Rooke v AFL and the future of footy
Introduction
Australian rules football is something that so many Australians love, but with the rising concern of concussion, there are more questions than answers regarding the future of the sport as we know it. Since 2005, the Australian Football League (AFL) has taken steps to address issues around concussion. However, in a recent class action proceeded by former player Max Rooke, it is alleged that the steps the AFL have taken were insufficient to minimise the impact of concussions on players.
Class action
A class action or group proceeding is a lawsuit in which one or more plaintiffs make a claim for themselves and on behalf of other people. Plaintiffs make a claim together because their claims arise out of the same, similar, or related circumstances. Class actions for negligence and selling defective medical products are common, as these types of wrongdoings can impact a large group of people. The law on class actions is governed by Part 4A of the Supreme Court Act 1986. Section 33C of the Supreme Court Act, states that in order to commence proceedings the following must be satisfied:
(a) seven or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common question of law or fact
Rooke v AFL
On 14 March 2023, Max Rooke, a dual-premiership player for Geelong, filed a class action against the AFL for breaching their duty of care owed to players, resulting in Rooke, and the other plaintiffs, suffering injury, loss and damage. Rooke cites that his future earnings capacity has been compromised as a result of this failure.
The writ submitted by Rooke’s lawyers lays out the failures of the AFL, described as the ‘particulars of negligence’. These are:
(a) Failing to make and enforce Rules, policies, procedures and protocols for Players and Clubs reasonably designed in line with the state of medical knowledge so as to mitigate, ameliorate and reduce the incidence of concussion and the consequences thereof.
(b) Failing to adequately conduct risk assessments as to the risk of head strike and concussion injury, and to review the risk assessments from time to time.
(c) Failing to educate, instruct, or inform Players regarding the symptoms and risks of long term injury arising from concussion, in particular the risks associated with an early return to play.
(d) Failing to require, as a Rule, certification that a Player is fit to play from a properly qualified medical practitioner following a concussive episode before the Player resumes training or competition.
(e) Failing to enforce, and to cause affiliated Clubs to enforce, best practice medical treatment following a concussive episode.
(f) Failing to provide any, or any sufficient, education to Clubs or Players around concussion and management of concussion.
(g) Failing to require or ensure, adequately or at all, the proper monitoring of Players for signs or symptoms of concussion.
(h) Allowing and or failing to prevent the plaintiff from returning to play before a reasonable time of recovery after suffering a concussion.
(i) Failing to assess the plaintiff, adequately or at all, for concussion and the aftereffects following a head strike.
(j) Placing the plaintiff at an unreasonable risk of danger of long-term injury caused by concussion.
The impact of the class action
Although there have been no findings or a conclusion to the class action, the AFL has taken more drastic action to minimise instances of concussion. Such actions include harsher penalties for players who concuss another player and having a more cautious return to play approach after head trauma. Recently, Jimmy Webster received a seven-week suspension for his bump on North Melbourne player Jye Simpkin in a pre-season game. The length of this suspension is considerably longer than similar indiscretions in the past, proving that the AFL are trying to crack down on acts which often lead to concussion. However, even with the AFL harshly penalising dangerous acts such as the bump or tackles where a player’s head hits the ground, some instances of concussion seem unavoidable. This can be seen in the collision which left Fremantle’s Karl Worner unconscious in Fremantle’s round one game against Brisbane.
Where to from here?
On Wednesday the 13th of March many students at MLS were privileged to listen to a talk by Peter Gordon, one of Australia’s most prominent class action lawyers and the former president of the Western Bulldogs Football Club. Gordon explained that a no-fault financial support scheme for players with health issues after their career may be the future of taking care of players affected by concussion. Such a scheme would likely cover ‘medical and like expenses’ and ‘lump-sum impairment benefits’.
Conclusion
Regardless of the outcome of the current class action against the AFL, it is clear that changes are imminent both on and off the field. On the field, AFL rules are likely to continue to change to try and limit contact to the head, with some even suggesting that tackling may be outlawed. Off the field however, it will be interesting to see how the AFL combats the likely abundance of lawsuits if action is not taken. Many people, including Peter Gordon strongly advocate for a no-fault scheme and only time will tell what the AFL do to combat this growing issue.
References
https://www.afl.com.au/concussion/timeline
https://www.supremecourt.vic.gov.au/areas/group-proceedings
https://www.mauriceblackburn.com.au/class-actions/
https://margalitlawyers.com.au/wp-content/uploads/2023/03/21721_Writ_filed_14.03.2023.pdf
https://www.aph.gov.au/DocumentStore.ashx?id=67f371b1-5b83-4aec-8e2d-849cd07b2695&subId=732801
https://www.legislation.vic.gov.au/in-force/acts/supreme-court-act-1986/109