Former Western Bulldogs president and prominent negligence lawyer Peter Gordon has been tasked with examining the merits of a concussion fund for those suffering post career, but the AFL said on Friday this is linked to the ongoing collective bargaining agreement negotiations with the AFL Players’ Association, the basis of which is divvying up $4.5 billion in broadcast rights fees from 2025.
It has yet to be determined whether, if given the go ahead, it is linked to the hardship fund run by the AFLPA, or becomes a new separate fund.
The absence of a concussion fund could prompt more players to consider, or take, legal action.
Gordon, who was also the Bulldogs’ president through Picken’s career, is overseas. He said while he had read media reports, he had not yet seen Picken’s statement of claim. The AFL says Picken’s impending court case – likely to be held within 18 months, and only before a judge – does not impact on Gordon’s role advising about a potential insurance fund.
Picken’s move comes after former AFLW Collingwood vice-captain Emma Grant, represented by Margalit Injury Lawyers, launched a civil lawsuit against the Magpies, having suffered prolonged concussion which resulted in her early retirement.
Managing principal Michel Margalit has also signalled a class action, declaring severely injured former players could be awarded compensation of more than $2 million each. But the legal firm, who had met concussion campaigner and AFL player agent Peter Jess, has refused to release potential names or a lead plaintiff.
South Australian lawyer Greg Griffin and Jess have spent more than a decade working towards launching a class action. While plans are at reaching the pointy end, Griffin said on Friday it was too early to confirm when papers would be lodged in the Supreme Court.
Griffin is leading former Richmond player Ty Zantuck’s case in the Supreme Court alleging negligence by the club over the handling of his back injuries and concussions, claims the club has denied. He is also leading the case of Shane Tuck, the later former Tiger, and his family in a coronial inquest into whether his death was the result of on-field head knocks.
Tuck was posthumously diagnosed with chronic traumatic encephalopathy (CTE), brain degeneration likely caused by repeated head traumas.
Jess, who has presented a list of 32 AFL players, including Daniel Venables, Justin Koschitzke, Koby Stevens and Kade Kolodjashnij, who have retired with some form of brain trauma injury since 2009 to a Senate inquiry into concussions and repeated head trauma, said the AFL faces legal action from dozens of players.
Jess has repeatedly written to the AFL outlining his concerns with the return-to-play protocols for concussive and sub-concussive hits.
“They have got nowhere to hide. The protocols are still not good enough. The last paper that was published [on concussion] was from the Oxford University on January 31 that said if you have three clinical concussions, you should consider if you should continue playing,” Jess, who through Concussion Watch collates an independent list of serious head knocks in the AFL and second-tier competitions, said.
“I asked the AFL a week ago, do you have a concussion passport and do you have a record of the number of concussions each player has had? They said no.
“You can’t have a concussion management system if you don’t understand the structural and functional integrity of someone’s brain.”
Since 2005, the AFL has made more than 30 changes to rules and tribunal guidelines in a bid to reduce the risks of concussion knocks, including tougher penalties on bumps which result in head knocks.
“The health and safety of players at all levels of the game is the AFL’s key priority and we take concussion and the protection of the brain health of all those playing our game extremely seriously,” the AFL said.
The minimum absence for a player diagnosed with concussion is now 12 days, but Jess and Professor Alan Pearce, a neuroscientist and concussion expert who will appear at Senate inquiry’s Melbourne hearing, insist impacted players need up to a month off.
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