Sports Law

With the turn of the last decade, the world of sports has undergone a significant transformation.

Amidst its growing commercialisation, major bodies and governing agencies are finding themselves increasingly captured by the profit motive as they seek out ostensibly perpetual growth.

But this growth comes at a cost. More than ever, the safety and well-being of players is being put aside whilst the organisations that are meant to protect them cut corners and forgo due process to pursue their own insidious interests.

Within this context, there seems to be a growing proclivity for litigation from the players and their representative unions, particularly in response to sports-related head injuries and concussions.

Background

Just last week, a judge rejected applications by the AFL and the Geelong Football Club to declass a concussion class action.

Cats’ premiership player Max Rooke is the lead plaintiff in the case, which seeks up to $1 billion in compensation for alleged damage suffered by players due to concussions who played AFL games between 1985 and March 2023. The claim alleges Rooke “suffered permanent, life-altering injuries as a result of concussion-related injuries, and due to the negligence of the AFL” in failing to adopt and enforce adequate safeguards consistent with evolving medical knowledge.

Though the action is yet to start trial, it has already galvanised broader conversations around the management and treatment of sport-related concussions.

For years, concussion was simply dismissed as a “part of the game” but this action elucidates that the tide has well and truly turned. In collision sports, in community fields and in the minds of former professional athletes and advocacy bodies, concussion is now understood to be a serious medical, ethical and legal issue.

In an extended article for The Guardian, several former AFL players raised awareness around the risk of concussion, detailing the crippling impacts of the extensive head knocks they suffered throughout their careers. Many still struggle with unprovoked aggression, depression and anxiety, preventing them from maintaining stable employment or family relationships.

The shift in public sensibilities in Australia is analogous to one worldwide. Notably, the NFL in 2013 agreed to a $765 million settlement after more than 4500 players pursued legal action accusing the league of wilfully misleading its players over the long-term impact of head injuries. Since then, CTE has been found in the brain of almost every single NFL player who has been examined post-mortem.

Similarly, earlier this year in the United Kingdom, a class action was brought against World Rugby, the Rugby Football Union and the Welsh Rugby Union by more than 1100 former players, who claim that the governing bodies were negligent in failing to take reasonable action to protect them from severe brain injuries.

With its international counterparts following suit, Australia, with its passionate embrace of contact sports, now finds itself at a crossroads – either accept a future in which governing bodies such as AFL are held accountable, or continue with piecemeal reforms that appear responsive, but lack pragmatic effect.

Given the significance of Rooke’s class action as well as heightened visibility, now seems a good time as ever to map out the terrain and analyse the incidence of sports-related concussion through the law’s lens.

Legal Framework

Because athletes and sports professionals are, for the most part, excluded from workers’ compensation schemes, compensation for sporting injury generally arises in the context of common law claims for negligence. These are complex claims, often involving long-term effects like CTE. For an injured person to receive compensation in a claim for negligence, there are three essential requirements that need to be established: Duty of Care, Breach and Causation.

In any sports-related negligence claim it should be noted that there is an assumption that the athlete has a full awareness of the associated hazards of the game, including any associated risks to their health and well-being. However, courts are increasingly recognising that the voluntary assumption or risk is not a complete defence – where an athlete was owed a duty of care and that duty of care was breached, then the defence fails.

Duty of Care

Sporting organisations such as leagues and clubs owe a duty of care to their players to protect them from harm. This includes obligations to warn of known risk, to implement safe practices, and to monitor and manage injuries, including concussions.

A landmark case in the UK previously found that the British Board of Boxing Control owed a duty of care to all boxers to provide regulations around medical treatment that were adequate for boxers’ safety and to ensure that they were complied with after a boxer suffered significant brain damage due to inadequate medical treatment and assessment.

Breach

It also needs to be satisfied that the relevant sporting organisation failed to live up to the standard of care expected by a reasonable person who owes a duty of care. What constitutes a breach in this context is ultimately factually based; however, the central question for the court is whether the defendant failed to take reasonable steps in light of what was known or reasonably known at the time. For example, a duty of care may be breached by failing to adopt appropriate guidelines, delaying the removal of a player from play after a head knock or inadequately trained medical staff. In the NFL case, it was alleged by former players that the league was aware of the dangers of repeated head trauma but did nothing to ensure player safety.

Causation

The final and most difficult element of a negligence claim is proving that the defendant’s breach of duty caused the plaintiff’s injury. The link between repetitive concussive or sub-concussive trauma and long-term neurodegenerative conditions (including chronic traumatic encephalopathy, dementia, and psychiatric injury) is scientifically plausible but medically complex. Courts must determine whether, on balance, an individual’s brain injury is meaningfully attributable to sports-related head trauma, rather than other risk factors.

Damages

If duty, breach and causation are established, damages might include past and future medical costs, loss of earning capacity, pain and suffering, and, in more extreme cases, compensation for neuropsychiatric decline.

Regulatory Responses

Most governing bodies are alert to the growing risks of concussion, including the AFL and NRL.

As recently as 2023, the AFL updated its concussion management guidelines to set out protocols for diagnosis, management, and return-to-play, including a graded loading program and increased conservatism, especially for younger athletes.

The NRL also has its own concussion guidelines, including head knock assessments, return-to-play times, removal from play, etc

In both leagues, players are required to leave the field of play and undertake a concussion test if they suffer a head collision and doctors identify a potential concussion. If the player fails the test, they cannot return to play for at least 11 days.

Meanwhile, ‘Concussion in Sport Australia’ acknowledges concussion as a public health issue extending beyond elite sports to all levels of participation. It provides a consistent framework for concussion management, emphasising the ‘’if in doubt, sit them out” principle.

While these responses are indicative of process, the current framework still remains fragile – with critics lamenting it as cautious, partial and reactive.  In particular, there are a variety of fault lines that can be drawn, which continue to beleaguer the effectiveness of legal recourse and regulatory action.

Temporal Scope of Knowledge and Reasonableness

What a sporting organisation “should have known” about the risk of concussion is highly contested. Medical research on the long-term effects of repeated concussions (especially sub-clinical concussions) has developed rapidly. But many clubs may argue that earlier in the 1990s or early 2000s, the science was less conclusive; that best practice guidelines were not yet established; or that resources constrained what was reasonable. In a claim for compensation, this temporal context will inevitably complicate the process of establishing that a sporting organisation breached its duty of care. The Rooke claim, for instance, spans decades, and will raise questions about what was known about concussion in say, 1990 versus 2010 versus 2020, and what would have constituted reasonable care.

Causation & Proof

The law demands proof that the particular injuries claimed resulted from the concussions sustained in sport—and that other intervening causes such as ageing, genetic predisposition and non-sport head trauma are not significant. Proving this requires strong expert evidence, and with this, there is a risk that some claims will fail if causation is partly speculative. While science has advanced significantly, there remain limitations in diagnosing CTE in living individuals; in distinguishing individual causation; in measuring subclinical impacts; in understanding interactions of risk (genetics, lifestyle).

Resources, Enforcement and Standardisation

Protocols are only as good as implementation. In community sports, junior clubs, or underfunded leagues, medical resources are thin; training of staff is inconsistent; and monitoring of compliance is weak. Even in professional sport, there are high-profile breaches—clubs fined for protocol violations, delays in SCAT testing, etc. Such incidents reveal the gap between formal protocol and lived practice.  Also, there is no single national enforcement agency governing concussions across all sports. The Senate inquiry has recommended such harmonised oversight—but it remains aspirational.

Ethical and Cultural Barriers

Sport culture often valorises playing through pain, endurance, and stoicism. Players may underreport symptoms; medical staff may face pressure to clear players for matches. There is also an institutional incentive to emphasise risk management rather than risk avoidance—protocols designed to protect liability rather than to safeguard health. These cultural norms may delay recognition or amplify injuries. The Senate inquiry, in fact, received evidence that sporting codes are often more concerned with legal liability than the health of players.

Is Government Oversight Necessary?

Whilst the government has historically deferred to sporting bodies to regulate major sports, the growing awareness around sports-related concussions and head injuries has opened up conversations about potential state involvement.

As indicated earlier, governing bodies such as the AFL and the NRL have, for the most part, taken their responsibility to protect players seriously – setting appropriate guidelines and protocol for concussion management. However, this model of self-regulation was never conceived with the threat of life-threatening injuries in mind, and as long as it is permitted, a conflict of interest will always exist between player safety and the profit motive. Whether the benefits of self-regulation outweigh that inherent conflict is a question for lawmakers to decide.

In a report published by the Senate Standing Committee on Community Affairs on head trauma in contact sports, the AFL, NRL and various other sporting organisations contended that the current approach to head injuries is adequate – emphasising that the primary concern is player health and wellbeing. Others, including athletes, families, and healthcare professionals, did not seem to share the same opinion, arguing that the league’s governing bodies are prioritising self-interest over player safety. They said the current approach is not fit for purpose and encouraged government intervention.

Looking Ahead

As we await the commencement of Rooke’s class action and the potential precedents it may set, it is clear that the future success of Australia’s beloved sports and the future well-being of its players hinge on the response of sporting organisations and the government.

It is clear now that concussion in Australian sport is no longer a medical concern but also a legal one. With class actions, statutory inquiries, evolving codes, and heightened public awareness, the moment has arrived when sport’s governing bodies must not only manage risk but anticipate liability and accept accountability.  At the same time, while these bodies emphasise the primacy of player safety and wellbeing, there will always be competing interests; therefore, it is up to the government to effectively navigate this model of self-regulation.