Footy Clubs And NRL May Be Liable In Brain Injury Lawsuit Class Action
Individual NRL clubs could be on the hook for compensation to players with brain injuries, as a law firm offers to host a class action lawsuit against rugby league's governing body.
Last week, the NRL was rocked by University of Sydney research finding evidence of Chronic Traumatic Encephalopathy (CTE) -- a degenerative brain disease linked to repeated head trauma -- in two Australian former rugby league players.
It was the first time the condition had been found in NRL players, but the condition came to prominence in recent years in America.
The National Football League settled a class action brought by hundreds of former players. As of June 2018, more than US $500 million in payments had been approved, with estimates it will reach over US $1 billion.
The National Hockey League in the U.S. is also dealing with its own CTE issues, last year settling a US $19 million suit with former players.
What Is CTE?
CTE has been diagnosed in contacts sports players including NFL, ice hockey, rugby and soccer. It can manifest as depression in younger people, while it "may be indistinguishable from Alzheimer disease" in older people, according to the USYD's Brain and Mind Centre.
"The only known risk factor for CTE is repetitive head injuries," the BMC said.
What legal action is being considered?
On Wednesday, Bannister Law and Cahill Lawyers announced they were investigating a CTE class action for NRL players. The firms said they had investigated "post-retirement medical issues among numerous former NRL players" and claimed "many of the symptoms experienced by these players are consistent with CTE."
“We will also allege that [Australian Rugby League], NRL and the clubs have had the resources both medical and paramedical to understand and implement protocols and policies that could and should have protected player welfare long before they were introduced,” principal of Bannister Law, Charles Bannister said.
He said a potential class action suit, which the firms have encouraged NRL players to join, would look at the liability of both clubs and associations "for what are, we will allege, reasonably preventable brain injuries."
The NRL declined to comment for this article.
Are footy clubs liable for these injuries?
Sports law experts told 10 daily individual clubs and the NRL itself could be held responsible for brain injuries -- and that other Australian sports could be in for similar legal action.
"Courts say you're an autonomous being and have to accept injury from obvious risk. It's very complex but one of the questions is, was there knowledge of brain injury or CTE?" David Thorpe, a lecturer in sports law at the University of Technology Sydney, told 10 daily.
"It's been known since 2004 that head contact brings on, in some players, a condition known as CTE."
Thorpe said a 2009 study drew an "undeniable link" between contact sport and CTE, and that in years since, many codes had brought in stronger concussion rules -- such as the NRL's mandatory head injury assessments.
"You could trace an obligation on the organisation or team ... that there was knowledge, so they should have put in concussion protocols," he said.
"At the present moment, things are well-catered for in possible concussions. Prior to 2004, this is really tricky [in legal terms], as there was knowledge of head contact bringing on brain problems. It's been in the literature since 1928, described as 'punch drunk syndrome'."
Dr Annette Greenhow, assistant professor of law at Bond University, said the NFL example was settled without a "definitive court judgement", but that part of the case included claims the league concealed concussion concerns -- which has not been alleged in any Australian context.
"Even if we did have a judgement from the United States, it would not be binding on Australian courts," she told 10 daily.
"Without seeing the pleadings or allegations by the potential plaintiffs, this is likely to come down to whether the sport’s governing body owed a duty of care, whether this duty was breached and whether this breach caused the plaintiffs' loss. There are going to be challenges for the parties."
How could this change Australian sport?
In a statement to 10 daily, Thomas Cahill of Cahill Lawyers said a potential class action could lead to big changes in Australia's footy codes -- saying "the NRL would need to look at making the wearing of headgear compulsory".
"As for liability between administrators and clubs the position is not whether concussion causes brain injury, because we think that it does based on medical studies in players both overseas and here in Australia, but whether the rules of the sport were appropriate to protect players and if they were implemented," he told 10 daily.
"The administrators are responsible for making rules to create a safe environment, and clubs are responsible for implementing those rules. In some situations, both administrators and clubs could be liable. We encourage players former and present who feel that repeated head blows have caused them issues to register."
Do other sports have similar issues?
While the BMC study only looked at two NRL players, other contact sports in Australia will be watching these events unfold. The BMC said other football codes might also have CTE concerns.
“The fact that we have now seen these changes in former rugby league players indicates that they, and likely other Australian collision sports players, are not immune to CTE," the study's lead author, Clinical Associate Professor Michael Buckland said.
Former rugby star Peter FitzSimons told 10 daily last week the rugby league news was "simply confirmation of what we all must know must be there" and said other sports may have similar concerns.
"When I was playing rugby and the rugby league guys of my generation, I think we were all naive enough to think it was only boxers who could sustain brain damage," he said.
Associate professor Alan Pearce, of La Trobe University, told The Age last week that "it doesn't matter what the sport is, where the injuries occur, if you’re getting repeated hits to the head, your risk is increased." Several AFL players have called on their league to improve its concussion policy.
Other sporting codes may be in the firing line from future class action lawsuits, Thorpe said.
"An employer must provide a safe working environment."