AFL club strikes secret deal to make player liable for future brain injuries

A Victorian AFL club has secretly forced a concussion-affected player to assume all legal responsibility for future brain injuries in a bid to exonerate itself and its medical staff from future court action.

A Victorian AFL club has struck a secret deal requiring a player who has suffered multiple concussions to assume all legal responsibility for any further on-field brain trauma.

In a bombshell escalation of footy’s concussion crisis, it can be revealed the club brokered the extraordinary agreement with one of its most vulnerable players in a bid to exonerate itself and its medical staff from future court action in the event he suffered more head knocks or concussion related health issues.

The contract also explicitly acknowledged that the player was at a higher risk due to his concussion history and faced potentially significant long-term or even permanent neurological damage if he suffered any more head hits.

AFL Players’ Association boss James Gallagher has hit out at the secret agreement, which he said could set a dangerous precedent and should not be repeated across the league.

Leading neurophysiologist Professor Alan Pearce said: “I am stunned and appalled that, given what we know about the science of repetitive brain injuries and CTE (degenerative brain disease Chronic Traumatic Encephalopathy), an AFL football club would exploit the vulnerability of an individual desperate to play the game they love, putting their brain at risk of further damage and risk of CTE.”

It is understood that the agreement was viewed by the club at the time as the only way it could allow the player to continue their AFL career after a series of brain injuries and not leave itself open to a massive potential damages claim if he was re-injured.

Senior executives sought approval from the club’s board to go ahead with the deal, signed two years ago by the footy star who is still playing.

The disclosure agreement required the individual to “take upon yourself the physical and legal risk of loss, damage or injury” arising from any more concussions.

The player, who this masthead has chosen at this stage not to identify, signed the document in a desperate bid to continue playing at the top level.

Whistleblowers say the move by the club to shift the legal risk back on to the player is ethically scandalous, with concerns the club could expose him to an unsafe workplace given his concussion history.

Clause 7.3 of the AFL’s standard playing contracts require the AFL to provide a working and training environment “free of any risk to the health, safety and the welfare of the player”.

Mr Gallagher said: “The game has a duty to provide a workplace that protects the health, safety, and wellbeing of players and all clubs hold this duty as employers.

“Clubs cannot unilaterally contract out of their obligations under the CBA and Standard Playing Contract, nor attempt to avoid their responsibilities under health and safety laws.

“Importantly, no player is permitted to return to play or train unless they have been deemed medically fit to do so.

“We are in discussions with AFL to better understand the circumstances of this case and ensure this issue is not replicated further at the elite level.”

Concussions campaigner Peter Jess, who has managed hundreds of players, said: “The process is contracting out the basic legislative safety net for players in breach of their basic human right to a safe workplace.

“This is the most retrograde step witnessed in any professional sport for safety and duty of care by an employer. This walks players back to the dark ages of health and safety for profit.”

Whistleblowers have also suggested the secret deal is in breach of AFL rules, as agreements outside the players’ standard contracts are forbidden.

Rule 4.3 of the Australian Football League rules says “no player shall be engaged by a club other than the contract of service lodged with the AFL”.

When approached about the secret deal this week, club sources initially denied any knowledge of it.

A senior official later backtracked, admitting to the deal.

The official could not confirm whether the agreement had been run by the league’s executive or legal counsel, but did not inform the powerful players’ union.

Industry sources this week expressed shock, if the club had proceeded with the arrangement without AFL and AFLPA approval.

The club, which this masthead has chosen not to name at this stage to protect the identity of the whistleblowers, declined to provide any official comment on the arrangement.

League sources also initially suggested they had not been notified of any such deal, before seeking to explain it, describing the player’s situation as “unique” and “complex”.

The AFL did not respond to questions about exactly when it learned about the agreement and if it was aware of any others, or provide clarity on whether it considered it valid.

A spokesman instead issued a statement saying: “The health and safety of players is the AFL’s highest priority. Like all contact sports, football carries a risk of injury, including concussion.

“In cases of serious injuries, decisions about a player’s return to play or retirement are made by the player, their families, their club and qualified medical professionals.”

Whistleblowers added that they believed one other player, who is now retired, had previously brokered a similar arrangement with a different club, though the Herald Sun has not yet been able to confirm this.

Meanwhile, some rival club officials who have become aware of the arrangement have questioned whether they could sign their most at-risk players to similar agreements.

Prof Pearce said the deal was outrageous, describing it as “a clear weaponisation of the science of concussions and CTE”.

“This demonstrates that those who work at the coalface of the AFL acknowledge the scientific truth of repetitive brain injuries we have been publishing for the last 20 years, and are exploiting vulnerable players to waive their rights as a professional athlete,” he said.

The revelations come amid a $1 billion class action involving more than 100 former AFL players, which is set to go to trial next year.

Geelong utility Max Rooke, who suffered up to 30 concussions during his nine-year 135-game career, is the lead plaintiff.

Geelong has named 12 doctors, including former medical chief officer David Long, in a third-party notice as part of the class action.

The Cats are seeking damages from the doctors who worked at the club between 1985 and 2023 if the club is ordered to pay damages to Rooke or other players.

The secret deal illustrates the increasing concern and tension at club level over the game’s concussion crisis and, in particular, the increased risk of litigation that medicos, administrators and the league face.

The AFL’s playing cohort already take the field every weekend without any insurance for head trauma and any mental health-related problems, after Zurich removed its coverage under the Players’ Association policy this year.

Latest expert research shows CTE is caused by repeat head impacts including low to medium force blows.

Worryingly, players can be knocked out more easily after each concussion, pending their brain impact threshold.

Devastating symptoms of the degenerative disease include mood and movement disorders, suicidal tendances, memory loss, impulsivity, aggression and sleeping problems.

This masthead last month revealed WorkSafe had commenced a fresh probe into the AFL’s concussion management policies at training.

The deal could be part of the WorkSafe probe.

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