AFL considering proposal for landmark multimillion-dollar concussion trust for players

The Guardian

February 16, 2021

Also picked up in: The Age and  Australian Men’s Health

The AFL is considering a proposal for the establishment of a multimillion-dollar fund to assist past, present and future players suffering from the long-term effects of concussion in what could, if accepted, become a watershed moment in Australia’s sporting landscape.

Guardian Australia understands the governing body has been presented with a blueprint for the creation of a landmark trust that would represent a turning point in the way collision-based sports all over the world tackle head trauma.

The proposal as it stands involves a $2bn trust for the players’ benefit, into which the AFL would pay a minimum of $25m a year over a period of 80 years.

Peter Jess, the veteran player agent and prominent concussion campaigner behind the proposal, has told the Guardian the trust would cover the medical and rehabilitation costs, neurological support and costs associated with independent or supported living and income support, along with agreed levels of compensation for permanent damage as assessed by appropriate independent neurological experts.

While discussions are still at the preliminary stage, the Guardian has confirmed the two parties have had multiple meetings and understands they are aligned in their desire to achieve an outcome.

Any such scheme – or one of a similar format – would match the scale of America’s NFL concussion settlement involving thousands of lawsuits filed by former players in the US, which was initially estimated at US$1bn and has since inflated to significantly more.

Funds for the AFL proposal would be made available to any person who has played in the AFL/AFLW or VFL/VFLW. Other thresholds would also have to be met, such as a minimum number of games played and number of concussions sustained, though an exact number is yet to be agreed.

If finalised, the AFL would likely avoid the mooted class action by a large group of ex-players, including former Essendon and Geelong ruckman John Barnes, Brownlow medallist John Platten and the recently retired Jack Frost, though it would not be ruled out if an agreement is not reached.

“I met with the AFL on several occasions and continue to do so,” Jess told Guardian Australia. “The AFL’s and my preference is not to be engaged in litigation but to have the fund directed to the players rather than lawyers. At all times, our preference is to get a sensible pathway for settlement in the best interests of the players and the code.”

The AFL declined to comment on the talks when contacted by Guardian Australia, but has previously said it is committed to minimising the impact of head injuries, and is currently in the final stages of interviewing for a new role – a concussion lead – with the successful candidate to be announced in the coming weeks.

The AFL Players’ Association said it was in regular discussions with the AFL about how to best offer support for past players.

One of Australia’s most authoritative concussion experts, neurophysiologist Dr Alan Pearce, said any implementation of a trust proposal – in that format or otherwise – would represent “a significant step forward”.

“Partly to acknowledge that concussion is a brain injury and the fact that repeated head trauma is an issue we need to accept – that these sports do carry some risk,” said Pearce, an associate professor at La Trobe University and Victorian manager of the Australian Sports Brain Bank.

“If that proposal came through it would be good recognition that this is something we need to be addressing, rather than pretending it doesn’t exist or downplaying its significance. It would also certainly advance the science of concussions, both short and long term.”

As part of the proposal, called the concussion settlement pathway (CSP), player representatives are also pushing for the establishment of a dedicated concussion treatment and research centre for all participants in collision-based sports to facilitate the treatment for and rehabilitation from the effects of concussion.

Pearce said any such centre would allow for more systematic, coordinated research than has been conducted to date.

“Because at the moment it’s very ad hoc, with different groups doing different things and overlapping but not really talking, probably because of perceived interests or non-interests,” he told Guardian Australia, also stressing that all research must be independent and “at arm’s length” from the AFL.

“It can’t be at the direction of the AFL on what can be researched and not researched, and what can be published or not published. We have to be confident in what’s being done, that there’s no control of what outcomes can be provided or expected.”

Given the proliferating public conversation around the effects of concussion on athletes and the growing pressure to act, such a monumental move would also put administrators in rugby and rugby league, along with other sports such as cricket and netball, on high alert.

In December, the former England hooker Steve Thompson revealed he has been diagnosed with early onset dementia and probable chronic traumatic encephalopathy (CET), and does not remember winning the 2003 World Cup.

It comes some five months after the retired AFL player Shaun Smith was awarded a $1.4m payout when his personal insurer recognised he had suffered “total and permanent disablement” due to the head knocks he sustained during his 11-year career. Jess drove Smith’s case.

It is also believed the AFL is in discussions to identify rapid point-of-care diagnostics using biomarkers for the detection and treatment of subclinical concussions, which could help prevent the acute neurological deterioration experienced by retired players who do not present with clinical concussion but have suffered a traumatic brain injury more difficult to classify. SCAT5, the most widely used concussion assessment tool, does not include tests for subclinical concussions.

The link between playing contact sport and head trauma is becoming increasingly clear. A significant point of focus is CET, the degenerative brain disease symptomatically characterised by cognitive impairment, mental illness, and impulsive, unstable behaviour.

The coroner overseeing the inquest of Jeff Astle, the former England, West Bromwich Albion and Notts County footballer who died in 2002 aged 59, recorded a verdict of “death by industrial disease”. In 2014, he was posthumously diagnosed with CTE.

CTE can only be diagnosed after death, as was the case with former players Polly Farmer, Danny Frawley and, most recently, Shane Tuck. It is mostly found in people with a history of head trauma but has recently been discovered in sportspeople without a clinical concussion but who have had multiple subclinical concussions, as was the case with Tuck.

The late former Richmond player, who died last year aged 38, was last month found to have had a severe case of CTE, a postmortem diagnosis which prompted the AFL to issue tighter guidelines around head trauma across its men’s and women’s leagues.

Under the new protocols, concussed players must be sidelined for at least 12 days, which the organisation described as a “substantive increase” on the six days required under last year’s guidelines. The NRL said it will not follow suit for now, expressing concern over the potential for players or coaches to cover up any head injuries in a bid not to be forced to miss any action. Emerging research finds that recovery from concussion takes closer to 30 days.

A Monash University study, published last month, found that, on average, concussed Australian rules players showed no ill symptoms after one week. However, analysis of their blood showed their brains had released elevated levels of the protein Neurofilament light (NfL), which is evidence of damaged brain cells. The paper’s author, Stuart McDonald, concluded that, because of those elevated NfL levels, some players may be returning before their brain has recovered.

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