experts.  The incident appeared to be one of the reasons that the International Rugby Board (now known as simply 'World Rugby') updated its concussion guidelines in January 2014.

Those guidelines include the following:

  • compulsory removal of players with a head injury from the field where the diagnosis is not immediately apparent
  • assessment of players with a head injury by a 'Certified Medical Professional' through the use of a 'Pitch Side Concussion Assessment' (PSCA)
  • a 'Graduated Return to Play' (GRTP) program
  • all players who complete a GRTP must receive medical clearance from a doctor or an approved healthcare professional before returning to play

The ARU has followed the World Rugby Concussion Protocol in adopting its own ARU Concussion Guidance (Rugby Public) policy, which includes guidelines for six steps of managing concussion – "Recognise, Remove, Refer, Rest, Recover and Return". 

The ARU has also been active in implementing further measures, such as:

  • the creation of a 'Concussion Advisory Group'
  • the appointment of a full-time concussion specialist on its staff
  • a doctor on the sideline of all domestic international matches solely watching out for concussion (acting as a second set of independent eyes alongside the doctor assessing players under the PSCA)

In rugby league, the NRL claims to have a concussion policy although recent searches only reveal the "Management of Concussion in Rugby League Guidelines" and the "Return to Play Policy", the latter of which deals with all types of injuries.  The Management of Concussion Guidelines do provide steps for management of concussion, including game-day and follow-up management.

The NRL claims to have also recently strengthened its position on concussion, following the NRL handing down a $20,000 fine (of which $10,000 was suspended) to the Parramatta Eels for their mishandling of three concussion incidents earlier this season.  The NRL claims to have amended its policy so that:

  • players must not return to the field if they have exhibited a loss of consciousness, or have fallen to the ground without taking protective action or suffered a seizure, memory impairment or ataxia
  • players must leave the field if they suffer from an injury that could appear to lead to concussion, such as a facial fracture, however, they may return to the field following testing by medical staff if appropriate
Areas for improvement

Whilst the ARU and the NRL have begun to address the issues of concussion in sport, there is still a lot more to be done.  Both codes have implemented initiatives, good as they are, which appear to be more public policy than codified rule or law.  Both codes have guidelines and 'best practice' policies, but nothing as yet concrete to ensure all participants comply with those guidelines and policies.  It does not appear that either code has yet developed a structured and uniform set of rules and penalties applicable to incidents involving concussion.  No doubt, there will come a time when the codes set out a table of penalties, including fines and suspensions, for various types of breach.

In the current state, however, clubs or players who act contrary to the guidelines and policies are at the discretion of the governing bodies.  Whilst we acknowledge that both codes have catch all clauses in their Codes of Conduct (i.e. in the ARU Code of Conduct – cl. 3(h) "All participants in the game are bound to comply with the ARU's Safety Directives for Referees, Coaches and Players") and standard player contracts, there is nothing more definitive.  A stronger, more uniform and publicised set of penalties would assist all participants and act as a deterrent.

In addition, there are further issues for the codes to consider, including that the NRL ensure that diagnosis of concussion is provided by independent doctors (as opposed to club doctors under pressure from clubs) and that baseline testing in both codes also be conducted by independent doctors.

In recent years, sport has finally woken up to the severe physical risk and side effects of concussion.  It is now obvious that there are very real risks for sporting bodies and clubs if they do not put adequate structures in place.  The ARU and NRL appear to be on the right path to addressing these concerns but must continue to be proactive in the development, publication and enforcement of their respective concussion policies. 

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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