Chronic traumatic encephalopathy (CTE), a serious brain disorder caused by repeated head injuries, has become a serious concern for sports organisations across the world. Major sporting organisations including the AFL have taken numerous steps towards reducing the risks of serious head injuries, and reducing the impact of any head injuries that occur. In 2023, the Australian Football League (AFL) has placed an emphasis on avoiding dangerous tackles which could lead to head injuries. It has done so in order to protect against head injuries (particularly concussion-related injuries) to players, and thus also avoid the threat of legal liability for breaching workplace health and safety laws.
As of Round 17 of the season, there were upwards of 20 suspensions of players for “dangerous tackles”. In some cases, the suspended player’s opponent has been concussed. However, on many occasions the player’s opponent has not been concussed, although there may have been a risk of concussion. Further to this, the modes of the dangerous tackles have been different for many of the incidents which have led to suspensions. This has led to a considerable amount of confusion and frustration among fans and players as to what constitutes a dangerous tackle. This has led many fans to make claims that the game of Australian rules football has “gone soft” and that tackling will eventually disappear from the game.
This article will briefly examine the current sporting landscape, in which CTE and concussion have increasingly become a serious concern for sporting organisations globally. It will then review the rules related to “dangerous tackles” and how they are currently applied by the AFL tribunal. It will discuss the AFL’s legal responsibilities to players. Finally, it will highlight the fine line which exists for the AFL to balance its legal responsibilities while also maintaining the “fabric” of the sport.
CTE and Concussion – a Serious Problem for Sports Organisations
CTE is a serious and progressive brain disease associated with concussion and repeated blows to the head. It can only be conclusively diagnosed after death. Symptoms associated with the disease include memory and thinking issues, confusion, personality changes, depression and suicidal thoughts. The disease can lead to dementia. Research on former NFL players in the US has recently shown that 345 of 376 players studied (91%) suffered from CTE. CTE is also a risk for boxers as well as soccer and rugby players around the world. In March 2023, in Australia, the AFL acknowledged the link between head trauma, serious neurodegenerative disease and CTE. Similar admissions have been made by the National Rugby League and Football Australia, following recognition by the US National Institutes of Health.
In July 2023, it was revealed that former AFLW premiership player Heather Anderson, who took her own life in November 2022 at the age of 28, suffered from CTE. Ms Anderson suffered at least one diagnosed concussion during her short career in the AFLW. She is the first known professional female athlete to be diagnosed with CTE, after numerous male professional sports people (including AFL players Shane Tuck and Danny Frawley) and have previously been diagnosed with CTE following their deaths, which are believed to be as a result of (or related to) CTE.
It is in this context that sporting organisations are having to consider how they reduce the risk of head injuries and concussions that may lead to players developing CTE. The risks to sports organisations that do not act quickly cannot be understated, with not only the prospect of legal action from former players who have been injured, but also the potential loss of the sporting stars of the future, who may be deterred from participating (or their parents may be deterred from allowing them to participate) given the increasing recognition of serious health consequences and potential early death as a result of the repeated head trauma associated with contact sports such as boxing and the various football codes.
The Rules and How They are Applied
In Australian rules football, a tackle is an act done to prevent a player from effectively disposing of the football. It is legally (and usually) executed by one player wrapping their arms around the torso of the player in possession of the football below the shoulder and above their knees to prevent the tackled player from disposing of the football effectively. The tackler will often try to bring the player to the ground to complete a tackle, but they cannot thrust the tackled player forward by pushing them or falling on top of their back whilst doing so. The tackler can also stay upright and pin the football to the tackled player so that they cannot dispose of the football.
The skipper standing up with a big tackle 😤#AFLDonsPower pic.twitter.com/tun9egvQrt
— AFL (@AFL) July 1, 2023
ABOVE: A legal tackle being executed by Zach Merrett of the Essendon Football Club against Aliir Aliir of the Port Adelaide Football Club.
During the 2023 season, AFL umpires have been directed by the league to interpret tackles by players which cause their opponent’s head to hit the ground as dangerous. Penalties for dangerous tackles have been a part of the game for a long time. The interpretation of what is a “dangerous tackle” has been developing over time, and expanding. However, 2023 has seen a significant shift in the interpretation of what is considered a dangerous tackle and players (and the fans watching the game) have been struggling to adjust to the sudden and serious change. Not all dangerous tackles are reportable offences which could lead to the suspension of a player, but this season has seen a dramatic increase in the number of reports and suspensions for rough conduct involving “dangerous tackles”.
The AFL Tribunal Guidelines (Guidelines) provide guidance as to when a dangerous tackle might become a reportable offence. Under the Guidelines, all dangerous tackles which are capable of being charged come under the broad category of “rough conduct”. A tackle which is deemed unreasonable in the circumstances could be considered rough conduct.
In determining whether a tackle is a reportable offence, and whether it was careless or intentional conduct, the AFL may have regard to:
- whether the tackle consists of more than one action (for example, where a player first holds onto their opponent, before making a secondary action to take them to the ground);
- whether the tackle is inherently dangerous (for example, a “spear” tackle where the player is lifted from the ground and their head is driven into the ground);
- whether the player who was tackled was in a vulnerable position at the time and without great opportunity to protect themselves (for example, if a player’s arms are pinned to their body by the tackle which means that they cannot safely brace for contact with the ground); and
- whether the player executing the tackle has slung, driven or rotated their opponent into the ground with excessive force.
Should Alex Neale-Bullen get weeks for this sling tackle?
(via @afl)
— 7AFL (@7AFL) August 5, 2020
ABOVE: Alex Neale-Bullen of the Melbourne Football Club laying an illegal “sling” tackle on Will Hamill of the Adelaide Football Club.
The AFL will also consider the potential of the tackle to cause injury when determining the grading of the impact of an offence. In broad terms, this means that tackles which have the potential to cause injury may be judged more harshly in the grading of impact even if the tackle itself did not eventuate in an injury.
For all dangerous tackles by players where their opponent’s head hits the ground, the grading of the point of contact with the other player will be high contact, even though the tackling player did not actually make contact with the player’s head, neck or shoulders. High contact offences attract more severe sanctions.
The AFL’s approach to dangerous tackles in 2023 has led to players being suspended for tackles which may not have attracted a sanction in previous seasons, and in fact previously would have been considered a perfect example of a suitable tackle.
In determining whether a player should be suspended, the AFL has placed an emphasis on the outcome of a tackle rather than the action itself or the intention of the tackler. The AFL’s tribunal has said, “[t]he question in these circumstances will always be whether the tackler has done enough to convert a potentially dangerous tackle into a tackle that’s not dangerous”. This means that there is an emphasis on whether the tackling player has acknowledged and adhered with their duty of care to their tackled opponent. This could be demonstrated by the tackling player leaving their opponent’s defensive arm free to brace for contact with ground, or swivelling their opponent so that their opponent lands on top of them rather than the ground. In the rare cases where the AFL tribunal has determined that the player has demonstrated that they have done all they could do to avoid their opponent’s head hitting the ground, the player has been cleared of the offence. However, there have thus far been only two such cases where a player has been cleared by the AFL’s tribunal of a rough conduct dangerous tackle charge.
The AFL’s Legal Responsibilities
One of the reasons why the AFL has needed to punish dangerous tackles is to protect the heads of players from injury and trauma. As discussed above, it is now well-established that concussions in sport could have potentially serious lifelong health impacts on athletes. The AFL has obligations under workplace health and safety laws to provide a safe place of work for the athletes which take part in the sport. There are also obligations under tort law which place a duty of care on the AFL.
Earlier in 2023, a group of former AFL players filed law suits against the AFL for alleged negligence and breaches of workplace health and safety laws. Most of the group of former players had suffered multiple concussions throughout their professional careers and were eventually diagnosed with permanent or long-term neurological injuries.
Outside of Australia, over 200 professional and amateur rugby union players in England are suing the Rugby Football Union, World Rugby and Welsh Rugby Union, for failing to protect them against repetitive concussion injuries. Likewise, in 2013, over 4,500 former National Football League (NFL) players in the United States sued the NFL for concussive injuries sustained during their playing careers. The case eventually settled for around $1 billion (USD).
Given these examples, it is unsurprising that the AFL are taking head injuries very seriously.
In terms of the AFL’s legal responsibilities, it owes players a duty of care to provide them with a safe workplace. While the players’ respective clubs are their employers, the AFL effectively operates the workplace in which they primarily do most of their work – playing football matches at the various stadiums and ovals. This duty of care, which may not have been well-known 20 or 30 years ago, is now at the forefront of the AFL’s mind given the new and developing knowledge on the impacts of concussive injuries. In Victoria, under the Occupational Health and Safety Act 2004 (Cth) (OHS Act), persons and body corporates who have the management or control of a workplace are required to ensure that the workplace is safe and without risks to health as far as is reasonably practicable. Breaches of the OHS Act could leave the AFL liable to very hefty financial sanctions. Likewise, players could take, and currently are taking, legal action against the AFL under the tort of negligence for breaching its duty of care by failing to provide the players with a safe workplace and reduce their risk of serious injury.
On the contrary, there could be an argument made that the players voluntarily assumed the risk of potentially suffering severe head injuries when they agreed to play a contact sport, such as Australian rules football. This is because the very nature of Australian rules football is that it is a competitive and very physical sport with many contests which could involve a player incidentally injuring their head. However, the High Court held in the case of Agar v Hyde [2000] HCA 41 that voluntary participation in a sport does not necessarily imply that the participant has assumed the risks associated with the sport to the extent that this negates the existence of a duty of care on the part of the relevant sporting body. Thus, playing the sport in and of itself will not mean that the AFL has no responsibility to protect players’ heads.
In saying that, the decision of Agar shows that voluntary participation in the sport remains a relevant factor in determining liability for injuries in sport. Other relevant factors when determining liability include whether the level of control a controlling body has over the prevention of injuries, as well as the burden that imposing a relevant duty of care would have on the controlling body (e.g. finding a duty of care could lead to an infinite number of claimants for their injuries). All of these factors would appear to favour a conclusion that as long as the AFL has made a concerted effort to reduce the likelihood of head-related injuries, then it would have discharged any prospective duty of care which it may owe the players. By tightening the interpretation of “dangerous tackles” both on-field and when determining reportable charges of “rough conduct”, the AFL appears to be likely to have discharged its prospective duty of care.
Given the AFL’s various legal responsibilities, it is not difficult to see why it has responded to dangerous tackles in the manner it has in 2023. However, some AFL fans have been critical of the strict enforcement action the AFL has adopted, stating that the interpretation will ruin the “fabric” of Australian rules football as a competitive and physical sport. Likewise, AFL coaches and players have also expressed confusion as to the harsh enforcement of dangerous tackles, with some citing that they are unsure of what players could do when making a split-second decision to lay a tackle.
An example of this is Hawthorn captain James Sicily’s tackles against Brisbane Lions midfielder Hugh McCluggage in the Round 14 match. In this incident, McCluggage gathered the ball from the ground before attempting to run away from the congestion of other players in his immediate area. In an act of desperation to prevent McCluggage from disposing of the ball effectively, Sicily lunged forward, and grasped the left arm and right hip of McCluggage. He then rotated McCluggage to execute his tackle. In the middle of the rotation, Sicily’s teammate Tyler Brockman ran past to impact the contest and made incidental contact with the upper body of McCluggage. Eventually, Sicily completed the tackle with McCluggage hitting the left side of his head on the ground concussing him. Sicily was later suspended for three matches for his tackle due to his “excessive rotation” of McCluggage in the tackle, which caused McCluggage to hit his head on the ground without means of protecting himself.
James Sicily has been referred directly to the tribunal for rough conduct following this incident with Hugh McCluggage.
Saturday MRO findings: https://t.co/uwL1E7gBoN pic.twitter.com/ZLjET1xIyW
— AFL (@AFL) June 11, 2023
ABOVE: James Sicily of Hawthorn Football Club was suspended for this tackle against Hugh McCluggage of the Brisbane Lions Football Club.
During his tribunal hearing, Sicily remarked that it “would’ve been a poor reflection of leadership as the captain of the club choosing not to tackle, and wouldn’t have met the standards expected of us”. This perfectly illustrated the conundrum which players face. Players are expected to defend with intensity and prevent their opponent from disposing of the football effectively. This goes to the very essence of the game of Australian rules football.
There are also concerns that the AFL has “gone too far” in its dangerous tackles crackdown which could be counter-productive to protecting players’ heads. There are concerns that players will deliberately become limp in a tackle so that their head hits the ground in order to draw a dangerous tackle free kick penalty against the tackler and gain a competitive advantage. This would likely put player’s health and safety at risk, which could potentially mean that the AFL will be in breach of its legal obligations.
These factors all emphasise the AFL’s unenviable task. It must be mindful of not disenchanting fans and players by fundamentally changing the sport, but it is also bound to adhere to its legal obligations. The tension between these two issues creates a fine line by which the AFL and many other sports must operate. While some fans’ opinion that the AFL will “kill the tackle” may be an overreaction, this case study does raise significant philosophical and legal questions about the viability of contact sports where the risk of injury is ever-present. Such questions may well be answered when the Court hands down its decisions on the former AFL players’ concussion claims currently before it.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.
