However, its past practices continue to haunt the league.
Earlier this month, player agent and concussion rights activist Peter Jess asked Worksafe Victoria, which oversees the AFL, to investigate the league for alleged negligence in dealing with concussion as far back as 2009. Specifically, Jess met with Nikola Josevski, a senior WorkSafe investigator, and provided him with a new complaint.
Jess alleges that the AFL owed players a duty of care and didn’t do enough to address clinical and sub-clinical concussions. The media has reported that Jess believes that the risks posed to players over the past decade were foreseeable and pointed to more than 30 players retiring because of concussions.
“Is that acceptable in any workplace? I don’t know any workplace that would accept that level of disability to its workers. This is not referable to workers compensation or common-law payouts,” Jess told The Age earlier this month.
“I don’t want to destroy the game – I want to make it safe.”
The AFL could certainly argue that it has made it safer by tightening its protocols, including introducing a minimum 12-day break for concussed players, Last year, it began allowing teams on game day to replace an injured or concussed player.
In his letter to Josevski, he highlighted the suicides of Danny Frawley and Shane Tuck, who were diagnosed with chronic traumatic encephalopathy.
Jess further alleged in his letter that “at all relevant times the AFL, in breach of Section 23 of the Act, failed to ensure, as far as reasonably possible, that players in the AFL, AFLW and second-tier competitions were not exposed to risks to their health and safety arising from the unsafe Return to Play Protocols in conduct of the competitions. The clinical evidence confirms that clinically concussed players need at least 30 days for the brain to normalise. The AFL allows players to return after 12 days and therefore this process is unsafe”.
Jess further claimed that the AFL “had warnings of both a general and specific nature during the relevant time and up to 10 years or more previously that players were being exposed to risks from unsafe Return to Play protocols, both locally and internationally.
“… Warnings from historic experiences within the AFL, such as the neurological impairments to players who had to retire from the accumulated impact of clinical and sub-clinical concussions such as Daniel Venables, Justin Koschitzke, Matt Maguire, Sam Blease, Sam Rowe, Koby Stevens, Kade Kolodjashnij, Jack Frost and many others that the AFL-AFLPA have a record from accessing career ending payments,” Jess wrote.
Jess concluded, writing that he requests “WorkSafe determine the AFL an unsafe workplace until such time as safe Return to Play Protocols and the multi-modality testing regimes and concussion passport are introduced.”
Meanwhile, the AFL is hoping to resolve litigation involving past behavior. The Age reported that “Peter Gordon, a prominent lawyer and former Western Bulldogs’ president, has been engaged by the AFL to detail how a fund would work.” If successful, players could access the fund for future medical care.
