State of play – Chronic Traumatic Encephalopathy (CTE) and concussion related sports litigation

By Rachael Arnold, Holly Turner and Jessica Raupach

Introduction

With new and old fans transfixed by the Matildas at the FIFA Women’s World Cup and celebrating the riveting AFL/W and NRL/W seasons, 2023 was certainly a highly engaging year of contact sport. If you followed any of these competitions, you may have also noticed the presence of concussion spotters in the FIFA Control Room, AFL Review Centre and independent doctors in the NRL Bunker. You may have also heard commentators and players talk about blue cards, Head Impact Assessments (HIAs) and Return to Play protocols. 2023 was also a monumental year for the most topical issue currently facing the international sports industry: management of head knocks and concussion. Not only does it influence the rules of the game under which players are bound and disciplined, it impacts player welfare long after the final whistle is blown.

Historically, negligence claims arising from injuries sustained in contact sports have been rare, particularly in jurisdictions with ‘dangerous recreational activity’ defences. With the AFL defending a personal injury class action here in Australia, and the Rugby Football Union facing similar legal action in the United Kingdom, we are witnessing the emergence of a new type of claim brought by players against their former codes. While this may seem like a Pandora’s box of concussed sportspeople suing their sports, there are difficult breach and causation hurdles to be overcome and there is no guarantee the plaintiffs in these initial test cases will be successful. Sporting organisations and insurers all over the world are heavily invested in the outcomes.

This article looks at the current state of play for concussion management and related litigation/inquiries in sport and looks ahead to what we anticipate will unfold in 2024.

Repetitive head impacts in sport

Since the first documented case of chronic traumatic encephalopathy was reported in a retired professional NFL player,^[1] there has been a marked lack of consensus in the scientific community on the link between concussion and long-term cognitive impairment.  Chronic traumatic encephalopathy (CTE) is a degenerative brain disease considered to be associated with memory loss, mental health problems and behavioural changes. As CTE can only be diagnosed post-mortem, these symptoms can present as a traumatic encephalopathy syndrome during life.

In 2023, the international Concussion in Sport Group (CISG) released their sixth statement updating their definition of sport-related concussion as ‘a traumatic brain injury caused by a direct blow to the head, neck or body resulting in an impulsive force being transmitted to the brain…’. The CISG considers that extensive exposure to repetitive head impacts experienced by some professional athletes is ‘potentially associated’ with CTE but stopped short of confirming a clear causal link. The CISG is at odds with many other views, such as one of the Australian Sports Brain Bank’s main scientists, who reports ‘convincing evidence’ of repetitive head impacts causing CTE.^[2]  

We envisage that in 2024, more medical and legal focus will be placed on sub-concussion. This refers to repeated head impacts that do not cause clinical concussion symptoms at the time, but ‘may have a cumulative effect and cause debilitating issues later in life’ as suggested by The Royal Australian College of General Practitioners (RACGP).^[3] With increased research and public attention into mitigation and management of repetitive head impacts, driven largely by sporting codes, it appears it is only a matter of time before the evidence drawing a link between concussion, sub-concussion and CTE will accumulate.

What is happening on field now?

Despite there being ongoing medical debate, the international sporting industry appears united on addressing the physical risks posed by concussion to players, and the associated financial/reputational risks to clubs, insurers, team doctors and other stakeholders. This has taken the form of stronger penalties for players who engage in dangerous conduct, and the empowerment of independent doctors in the NFL and rugby referees to remove suspected concussed players from the field of play. Education campaigns and rule changes have also been enacted, including Rugby Australia recently confirming a grassroots trial to lower the legal tackle height from the shoulder to below the sternum. In 2024 and beyond, spectators can expect to see more technologies such as artificial intelligence monitoring head impacts, smart mouthguards measuring tackle force, and biomarkers like blood and saliva being collected to determine the extent of a concussion.

The September 2023 Australian Senate inquiry report into ‘Concussions and Repeated Head Trauma in Contact Sports’^[4] contained 13 recommendations, including for the government to fund independent research into the effects of concussion and repeated head trauma, and for national sporting organisations to explore further rule modifications that prevent and reduce the impact of concussion. Interestingly, the inquiry heard evidence of concussion under-reporting from players who feared being ruled out of a game or letting their team down and called for a cultural change to phase out the ‘win at all costs’ attitude, which prioritises sporting success over long-term athlete wellbeing.

With this report, the Senate set a benchmark for risk management and safety standards expected of administrators in contact sports. It holds importance for those who have suffered head injuries and assists to highlight the dangers for those who participate in at-risk sports.

Australian civil litigation

In 2022, the Victorian Supreme Court set a precedent in Ty Zantuck’s case^[5] against the Richmond Football Club and others. The ruling clarified that statutory time limitations, which restrict injured athletes from filing claims outside of certain periods, can be extended in specific circumstances.^[6] Relevantly, this case effectively removed a once widely accepted barrier for players with progressive diseases to bring negligence claims against their code and club.

Following this determination, two class actions were filed in the Victorian Supreme Court in 2023 against the AFL. On 4 March 2023, Jarad Maxwell Rooke^[7] (a former Geelong player) filed a claim on behalf of himself and others who played professionally between 1985 and 2023 and suffered concussions in training and/or games. On 17 March 2023, a second class action was filed by Shaun Smith, Darren Jarman, Katherine Tuck (widow of Shane Tuck) and other ex-players and dependents against the AFL, Richmond, Adelaide, Port Adelaide and Hawthorn football clubs.

When there is more than one case commenced against the same defendant arising from the same facts, they become ‘competing’. The court is required to determine whether only one of the class actions should proceed, and, if so, how.

On 6 December 2023, Rooke filed amended pleadings^[8] which, among other things, expanded the class to include ‘secondary victims’ (ie dependents and family members who suffered nervous shock). This means that all of the second class action members can join Rooke’s action, and it will be this claim which proceeds.

In summary, Rooke’s class allege that the AFL:

• failed to prevent concussion by changing rules of the game;
• failed to remove concussed players from the field of play and manage their concussion; and
• failed to warn of the risk of repetitive head impacts and concussion, including long-term cognitive impairment and CTE.

To succeed, Rooke’s class will need to establish the AFL had the actual or constructive knowledge of the risk of concussion and failed to take reasonable precautions against it. They will need to establish these failures amounted to a breach of the AFL’s duty of care in the circumstances. It is assumed the AFL will rely on the ‘voluntary assumption of risk’ defence, which the class members will also need to overcome.

The Rooke class action will be a test case for other sporting codes as to whether liability can be broadly found when each player’s playing history, knowledge, awareness and injuries differ to great extents. As the standard of care and medical knowledge has evolved significantly from 1985 to 2023, the Victorian Supreme Court will need to find common ground between all players to determine breach of duty, causation and distribution of damages.

Further afield in the United Kingdom, the Rugby Football Union, World Rugby and the Welsh Rugby Union will also face a class action in respect of concussive and sub-concussive injuries leading to permanent long-term damage to past players. A group representing over 250 ex-rugby players is applying for a group litigation order from the High Court in early 2024.

A new era of safety in contact sports

On 11 December 2023, the Victorian State Coroner John Cain published his findings in the inquest into the tragic death of former footballer Shane Tuck.^[9]

His Honour recommended, among other things, the AFL consider implementing rules and guidelines that limit the number of contact training sessions, empower concussion spotters to mandate the removal of players from the field of play, and mandate that independent medical practitioners attend every AFL/W game to assist club doctors in assessing head injuries.

While sporting codes may enact/amend concussion protocols in line with new expectations arising from the evidence presented to the Coroner’s Inquest and Senate Inquiry, enforcement of these protocols will be a key obligation that clubs and organisations must ensure to avoid future litigation.

Considering the Coroner’s findings, along with the world’s first diagnosis of CTE in a female athlete, Heather Anderson^[10], the focus will remain on safety in contact sport, particularly as female participation in grassroots to elite level contact sports continues to grow.

That’s the state of play at the end of December 2023. We will provide another update in the new year.