Can the AFL Actually Beat Concussion Class Actions with these Stupid MRO Decisions?

[_Mike_]

But .. the class actions talk about the players being forced back onto the field after they were concussed, and duty of care to look after them after they were already already concussed. That sort of stuff.

Yeah, that is another issue all together. Once a player suffers concussion there's no one rule fits all approach to the severity/permanency of the injury. The Picken legal action will be a litmus test for the AFL and rules of the game.

If Boxing, MMA, etc. haven't been taken on for that

It comes down to the likely risk of harm occuring and whether the steps required to remove the threat are reasonable/achievable, reasonable forseeability of harm occurring by participating in a risk activity.

 

[Lavender Bushranger]

It comes down to the likely risk of harm occuring and whether the steps required to remove the threat are reasonable/achievable, reasonable forseeability of harm occurring by participating in a risk activity.

I know, and that's exactly what I'm questioning.

I don't think what the AFL are doing is going to mitigate the risk of legal action..I can't see how it would.

 

[Lavender Bushranger]

Yeah, that is another issue all together.

But that's literally what the current class action is about.


If there hasn't been any class actions about the game being too dangerous by now, why would they suddenly start flooding in?

 

[_Mike_]

But that's literally what the current class action is about.


If there hasn't been any class actions about the game being too dangerous by now, why would they suddenly start flooding in?

Understand, that will really be a case for the Court to decide whether or not the AFL took reasonable steps. Could the current action open a pandora's box.. perhaps...

This is not an easy question to answer. In the end the ones that come off second best are the blokes that have to give the game away and live with life long debilitating injuries.

 

[master bate]

But you're missing the point.

The point is, I repeat:

Are the AFL's actions really actually going to protect them against law suits? And if so, how?

I just don't see it.

I mean, the Job Ralph's of the world keep telling us this, but i fail to see how it is actually going to help.

Less concussions, less law suits.

I can't sit here and say the suspensions will stop concussions, but I think we are already seeing less dumping in tackles.

One big issue with the stats is that players and doctors drastically underreported concussions/head knocks back in the day and the players still are.

So we've got this lag that we're getting more reported concussions but really it's less.

We can't know at all if the suspensions are an effective deterrent until the sample size is far bigger to allow for how accurately the numbers are collected, as well as time for players to adapt.

Bumps causing concussions are still happening but look back at games from the good old days and the hits players took before playing on. The change of the bump rule has undoubtedly to me reduced the number of big hits.

Marking contests and further tighter regulation on ground ball contests (hello Rhyan Mansell) might not have happened yet but that doesn't mean the AFL haven't tried to do the right thing on bumps and have the right idea with tackles.

 

[Lavender Bushranger]

Marking contests and further tighter regulation on ground ball contests (hello Rhyan Mansell) might not have happened yet but that doesn't mean the AFL haven't tried to do the right thing on bumps and have the right idea with tackles.

If the AFL was doing this for the right reasons (ie. to do the 'right thing' by players), they'd have banned jumping into marking contests with a raised knee a long time ago.

 

[Inspecta Gadget]

These decisions aren't stupid.

They're exactly what myself and all the other parents of kids who aren't even born yet, who'll probably end up playing soccer anyway want, nay, demand!

 

[Lavender Bushranger]

These decisions aren't stupid.

They're exactly what myself and all the other parents of kids who aren't even born yet, who'll probably end up playing soccer anyway want, nay, demand!

That's fine. Don't necessarily disagree.

But how will they stop law suits?

 

[Power Raid]

Corporate veil will protect any AFL directors in this case, the AFL is a separate legal identity and it would be a very difficult case to establish that the AFL board of directors acted outside of their scope. However like I wrote in the Scicily thread, which describes the elements of negligence, the above sums up from a corporate responsibility.

the criminal negligence lifts the corporate veil and the "outside of scope" or "act of one's own folly" is not relevant under new legislation (the last decade)

 

[Power Raid]

But this is the thing, the current class actions are not about the game being risky. They're about not being protected from concussion in the sense that they were put back on the ground, didn't get rest when concussed, didn't get treatment or guidance around multiple Concussions, and weren't educated on the dangers of Concussion.

I could be wrong, but I haven't seen anything to suggest that there is any legal repercussions relating to the sport being too dangerous.

So I don't think the threat is the sling tackle. The threat is not caring for players properly when they get concussed.


But having said that, for argument's sake, let's say that they are trying to reduce the likelihood of people getting concussed.

Is suspending a guy for doing something that is already illegal, really doing that?

Granted the sling tackle and most 'dangerous tackles' have only become illegal recently.

But driving a guy forward in a tackle has always been illegal. Talking them high, or bumping them high has always been illegal. Whacking someone has always been illegal.

So considering you can fall on your head and get concussed in a marking contest, get kneed in the head in a marking contest etc. etc. etc. - would suspending guys for already illegal acts be something that a court of law would actually say 'Oh yeah, no worries, you guys are the hook. You've done everything possible to remove the risk from the game. You're not liable.'

So back to my original point - I can't see how suspensions for dangerous tackles, as opposed to free kicks, is going to reduce their liability.

If guys lodge a class action for getting repeatedly concussed in marking contests, like Matt Maguire or Sean Dempster - how does the AFL suspending guys for sling tackles reduce their liability?

It just doesn't add up.

from a civil perspective, insurance will cover the costs and no doubt premiums rise. With that the game will continue to evolve to a point we don't recognise it.

where it gets ugly for directors, is insurance companies will drag out cases and force directors to deny responsibility. This is where is criminal prosecution gets colourful.

One can't threaten "pay me out" or I will go criminal but there are many ways are reminding people of the option for recourse. This can force directors / encourage directors to settle. However the insurance company don't care if directors go to jail as long as the ultimate pay out is delayed.

My punt is we will see criminal prosecution in due course (within 20 years)

 

[Power Raid]

I just reread this.

Are you suggesting that these rule changes and this MRO nonsense, may be to reduce the AFL commission's personal criminal liability? And nothing to do with the 'good of the game' and the.class actions?

I would suggest people act in good faith most of the time and have the interest of the game in mind. However the legal climate is changing and to protect themselves, the game will change.

We have seen very quick suspensions and longer suspensions for "rough" conduct. Further clubs and players are accepting this new world.

Personally I like to see a safer work place

 

[Power Raid]

But even if they don't get suspended - head high contact and pushing in the back is, and always has been, illegal.

You're not allowed to do it and get a free against if you do.

Does suspending guys for it make the game safer? I don't think so.

suspension and fines alone won't work but they are a must

training and education are more effective

removing players from the game completely is a power that needs to be in place

 

[Roby]

I don't think this is about lawsuits.

This is about optics and participation. The AFL don't want parents choosing other sports over AFL.

 

[Demonic Ascent]

the decision tree and processes DIRECTORS who face criminal negligence is as follows:

1) identify the risk (ie sling tackle)
2) risk of injury (brain damage - severe)
3) probability (low on one occasion but high if multiple events)
4) identify control to mitigate risk
5) measure residual probability
6) refer risk matrix (outcome is still high as death or serious injury is possible)
7) implement controls
8) monitor controls for compliance and breaches

fail any steps above is likely to result in criminal charges

the civil risk still remains regardless but at least insurance will cover civil issues but one can't insure against criminal

You're living in cuckoo land if you think there will be criminal charges

 

[Power Raid]

You're living in cuckoo land if you think there will be criminal charges

many probably said the same thing before lethal or dismissed racism on the field as part of the game


workplace laws apply to all work places

 

[Demonic Ascent]

I know, and that's exactly what I'm questioning.

I don't think what the AFL are doing is going to mitigate the risk of legal action..I can't see how it would.

Probably not - but it gives their lawyers something to point to to at least mount a defense.

You're 100% right though, the lawsuits around negligence are largely based on the treatment of concussion, not the incidence of it. I guess the AFL can argue harsher penalties will alter behaviour - if you were automatically imprisoned for going 10k over the speed limit you'd probably get a lot safer driving but the punishment is disproportionate to the infringement.

 

[Demonic Ascent]

many probably said the same thing before lethal or dismissed racism on the field as part of the game


workplace laws apply to all work places

Ok mate you hang your hat on that, it's laughable that you actually believe AFL directors will be criminally prosecuted for negligence. There are no grounds at all for this to happen despite your fetished desire for it to occur.

 

[Lsta062]

That's the line we keep hearing... but explain to me how suspending people for already illegal acts, prevent CTE?

It's supposed to act as a further deterrent to reduce instances of concussion-causing acts. Getting yourself suspended is a disservice to your teammates after all. It also has a system to punish repeat offenders harsher than those with no priors. In the suspension period, they're basically prevented from doing similar acts onfield.

There are a couple of issues though:

• It doesn't really reduce instances of these concussion-causing acts by a whole lot from what I'm seeing.
• Top-line players (e.g., Brownlow favourites) seem less likely to be suspended even though their suspension would likely impact their team more than other suspensions.

However, adding an additional punishment like a suspension could give the AFL a better defence in proving duty of care. Although it doesn't seem to reduce incidents by a lot in reality, a lawyer could spin it to make it seem the AFL did its best to protect the players.

 

[Wallaby]

No, u could take the tackle out of the game, take the bump out of the game and u will stop a significant amount of injury... but is that the game anyone would want...

People watch basketball - a contested ball game wiuth no tackling a (very) limited body contact.

 

[Lavender Bushranger]

The continuing decisions to increase the number of players on the bench to speed up the game run counter to any attempt to deny liability. (imho)

It's an interesting point.

In a collision sport, making the athletes fitter and stronger, and bigger than ever - then changing the rules to make it faster for longer, isn't really a great idea if you're worried about people getting hurt.


Add to that... has the whole dangerous tackle thing really only become an issue since the AFL started altered the holding the ball rule?

These days, both the tackler and the player with the ball, want to go ground and have the ball held in to cause a stoppage. And the umpire seems to give them both an eternity to do it. Aside from the odd chase down tackle where a guy's head hits the ground, this is where and why most 'dangerous' tackles occur.


Again, how could suspending guys reduce their liability, when it's the AFL's desire for a faster game that causes this dangerous stuff?

 

[M Malice]

Wouldn't prevent concussion as concussion is from the brain rattling around the skull

Yes, I was being facetious, I did think it would have been obvious.

 

[melbun]

Methinks that AFL playing surfaces have become harder in the winter months due to modern drainage, turf replacement etc.
Harder surfaces mean that your head will bounce around a bit more when contact is made. Compare this with your head landing the slops/goo at the old Western oval (or Collingwood).
It is undeniable that grounds have become harder (firmer), hence more concussions.
A deliberate action with a consequence.
Not being a lawyer, I would have thought that this action would open up the AFL to more litigation.

 

[Kwality]

I don't think this is about lawsuits.

This is about optics and participation. The AFL don't want parents choosing other sports over AFL.

The AFL & money - they're worried.

 

[Kwality]

People watch basketball - a contested ball game wiuth no tackling a (very) limited body contact.

We would bring back high marking & individual contests. 18 players for 100 minutes, no interchange, resting in the pockets.

 

[Blueyboy74]

Methinks that AFL playing surfaces have become harder in the winter months due to modern drainage, turf replacement etc.
Harder surfaces mean that your head will bounce around a bit more when contact is made. Compare this with your head landing the slops/goo at the old Western oval (or Collingwood).
It is undeniable that grounds have become harder (firmer), hence more concussions.
A deliberate action with a consequence.
Not being a lawyer, I would have thought that this action would open up the AFL to more litigation.

You raise a most excellent and undeniable point which is conveniently overlooked by the AFL. I think it's indisputable that the playing surfaces these days are firmer due to advances in drainage etc and the removal of turf wickets from the centre square that saw that part of the ground, even at venues like the MCG, reduced to a bog in the winter months. You only have to look at the number of players who injure themselves upon landing after flying for a mark as evidence to support this. You barely ever saw that in the VFL era.

The AFL - whilst posturing that there is no greater priority than protecting the head of players - are hardly going to advocate for a return to a softer surface are they? With far more sophisticated defence strategies & capabilities employed by teams these days, this in conjunction with some of the bogholes seen in the 1980's and prior would result in record low-scoring and congestion and at the end of the day nobody wants that.