Risk, liability and protecting your own head in sport

In most organised sports, even those played by amateur athletes, the annual registration fee contributes to a whole range of important measures.

It might inject some administrative cash into a local club, to help operations. It might support coaches’ salaries, buy equipment, pay an affiliation fee to a competition or governing body, help pay the rent for a venue, or pay the bills for lighting.

One thing it should also do (and, in most cases nowadays, does) is contribute to a club, league or governing body’s insurance policy.

This insurance might help with health care for a player who sustains a particular type of injury – maybe a torn hamstring or a broken bone – by paying for some of their medical care: diagnostic imaging, clinical appointments and so on.

Today, professional athletes around the world are launching actions against peak sporting bodies to seek compensation for chronic mental health and neurological conditions.

It might even cover capital events: permanent loss of function, paraplegia or quadriplegia, even death.

But who covers the costs of the long-term impacts of neurodegenerative injury? Neuroscience is increasingly demonstrating that repeated concussions increase the risk of an athlete developing brain diseases like Alzheimer’s, chronic traumatic encephalopathy (CTE), Parkinson’s or motor neurone disease. Today, professional athletes around the world are launching actions against peak sporting bodies to seek compensation for chronic mental health and neurological conditions. In Australia, AFL players are taking action in the Victorian Supreme Court; in Britain, rugby players are doing the same.

In 2013, the American NFL reached a US$765 million agreement with thousands of former players who sued the league over head injuries.

For some, it’s the suggestion they might have CTEor other forms of dementia, like Alzheimer’s. For others, it’s the onset of mental health disorders which could be precursors of neurodegeneration.

For the pro, at least for now, compensation might be an outcome

At the top level, the challenge for pro athletes seeking to claim damages for the way their injuries have been handled is context-dependent and, even then, subject to a series of barriers.

The context matters: the way the British legal system will treat a claim is different to Australia.  Then there’s establishing whether liability exists.

While neurodegenerative injuries like CTE could be predicted, or forecast, true diagnosis is, currently, impossible without microscopic examination of brain tissue.

Ben Koh is a medical doctor, class actions solicitor at Shine Lawyers, and honorary associate at the University of Technology Sydney. He says, generally, the challenge for any claim of liability relating to athlete injury may include a litigant proving a code or club breached their duty of care; that athletes were not voluntarily assuming risk of long term neurological injury; and that the athlete’s participation and the circumstances they were exposed to is, or was, causative of their long term injury.

And there’s another hitch. While neurodegenerative injuries like CTE could be predicted, or forecast, true diagnosis is, currently, impossible without microscopic examination of brain tissue.

“The problem is, with CTE, you don’t diagnose it until much, much later on,” Dr Koh says.

“Before death and the CTE diagnosis, a lot of the symptoms are very vague. And there’s no real test, no objective test for it.”

So, at least medically, demonstrating that the way a player was managed during their professional career, would potentially be one of the challenges confronting class actions: more a question of probability based on available information – like symptoms – rather than in the presence of confirmed diagnosis.

In Australia, professional athletes in some of the nation’s top sporting codes are given certain guarantees and protections for injuries sustained while, essentially, performing their job, negotiated by player advocates with professional leagues or governing bodies.

“Your insurance is for the term of your contract, and usually a period afterwards – 18 months on average. So at the end of your career…you’re on your own again.”

Eric Windholz

“Collective bargaining agreements will provide an insurance and compensation regime,” says Professor Eric Windholz, a senior lecturer in Monash University’s law faculty.

“And the generosity of those schemes varies with the wealth of the sport: AFL and Australian cricket give pretty good coverage.

“As you move down to the part-time professional, as you move down to women athletes, as you move to elite athletes playing what I would call non-mainstream, Olympic sports, the coverage decreases.

“But even if I’m talking about AFL, Australian cricket, your insurance is for the term of your contract, and usually a period afterwards – 18 months on average.

“So at the end of your career…you’re on your own again.”

For professional athletes, whose job it is to kick, hit, or throw a ball, or indeed to pedal a bike, drive a car at speed, or ride a horse, legal recourse may be a way to claim compensation for the management of injuries during their playing career, once the insurance policy they were afforded on the job has expired.

In the AFL, the West Coast Eagles have already moved to adopt an expensive, but high-coverage sports insurance policy for its players. Reports in The Age newspaper also suggest other member clubs are seeking competition-wide adoption of such a high-coverage policy to provide for players and protect employers.

For the amateur athlete, you’d better protect yourself

“The insurance is not designed for long life and potentially long term traumatic brain injury, so if you’re playing at a community level – amateur level – then your insurance effectively becomes your private health insurance and Medicare,” says Windholz.

He’s referring to the insurance ‘coverage’ that might be described to a participant when they sign up to play sport at local level. Acute or chronic physical injuries, or capital events resulting in permanent loss of function or death might be provided for, but insidious conditions that may have a later onset – like neurodegenerative illness – aren’t.

Windholz explains that because it’s not a job – it’s  a recreational pursuit voluntarily entered into. Athletes are in the same position as if they experienced a home accident.

But prevention is better than cure, and with no cure for a range of neurodegenerative disorders in sight, the scientists Cosmos spoke to emphasise the importance of sports, and athletes, taking precautions to avoid brain trauma.

“There is minimal, if any, compensation for loss of earnings or loss of income potential, but you’re just basically in the health system that is governed by our public and private health insurance. Nothing special.”

Health insurance in Australia is ‘community rated’. Unlike other nations, like the US, a health insurer can’t ‘scrape’ a person’s medical history to bump up the price of their premiums. Instead, consumers need to avail themselves of the insurance coverage – now a tiered system introduced by the Morrison government in 2019 – for the provisions they require.

But prevention is better than cure, and with no cure for a range of neurodegenerative disorders in sight, the scientists Cosmos spoke to emphasise the importance of sports, and athletes, taking precautions to avoid brain trauma.

And while legal professionals too will look to see what comes of actions being taken in courts, those spoken to by Cosmos also take a view that, for the most part, governing bodies and professional competitions are taking appropriate measures to address the growing concern of the issue.

What’s left for science is exploring biomarkers and other indicators of neurodegenerative injury.

There’s at least one other great unknown on the radar for those in the field: sub-concussive impacts, the accumulation of low, non-symptomatic head impacts that over time lead to the onset of CTE.

Leon Harris is a Clinical Legal Educator at the University of the Sunshine Coast. Having previously worked as a solicitor and a teacher at a US-based sports academy, he returned to the law to research the legal implications of concussion in Australian contact sport.

While he’s encouraged by the measures being taken by governing bodies to reduce concussion risk, he remains concerned about the lack of measures to acknowledge sub-concussive impacts.

For context, research out of Europe and the UK suggests that repeated head impacts in soccer – for instance in heading the ball – could significantly heighten the risk of long-term neurodegeneration.

“I do actually believe they’re doing a pretty good job there and the information is out there and I think the public’s aware of it,” Harris says of the current concussion protocols in Australia.

“But when you actually try and get behind it and go, okay, well, what are you doing about warning people if the risk of these repeated sub-concussive impacts over the course of a playing career, there are zero mentions [of sub-concussive impacts] in their hundreds of pages of submissions to the Senate inquiry… It’s just not talked about.”

That may not be unreasonable, with so little data available tracking players over the course of a career. But now knowledge of sub concussive risk – particularly in relation to CTE – is emerging, the consideration for sporting organisations at all levels, may well turn to a question of how to protect themselves against potential future claims.

What’s left for science is exploring biomarkers and other indicators of neurodegenerative injury.

And yet that liability may evaporate, at least somewhat, if the risks of playing competitive sport – from being tackled, to falling on the ground, heading a ball, or riding a horse – are well known, and accepted by the participant.

“Most people know concussions are bad, but do they know the risk of accumulated sub concussive injuries over time can also give you a brain disease? It could be argued that risk is neither patent, nor obvious so a duty to warn of it then arises,” Harris says.

“If the sports don’t acknowledge that, possibly for fear of losing numbers in the amateur and junior levels, then this is a problem that will only grow. It is a difficult problem for the sports governing bodies but needs to be addressed.

“If the risk is more widely known, it is then open to everyone to accept or reject the option of playing. Many would still do so regardless. We love sport in Australia and nobody wants to see less people participating.

“But surely we should be told the risks.”

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