Chapter 6Remediation and support
6.1This chapter provides an overview of the key sources of compensation and support that currently exist for players, including those provided through collective bargaining agreements, private insurance arrangements, government supports, hardship funds, and the legal system.
6.2The chapter then highlights the deficiencies with the existing arrangements that were raised by inquiry participants, including the general exclusion of sportspeople from state and territory workers’ compensation schemes, the absence of a national injury insurance scheme, inadequate supports provided by sporting organisations, inadequate private insurance, and barriers to legal remedies for concussion and repeated head trauma-related claims. The chapter concludes with the committee’s view on these issues and its associated recommendations.
Key sources of compensation and support
6.3This section provides an overview of the existing sources of compensation and support available to sportspeople in Australia.
Injury payments
6.4For those sporting codes with organised players’ associations, such as the National Rugby League (NRL) and the Australian Football League (AFL), it is common for collective bargaining agreements to be in place that provide payments where a player sustains an injury during training or match play, resulting in a loss of income. In some cases, these agreements can also cover a player’s engagement in club and competition-endorsed activities. Importantly, for players who are not full-time professionals, including many women who participate in elite-level sporting competitions, some agreements also cover lost earnings from non-sport activities.
6.5Although the provisions governing these payments can be complex, they generally cover income from lost matches—sometimes subject to a reduction or cap—with retainers paid while players are under contract. Time limits generally apply to these payments, such as 104 weeks, and lost opportunities to earn prize money are not usually covered. Further, significant excesses can attach to the coverage, such as the initial 14-day period off work not being included.
Hardship funds
6.6A number of sporting codes, such as the AFL and the NRL, have established hardship funds to assist their players. Payments from these funds are usually discretionary and are designed to alleviate hardship only—that is, they are not created to provide adequate compensation for their players.
6.7The below three sections provide a brief overview of the hardship funds currently in place to support players who have participated in the AFL and NRL competitions, as well as professional players of rugby union.
AFL Players’ Injury and Hardship Fund
6.8In early 2018, the AFL Players' Association established the AFL Players' Injury and Hardship Fund to support players that transition out of the game with career ending injuries and who require longer-term medical support, as well as those who suffer illness or financial hardship during their retirement. It is administered by the AFL Players' Association and is funded by the current playing group through a revenue sharing arrangement set out in the collective bargaining agreements.
6.9The fund provides a range of benefits to former AFL, AFLW, and Victorian Football League (VFL) players—some of which may support players with concussion and repeated head trauma‑related injuries. These include:
lifetime health care—reimbursement of medical costs, but not for those related to concussion or brain trauma;
past player hardship—financial assistance for members experiencing financial hardship due to illness, injury or wellbeing issues;
hospital excess reimbursement—reimbursement of any excess paid for a hospital stay or procedure conducted in hospital;
football-ending injury payment—payment for players who exit the game due to an injury sustained during employment as an AFL footballer which prevents the player from playing at senior level in any competition thereafter; and
delisted injury player payment—payment for players who are unable to complete fulltime work in the first 6 months after their delisting due to a football injury which has been identified in the player’s exit medical.
6.10Since its establishment, the fund has financially supported 896 players to 2022. The AFL Players' Association observed that there has been a significant increase in the number of football-ending injury applications related to concussion in recent years. For example, these accounted for 63 per cent of the successful football‑ending injury applications in 2021 compared to four applications for concussion injuries prior to 2021.
6.11The AFL Players' Association submitted that it is seeking to improve the fund and has put forward a number of proposals, including:
making all benefits available to AFLW alumni members;
expanding the lifetime healthcare program by increasing reimbursement limits and the range of eligible treatments;
introducing preventative physical and mental health and wellbeing programs; and
providing greater support for the increasing number of AFLW alumni members.
6.12The General Manager of Legal and Regulatory at the AFL, Mr Stephen Meade, also commented on these proposals to expand the supports available to former players:
We are progressing with a proposed significant expansion of the financial support that is available to former players and we're currently discussing those proposed arrangements with the AFL Players Association as part of the collective bargaining agreement arrangements, so there is some support and we are very much moving towards providing an increased level of support to those who need it.
NRL’s Injury Hardship Fund
6.13The NRL’s Injury and Hardship Fund was established to provide payments and support to players who experience financial hardship as a result of suffering a career ending, or other serious injury, while performing obligations under their contracts. This includes players who have been forced to retire due to concussions and repetitive head trauma.
6.14The fund may assist players to maintain their private health insurance and cover gap payments to enable their access to necessary medical treatments that could enable the return to meaningful employment. The fund is accessible to both current and retired players; however, applications generally must relate to injuries suffered after 31 October 2017.
6.15The fund is financed by arrangements agreed between the Rugby League Players’ Association and NRL as part of their collective bargaining agreement, and funds not expended during a season, or term of agreement, are rolled over.
Rugby Union Players’ Association’s Hardship Fund
6.16In 2007, the Rugby Union Players’ Association established a hardship fund to provide past player members and their family members with financial assistance in the event of serious hardship. Past players are able submit applications for financial assistance on a range of issues, including psychological support and wellbeing counselling. Rugby Union Players’ Association noted that, while current players also have access to confidential clinical psychology sessions, funding limitations have restricted its ability to provide the same level of support to former members.
Private health and other insurance
Health insurance
6.17Collective bargaining agreements commonly place contractual obligations upon players to take out and maintain, at their own expense, top level private health insurance for the terms of their playing contracts. Clubs and leagues generally pay any excess medical costs, after private health insurance and Medicare contributions, incurred for treatment associated with an injury incurred during training or match play. Commonly, these obligations on clubs and leagues continue for specific periods after a player’s contract is terminated—generally between six and 18 months.
Total and permanent disability insurance
6.18A number of sports provide their players with total and permanent disability (TPD) insurance, and some superannuation plans also provide TPD insurance coverage. Eligibility for TPD insurance payments varies from plan to plan; however, it generally depends on two factors: the permanency of employment at the date of disability; and the degree and permanence of the acquired impairment. And like most insurance contracts, TPD insurance also commonly involves the incurrence of a waiting period.
6.19These requirements can result in the exclusion of players on short-term contracts as well as those with various debilitating long-term injuries and who may be suffering the severe effects—but not necessarily total and permanent disability—of incurring concussions and repeated head trauma.
Medicare, the National Disability Insurance Scheme, and other government supports
6.20Like other Australians, professional sportspeople can access Australia’s public hospital system and the Commonwealth’s universal health insurance scheme, Medicare. This is an exception to the general principle that Medicare does not cover medical expenses arising out of work-related activities, which are normally covered under the various workers’ compensation schemes. Affordable and timely support through the public health system and Medicare, however, is not guaranteed, and people commonly experience long wait times for treatment at public hospitals and can also incur significant gap payments.
6.21Depending on their disability, professional players may also be able to access the National Disability Insurance Scheme (NDIS) and others forms of social security should their injuries result in them being unable to support themselves. Importantly, however, a person must be under the age of 65 to apply for support under the NDIS. This requirement can preclude players who develop severe and disabling symptoms later in life, and those individuals with symptoms that may not be severe by their mid-60s, but which continue to worsen over time—including a number of neurodegenerative diseases.
Torts and crimes compensation through the courts
6.22Players can also seek compensation through legal action in tort and crimes compensation legislation—if a player is injured as a result of a criminal act, or omission, of another person. For example, where there has been fault on behalf of a club or sporting body, an injured player may be entitled to pursue a common law claim for negligence. Such claims can attract significant compensation—for example, in Victoria, the current caps on common law damages are $660,970 for pain and suffering damages and approximately $1.5million for economic loss.
6.23Further, Victoria does not cap medical expenses under common law and claims for negligence and other compensation, such as for the provision of gratuitous care, may be claimed. Notwithstanding this, these legal processes are commonly slow, cumbersome, and costly, and have an uncertain outcome. They are generally only relied upon when existing insurance arrangements are inadequate.
Current and former class actions
6.24Both domestically and internationally, there has been an emerging trend of litigation from former athletes suffering the long-term effects of concussions and repeated head trauma. Domestically, a class action was lodged by MargalitInjury Lawyers in the Supreme Court of Victoria earlier this year on behalf of all professional AFL players who sustained concussion-related injuries through head strikes while playing or training between 1985 and 14 March 2023.
6.25Upon lodgement, more than 60 former players had come forward to join the class action, which is seeking about $2 million per player, plus medical expenses. It was estimated by Margalit Injury Lawyers that total costs to the AFL could be close to $1billion. A second class action was also subsequently filed in the Supreme Court of Victoria by Griffins Lawyers against the AFL and four clubs on behalf of former players who allegedly suffered brain injuries after sustaining repeated concussions during gameplay since 1990.
6.26A number of class actions have also been initiated in various international jurisdictions. For example, in the United States of America, there were a series of class actions brought by players against the National Football League (NFL), resulting in a $1billion settlement. In these actions, players alleged that the NFL had 'failed to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from players'.
6.27In the United Kingdom, a class action is currently underway across the various rugby codes. In this action, players are alleging that 'rugby's governing bodies negligently failed to protect them from concussion and non-concussion injuries that caused various neurological disorders, including early onset dementia, Chronic Traumatic Encephalopathy (CTE), epilepsy, Parkinson's disease and motor neurone disease'.
Deficiencies of existing insurance, compensation, and support arrangements
6.28Connectivity Traumatic Brain Injury Australia (Connectivity) an Australia-wide not-for-profit working to improve outcomes for people with traumatic brain injury explained to the committee that support for players affected by concussions is variable. Connectivity explained that the level of support often depends on the level of competition of the sport that is being played (such as community vs professional), resources available to the sporting club (club policies, medical support staff such as team doctors, physiotherapists), as well as the financial resources of the player themselves.
6.29This section discusses a number of issues raised by inquiry participants regarding the existing insurance, compensation, and support available to players – both past and present. Evidence to the committee highlighted inadequacies in funding and other supports provided by national sporting organisations, issues regarding exclusions from workers’ compensation schemes, inadequate private insurance arrangements, an absence of a national injury insurance scheme, and limitations with seeking compensation and remedies through the legal system.
Inadequate support provided by sporting organisations
6.30The committee heard from various inquiry participants about the serious inadequacies in support, financial and otherwise, provided by sporting organisations, to former players and their families, who have been affected by concussions and repeated head trauma in their sport.
6.31Concussion Australia considered that sporting organisations, as well as others, have failed to adequately support their former players and that their foremost concern was legal liability:
At this stage all sporting associations (and stakeholders at large: governments, parents, coaches, society) have failed to support former players living with concussion. From a financial perspective, the people who are most affected are those who never made large sums of money as professionals yet remain affected by concussions they sustained during their career.
The pending concern of associations and clubs in our view remains with legal liability compared to supporting current and former athletes with concussion and concussion related injuries.
6.32Neuroscientist Professor Alan Pearce, who has assessed hundreds of individuals with concussion and repeated head trauma at all levels of sport over the past 15years, indicated there is very little long-term support available to retired athletes at all levels. He highlighted that many retired players noted they were promised to be 'looked after' by their clubs but were subsequently forgotten or ignored. He also pointed out that for community level players, there is no formal support and many of these individuals suffer in silence. Professor Pearce also explained that supports for former professional athletes are also limited:
For retired professional players, player associations may provide a triage service whereby a distressed retired player will call and the player association will provide several providers for the player to access (paid for by the association). However financial support is finite and when a player has used their allocation, they are unable to continue support, unless life threatening, as in the case of a number of high-profile retired athletes who have attempted to self-harm or suicide.
6.33MrAlan Blackwood, Policy Director at Young People in Nursing Homes National Alliance (YPNHNA) considered that compensation and support provided by major sporting codes ‘fall well short of anything meaningful’. MrBlackwood noted that, invariably, those that are severely injured rely on charity and donations through their own networks for support and that this is inexcusable in the realm of professional sport:
… Recovery efforts continue to rely on charity. With people that are severely injured, invariably you'll see a GoFundMe page pop up and there will be an outpouring of support from friends and club mates, but it's never enough. It's very tokenistic and really doesn't go any way towards funding any sort of recovery. It's actually inexcusable that in a realm of professional sport, as we've been hearing in this inquiry, people who sustain profound injuries are forced to rely on charity or underfunded code schemes.
6.34Miss Lydia Pingel, a former AFLW player in the top women’s league in Queensland, who continues to suffer a range of impacts after being medically retired from the sport due to multiple concussions, observed that the long- and short-term supports available to affected players is majorly lacking:
… support is basically non-existent for the short and long term of past and present players affected by concussion and repetitive head trauma particularly if you are not a paid professional athlete. I have completely navigated and researched this space on my own and through my own efforts. This needs to change because concussion doesn’t discriminate in age, gender or level playing/competing at, it is not an exclusive injury that only the elite suffer.
6.35Ms Kirby Sefo, a former Australian Rugby sevens and Australian Wallaroos player, who also continues to deal with the ongoing impacts of repetitive head injuries throughout her professional career, also explained the lack of support she received after retiring. Ms Sefo observed there can be disparities in post‑retirement support available to professional female athletes, compared to their male counterparts.
6.36In her testimony to the inquiry, Mrs Anita Frawley, widow of the late AFL player Danny Frawley, raised the question:
What could be more of higher priority for the competition than looking after the individuals on whose shoulders the success of the game now stands?
6.37Mrs Frawley advocated for a health and support scheme for those that are potentially suffering CTE and dealing with its consequences. She told the committee ‘we must wrap our arms around’ those suffering, as well as their families to provide hope for the future. She concluded her evidence by emphasising that care must be prioritised:
We must act now to reduce the instances of this happening to other families in the future. For me, this is not about blame or justice-seeking; it's simpler than that. It's just about care—caring for the human beings that have given their lives to the sport they loved. Only by prioritising care will our sporting bodies honour the responsibility to protect and support our athletes during their careers and long after they have retired.
6.38Mrs Katherine Tuck, who tragically lost her late husband and former professional AFL player Shane Tuck in 2020 after his battle with CTE, also referred to the broad lack of support for former footballers who have suffered the effects of head trauma, and noted how this extends ‘detrimentally’ to the families of these individuals.
6.39In her submission to the inquiry, Mrs Tuck detailed the limitations and insufficiencies in support provided by Shane’s former club, the AFL and the AFL Players’ Association throughout his retirement. Mrs Tuck acknowledged that whilst the past two years have seen a better focus on concussion policies for current AFL players, she flagged that the avenues for past players and their families to seek help and information, remain unclear. MrsTuck shared her sense of isolation throughout this process, and urged change so that other families of players affected by head trauma do not have the same experience.
6.40Mr John Hennessy, who is on the board of the Community Concussion Research Foundation but appeared before the committee in his private capacity, flagged the lack of care for affected retired AFL and AFLW players and acknowledged the devastating impacts this can have on families:
There's little care for retired players, many of whom are falling through the cracks with no workers compensation, no income protection, and, in many cases, some heart-wrenching stories of personal anguish and of families being destroyed, domestic violence et cetera. There is no support for many of those players from the AFL or AFLW. The care is not there.
6.41Mr Hennessy also highlighted the significant disparities that exist between the corporate income of the AFL and the amount that was being spent to support retired players:
The AFL is the most-watched sport in Australia. The corporate income of the AFL, not including club income, in 2022 was $944 million and, of that, they spent $1 million on servicing the 5,000 retired players, just over half of whom have long-term injuries. The TV rights have increased massively from $156 million in 2011 to $642 million projected in 2025. The AFL pays no income tax but imposes a massive cost on the Australian community.
The culture of the AFL is to protect the brand, protect the game, maximise the public appeal of the game. It comes at a tremendous cost. Lives are being destroyed; player care is sacrificed.
6.42Dr Alexandra Veuthey, an expert in the regulation of concussion in sport noted that players’ associations, along with other foundations and medical centres have supports available for players affected by concussion and repeated head injuries, but proposed that these support networks must be developed and better publicised.
Exclusion from state and territory workers’ compensation schemes
6.43In each Australian state and territory, workers’ compensation mechanisms exist to provide compensation to employees who are injured in the course of their employment. These statutory schemes provide 'no fault' compensation primarily by way of lump sum compensation, income support, and payment of medical treatment and expenses.
6.44While legislation varies between each jurisdiction, athletes are generally ineligible to receive workers’ compensation for injury sustained in the course of playing professional or semi-professional sport, including for the long-term impacts of concussion and repeated head trauma. It is understood that the history behind this deliberate exclusion was due to financial considerations, with clubs and governing bodies unable to afford such workers compensation premiums.
6.45A number of inquiry participants were critical of these exemptions. For example, Dr Eric Windholz, a senior lecturer in the Faculty of Law at Monash University with expertise in sports law and the application of regulatory theory to professional sport, gave evidence in his private capacity. He said:
Professional sporting organisations are employers and their players are employees. Under work health and safety law, employer sporting organisations have a statutory duty to do what is reasonably practicable to prevent injuries to their employees. But eliminating all injuries is not a realistic expectation, especially in contact sports, so we need to consider the insurance arrangements that exist to support injured players. My submission is that existing insurance arrangements for professional players are inadequate, are inequitable, and in some cases may operate in breach of workers compensation laws.
6.46Dr Windholz also highlighted that the current arrangements stand in 'stark contrast' to those in place in New Zealand where its accident compensation scheme makes no distinction between sports-related and non-sports related injuries. He further noted that in the Australian context:
… the exclusion of professional players from workers’ compensation is an exception to the principle of universality that underpins the schemes. It has attracted widespread academic criticism, being variably described as 'manifestly unjust', 'anachronistic', and 'anomalous'.
6.47The founder of Headsafe, Dr Adrian Cohen, highlighted the inconsistent approach to insurance arrangements across dangerous occupations in Australia. He said:
Crane drivers, bomb disposal experts and cross-country truckers are covered by workers compensation because of their 'dangerous professions' but not professional footballers.
6.48Margalit Injury Lawyers said in its submission to the inquiry:
Athletes most commonly enter professional sports as children, teenagers, or young adults. This is often before the age of 25, before the brain has fully matured. Heavy expectations, socially and from family members, can be well entrenched by the time the athlete embarks on a professional sporting career. In many cases, the prospect of a professional sporting career is associated with an expectation of financial security and for some, an escape from poverty.
These pressures, coupled with the young age at which a person becomes involved in sport, may make it difficult for a professional athlete to appreciate the true risk and long-term impact of concussion related injury.
To then combine the above risk factors with the known power imbalance of an employment relationship, as well as the enormous cultural pressure to assist one’s team to win, leaves professional athletes particularly vulnerable. In such circumstances, it is entirely appropriate that these professional athletes are afforded legal protection by way of a statutory compensation scheme.
6.49The Young People in Nursing Homes National Alliance (YPNHNA) submitted that for people sustaining catastrophic sporting injuries, Australia’s existing insurance system offers little hope:
… this hodgepodge of funding and insurance arrangements for catastrophic injury means that Australians who sustain catastrophic brain and spinal cord injuries from sporting activity have worse outcomes than those who sustain equivalent injuries at work or on the road.
6.50Professional Footballers Australia highlighted the growing concern for the health and safety of past players, whose careers span back decades, and the ineffective compensation arrangements that exist currently:
While there remains a growing call for professional players to be covered by workers compensation, there is equally growing concern for the health and safety of past players; players whose careers span back decades, before insurance protection agreements were in place, and when medical care and the understanding of concussion or signs of concussion were not comprehensively developed or understood. The only avenue available to players who are negatively and chronically impacted by past concussion is to pursue legal action through the courts; something that is costly, distressing and pits the considerable resources of sporting organisations against those of an individual.
6.51Dr Windholz also argued that exclusions from workers’ compensation schemes in a number of Australian jurisdictions may be ineffective and in breach of the law:
Every state and territory has its own workers compensation scheme. They are broadly similar but they have important and significant differences. Each scheme purports to exclude professional sportspeople from their scheme, with some exceptions, as was mentioned—jockeys, boxers in some jurisdictions. In my analysis of the schemes, though, I have concluded that the exclusions may be ineffective in a number of jurisdictions.
In New South Wales and Tasmania the exemptions are effective to exclude professional sportspeople only if their contracts remunerate them only for participating in the sport—training, travelling, participating in the sport. If their contracts remunerate them for activities other than participating in their sport, for example promotional, marketing, community activities, I have concluded that the exemption from workers compensation is not effective.
So if players have contracts that cover both participating and promoting, then my argument is that they should be covered by workers compensation and if the clubs have not taken out workers compensation policies they are in breach of the law.
Inequitable for taxpayers
6.52A number of inquiry participants highlighted that, due to being excluded from state and territory workers’ compensation schemes, costs are imposed on the Australian taxpayer and society more broadly. For example, Margalit Injury Lawyers said:
A failure to appropriately protect, support, and compensate professional athletes not only poses risk to the player, but to society. As it stands, Medicare and the NDIS foot the vast majority of costs associated with such injuries. It is our submission that such costs of treatment ought to be borne by a statutory compensation scheme, contributed to by the employer clubs and sporting bodies that stand to profit from such sporting activities.
6.53Dr Windholz argued that, in the absence of workers’ compensation schemes, the primary medical insurance obligation transfers to Australia’s universal health care insurance scheme, Medicare—shifting the obligation from the employing sporting organisation and state governments to taxpayers and the federal government.
6.54Mr Leon Harris submitted that the impacts that neurodegenerative disease has on its sufferers, their families and friends, and the broader health care system were 'enormous'. He noted that, during 2018–19, it was estimated that almost $3billion of health and aged care expenditure was directly attributable to the diagnosis, treatment, and care of people with dementia, and that contact sports participants were up to four times more likely to develop such a condition.
Suggestions made by inquiry participants to address the issue
6.55A number of inquiry participants made various suggestions to address this problem. For example, Margalit Injury Lawyers called for the establishment of a statutory no‑fault compensation scheme, at either the state or federal level, for concussion‑related injuries sustained by professional sportspeople. It proposed that such a scheme would provide for 'reasonable medical and like expenses, weekly payments, and an impairment benefit lump sum payment'.
6.56In its submission to the inquiry, Shine Lawyers highlighted that the deliberate exclusion from workers’ compensation schemes was, historically, due to financial considerations—with clubs and governing bodies being unable to afford the associated premiums. It questioned whether this approach remained appropriate in contemporary Australia, where sporting clubs and bodies have commercialised, and recommended that an investigation be undertaken regarding the affordability of sports people being permitted back into workers’ compensation schemes.
6.57Dr Cohen of Headsafe highlighted the potential benefits resulting from the government taking a leadership role in compensation and insurance, while also seeking contributions from other major stakeholders:
… you've got a public health issue that crosses education and crosses sport that needs to be funded and there are examples in other areas of insurance where the government has taken the lead in this as a fund or a pool but making those major stakeholders like the sports actually contribute.
The good thing about that from their point of view is that they don't have to say, 'This is our problem,' or 'We caused it.' They get to say, 'We recognise there's a problem here, and we want to contribute to the solution.' So instead of blaming us for this, they can put their hand up and say, 'We'll put money into it,' because if you try and make them pay for it themselves, either the sport will go bankrupt or they will be unable to cover it with an insurance burden.
6.58Dr Cohen suggested that a good example of how to effectively insure sports participants, both amateurs and professionals alike, was provided by the no-fault accidental injury compensation scheme run by the Accident Compensation Corporation (ACC) in New Zealand. This scheme provides financial compensation and support to citizens, residents, and temporary visitors who suffer personal injuries—includes sports injuries—while in New Zealand. It covers medical treatment; income replacement; social and vocational rehabilitation; and ancillary services considered part of rehabilitation, such as transportation and accommodation.
6.59Notwithstanding these supports that the scheme provides, Dr Doug King PhD noted the following:
Any reported concussion in excess of a year duration is declined from any support or rehabilitation services under the ACC scheme as people are deemed to have had recovered from a concussion by then. In regard to the long-term support for players who report ongoing issues such as early onset dementia or other related neurological problems, there is no system in New Zealand that is funded to directly support this cohort with these issues.
6.60Dr Windholz argued that insurance and compensation arrangements for professional sportspeople should be 'no less than that provided to other Australian workers'. He contended that the starting point should be their inclusion in workers’ compensation schemes—with exemptions conditional upon alternative compensation mechanisms that are no less generous than those applying to other Australian workers and which provide long-tail coverage for concussion and other long-term—and long-latency— injuries.
6.61Dr Windholz noted that precedents exist around which such a system could be built. For example, he submitted that state and territory workers' compensation schemes provide for employers applying to the relevant regulator for a license to self-insure. To be eligible for such self‑insurance, employers generally must meet minimum requirements regarding size, financial strength, and claims management and rehabilitation capability; and also have a satisfactory work health and safety record and re‑insurance cover.
6.62Dr Windholz also suggested that this approach could occur at the national level, noting that self-insurance is available under the national Comcare scheme. He argued that this scheme could be extended to sporting organisations to provide a national workers’ compensation option for the various national sporting codes. He also proposed the potential of linking self-insurance to ASC recognition, and thereby 'integrating and leveraging the role of the ASC as the lead Australian Government agency responsible for supporting sport and building its governance capability'.
Inadequate private insurance arrangements
6.63In response to professional players being excluded from workers’ compensation schemes within Australia, many have been encouraged to put in place their own private insurance arrangements—either individually or as collective players’ groups. A number of inquiry participants responded by highlighting the shortfall with this approach.
6.64For example, Shine Lawyers outlined a number of drawbacks for players looking to take out total and permanent disability insurance and/or income protection insurance, including:
brokers are generally required to negotiate the terms of an insurance contract or product to ensure that they include brain trauma in their coverage;
insurance policies need to be current at the time of an injury—they do not assist individuals when symptoms develop if the policy has concluded;
there is an additional responsibility on players to seek advice, which many will not do or may not be able to afford;
tailored policies can come at a cost, which some may not be willing to incur or be able to afford;
a number of insurance policies now specifically seek to CTE, and most exclude mental health injuries from their coverage;
income protection policies often only apply for a period of two years and individual ones only go to 65 years — such policies are unlikely to assist those people with a late diagnosis or with their treatment, care, and support beyond this age;
many players do not recognise the need to include a trauma policy and would need advice on whether the contract specifically covered these injuries;
disclosures about previous concussions may prevent future cover for this type of injury and failure to disclose could subsequently lead to benefits being denied; and
policies do not cover children or those not working.
6.65In their evidence to the inquiry, the RLPA noted that, although players are covered by death and total and permanent disablement insurance policies taken out by the NRL, these policies do not cover head trauma. The RLPA also submitted that, based on their discussions with the NRL and various insurers, it would be 'very challenging' to secure insurance for concussions and head trauma.
6.66Margalit Injury Lawyers highlighted the deficiencies of existing insurance policies within the AFL for death and permanent disablement:
Often, these insurance policies do not adequately compensate players suffering from the long-term effects of concussion related injury, as benefits may not be available to players after their contract has concluded, or concussion may not be included in the death and permanent disablement policy.
6.67Professional Footballers Australia submitted that under the professional league’s collective bargaining agreement, various insurance policies must be in place. Notwithstanding this coverage, it said:
While these policies provide temporary relief, they do not support players affected by the long-term impacts of concussion and repeated head trauma. Moreover, the level of coverage these arrangements offer players is a question of financial capacity for the sport to precure a policy and the leverage of players. As such these arrangements are often a source of conflict and tension between athletes and governing bodies, making them far from certain and reliable.
6.68The General Manager of Head Trauma at Shine Lawyers, Ms Jamie Shine, submitted that insurers are denying legitimate claims for compensation, and compared the existing situation to that of the tobacco industry’s historical denial of the links between smoking cigarettes and the subsequent development of cancer.
6.69Dr Windholz commented:
… when one gets to the part-time professional player for whom the greater risk from injury is to their non-sport income (which is the case with many women players), private insurance arrangements can be expensive and with significant excesses.
Moreover, private health insurance is tied to the length of the playing contract. Numerous examples exist of players struggling with injury long after their (comparatively) short careers – and any insurance payments - have ceased. This has been especially acute for players suffering long-term chronic injuries to joints such as knees and backs, or depressive conditions associated with those injuries and the end of their careers.
6.70Margalit Injury Lawyers also highlighted that many injured athletes may not even know they are suffering from the long-term effects of a concussion injury incurred during their playing careers and are therefore unaware that they may have a right to seek compensation:
Tragically, many injured players engage in self-blame and do not (or cannot) recognise that difficulties suffered by them in their lives arise from underlying medical conditions caused by concussions in sport.
Absence of a no-fault national injury insurance scheme
6.71In their submission to the inquiry, the YPNHNA argued that the absence of a no-fault national injury insurance scheme represented a 'major gap' in Australia’s system of care for people who have sustained catastrophic injuries on the sporting field or while pursuing other activities.
6.72YPNHNA noted that the establishment of a National Injury Insurance Scheme was recommended by the Productivity Commission in 2011 and submitted that such a scheme should be the 'focal point for funding the treatment and care of severe head trauma from sporting accidents'. It considered that a general injury stream could cover catastrophic sporting injuries and provide injury management to the same standard as the various state and territories’ no-fault motor vehicle injury schemes.
6.73In his evidence to the inquiry, Mr Blackwood from YPNHNA said:
We call for the immediate implementation of the general injury stream of the National Injury Insurance Scheme to enable people who suffer traumatic brain injury and other catastrophic injuries to obtain the medical and other supports they need. The fact that we still do not have this scheme promised by government in 2013 to provide cover for all injuries like this is a travesty.
Instead, the lottery of injury in which how and where you sustain that injury determines the medical rehabilitation and social support you receive is still very much in play. This is particularly the case in sport and recreation, where significant risks to players' health and wellbeing can exist, but we have nothing in place to respond to the injuries that they may sustain.
6.74The Productivity Commission recommended that the National Injury Insurance Scheme be separate from NDIS for a number of reasons, such as:
reducing the cost of the NDIS through a fully funded insurance accident scheme;
making use of existing expertise and institutions of accident compensation schemes;
using incentives to deter risky behaviour and reduce local risks that can contribute to accidents; and
covering a broader range of health costs associated with catastrophic injuries, such as acute care and rehabilitation services.
6.75Mr Blackwood also explained why the NDIS was not an adequate alternative for people who become injured:
The problem with the NDIS is that it doesn't fund rehabilitation, so people go from a stint in hospital with acute care for their brain injury, then almost leapfrog rehabilitation and go to disability support. There's a lot that's lost in the middle. That's really why the NDIS is not fit for purpose for people with brain injury from the point of injury, because it misses the rehabilitation. We need something that's going to actually fill that gap.
Barriers to seeking compensation and remedies through the court system
Effective legal defences
6.76Inquiry participants highlighted that defendants in legal actions, such as sporting bodies, are often able to rely on a number of effective legal defences to avoid paying compensation. Amongst others, these defences can include:
obvious risk—at law there is no duty to warn of 'obvious risk', which is usually defined to be a risk that would have been obvious to a reasonable person in the position of the plaintiff;
voluntary assumption of risk—a defendant may avoid liability by establishing that the plaintiff voluntarily assumed the risk;
dangerous recreational activity—a defendant is not liable for harm suffered by a plaintiff caused by the materialisation of an obvious risk of a dangerous recreational activity;
exclusion clauses and waivers—defendants can limit their exposure to future claims by incorporating exclusion clauses and waivers into their contracts with their player base;
causation—defendants can also allege that a plaintiff’s symptoms are caused by other factors, such as drug and alcohol consumption;
time limitations on legal action—generally plaintiffs have a limited timeframe in which they can bring a claim after a tortious act has been committed; and
no objective evidence of brain injury—traumatic brain injuries are known as the 'invisible injury' and, in some cases, cannot be detected by medical imaging.
6.77The General Manager of Head and Trauma at Shine Lawyers, Ms Jamie Shine, argued that the legal landscape in Australia is 'stacked against the plaintiff or the injured person'. On this issue, she said:
We've brought in legislative defences that are available to defendants which I feel abrogate their responsibility and mean that they don't necessarily have to take proactive steps to investigate, inform or warn. Provisions like the dangerous recreational activities mean that, for professional and amateur footballers playing football, there is no obligation on the defendant to take steps to protect them, and it's making it almost impossible for injured players to get money so that they can fund the treatment, care and support that they need both now and into the long term.
Uncertainty of outcome due to lack of legal precedent
6.78It was argued by inquiry participants that, due to the effectiveness of the legal defences available to sporting organisations, only a couple of cases had commenced in Australia to date. In its submission, Shine Lawyers highlighted the importance of further developing tort law with regards to concussions and repeated head trauma:
The objective of torts law is to provide financial support to an injured plaintiff to cover their loss of income earning capacity and to fund their care, treatment, and support. Additionally, these claims are important as they create consequences for defendants and act as a deterrent. These consequences seek to ensure that defendants take health and safety issues seriously, act proactively to assess risks, and take steps to minimise the likelihood of harm to others. They also seek to spread the loss, so it is not all borne by the government.
6.79Concussion Australia observed that, although there are several claims currently underway in the courts related to concussion and concussion‑related injuries, there is minimal case law in this space which makes it a complicated and uncertain area of law.
6.80Dr Annette Greenhow, a lawyer and legal academic focusing on sports law and the regulation of concussion, also spoke to this issue when responding to a question regarding the state of Australia’s legal system in relation to concussions and repeated head trauma. On this, she said:
… based on my research, there is no Australian precedent that has definitively identified a duty of care owed by a sports governing body to a player for a concussion related injury. There certainly has been … some discussion about a claim that involved a former NRL player, but that did not make its way through the court system.
As far as other jurisdictions are concerned, of course, you've got the United States and the National Football League case in 2011 that started and was settled. So, there again, based on the role of the sports governing body in the United States, that case did not make it through to a hearing; it was a negotiated and mediated resolution.
In Canada, it's a different system again. Nonetheless, there have been some claims that have been made, but, again, to the best of my knowledge there is nothing that has set a definitive—or certainly in the Australian system it would only be something to be regarded, but certainly not a precedent set, per se.
6.81The Rugby Union Players Association also discussed this issue during the inquiry, and in its response to question regarding the legal precedent in Australia it said:
There are currently no reported decisions in Australia which set a precedent for the liability of sporting codes, teams and/or governing bodies for concussions and head traumas in sport.
Until such time as either the AFL class action[s], or the case of Zantuck, progresses through the Courts to determine the issue of liability, there remains no legal precedent in Australia regarding liability for concussion and head trauma in sport.
Committee view
6.82The committee understands that support for players affected by concussions and repeated head trauma is variable, and depends on several factors such as the level of competition being played, the financial resources of the player themselves, as well as the resources available to, or made available by, sporting clubs, governing bodies and players’ associations.
6.83Fundamentally, key national sporting organisations could further enhance their commitment and their duty of care to athletes across the country, providing athletes with more support or resources to respond more effectively to life‑changing challenges.
6.84It was clear to the committee that significant reforms and improvements are needed to ensure that individuals from all levels of sport, are adequately supported, remediated and compensated in the event that they suffer from the ongoing impacts of concussion and repeated head trauma as a result of their participation in sport.
Inadequate supports from sporting organisations
6.85The committee acknowledges that over recent years, major national sporting organisations in Australia and players’ associations have made various efforts to extend and improve the supports available to former professional players who have been significantly impacted by the effects of sport-related concussion and repeated head trauma.
6.86However, the committee was concerned to hear about the inadequacies of existing supports offered by national sporting organisations. The committee agrees with various inquiry participants and considers that current measures that national sports organisations have in place to provide financial, medical and other broader supports and guidance for affected players and their loved ones affected by concussion and repeated head trauma, often fall short.
6.87The committee is also conscious of the significant disparities in the supports available to professional athletes, compared to players in the broader community.
6.88The committee understands that local sporting clubs and organisations do not have the level of resources to support their athletes compared to professional bodies. However, the committee is of the view that the lack of support available to community level athletes still needs to be addressed.
6.89The committee considers that professional sporting organisations can, and must play a key leadership role in supporting and encouraging individuals affected by sport-related concussion at the community level, to seek and get help. Specifically, the committee believes that Australian national sporting organisations should explore ways to clarify and increase community awareness about where and how local athletes can obtain information and seek support if they are suffering from the impacts of sport-related concussion.
6.90The committee also considers that recommendation 15 below, will address the need for enhanced supports for community level players and families impacted by sport-related concussion and repeated head trauma.
6.91The committee recommends that professional sporting codes and players associations consider ways for a best practice model to provide ongoing support, financial and otherwise, to current and former players affected by concussions and repeated head trauma.
Exclusion of professional sportspeople from workers’ compensation schemes
6.92The committee acknowledges the current situation where professional sportspeople in Australia are generally excluded from workers’ compensation schemes in each state and territory. The committee considers that professional sportspeople should be covered by adequate insurance arrangements.
6.93The committee considers that the arguments originally advanced in support of the exemptions, as highlighted during the inquiry, may be less relevant in contemporary Australia where professional-level sport has become corporatised and commercialised.
6.94According to one submitter, the exclusion of professional sportspeople from workers’ compensation schemes in a number of jurisdictions may be ineffective, and as a result, some sporting organisations operating in these jurisdictions may be in breach of their legislative requirements regarding workers’ compensation obligations.
6.95Regardless, the committee is of the opinion that the existing situation is unsatisfactory and inequitable.
6.96The committee encourages professional sports organisations to ensure their athletes have insurance coverage for head trauma. The committee also encourages state and territory governments to engage with professional sporting organisations to explore how the general exclusion of professional sports people from various state and territory workers’ compensation schemes could be removed.
The committee envisages that such a review should, amongst other things, assess the financial impact such a reform would have on the various sporting organisations across Australia.
Absence of a no-fault injury compensation scheme covering the whole community
6.97The committee notes that the absence of a no-fault injury compensation scheme in Australia was raised as a key issue during the inquiry. The committee agrees with inquiry participants that the absence of such a scheme represents a gap in Australia’s system of care for people who, amongst other things, sustain concussions and head trauma while playing sport.
6.98As a result of this absence, people who sustain these injuries while participating in sport who wish to seek compensation and support have to do so through other methods, such as the legal system. As highlighted during the inquiry, and discussed earlier in this chapter, seeking redress through legal action is highly uncertain, costly, and commonly results in inadequate outcomes due to the numerous legal defences that can be effectively utilised.
6.99The committee considers that a no-fault accident injury insurance scheme may be the solution to providing adequate care and support for people who participate in sport and who suffer concussions, brain trauma, and any resulting long-term neurodegenerative conditions.
6.100The committee is of the opinion that the scheme currently administered by the Accident Compensation Corporation in New Zealand represents a good example of how to effectively insure sports participants, and others, who sustain injuries. As highlighted during the inquiry, this scheme provides financial compensation and support to citizens, residents, and temporary visitors who suffer personal injuries—including sports injuries—while in New Zealand. Such a scheme could be adapted to provide the longer-term supports required for any latent and chronic health issues arising from concussions and repeated head trauma.
6.101The committee also notes that a similar scheme covering catastrophic injuries, the National Injury Insurance Scheme, was recommended by the ProductivityCommission in 2011 and that this scheme’s implementation was also advocated for during the inquiry.
Senator Janet Rice
Chair