[Guest post by Eric Windholz]
Last week I again had the pleasure to contribute to the Headfirst: A Concussion Podcast, this time talking about recent developments concerning the compensation of athletes (and in particular, AFL (Australian Football League) players) suffering concussion. The key takeaway – the more things change, the more they stay the same.
Changes made in May 2025 to the AFL/AFLPA (Australian Football League Players Association) player injury fund to increase both the total funds available and the maximum individual pay-out are welcomed, but do nothing to change the fundamentals of the fund – that it is discretionary, its continued existence contingent, and its adequacy unknown.
And the mid-year media reports of delays in insurance pay-outs to medically retired players only serve to again highlight that the private insurance market is not the long-term solution for providing adequate and timely compensation for players suffering long-term and long-latency injuries such as concussion.
And most recently, while earlier this month the Max Rooke-led class action against the AFL and his former club Geelong survived decertification, the Court’s decision only highlighted the long and winding road that still lies ahead of the players with the prospect now of a number of trials of common issues for discrete sub-periods that make up the entire claim (to account for changes in knowledge and practice), followed by individual mini-trials to resolve issues individual to each person, such as in relation to causation, damages, and possibly even breach of duty.
Another interesting feature of the judgement is the light it sheds on the blame-shifting likely to be a feature of the trials, with the AFL arguing primary responsibility for player injuries lies at the feet of the club, the players’ employer; and the club arguing primary responsibility lies with the AFL whose rules and regulations the club was required to observe and comply with. Geelong has also indicated its intention to claim a contribution or indemnity against AFL club doctors in relation to the claims made against it. A lot of finger-pointing that all goes to highlight how inappropriate litigation is as a mechanism for ensuring players are properly compensated for the injuries they incur in the course of their career.
There has to be a better way! And that better way is a bespoke workers’ compensation-style scheme – one that is tailored to professional sports’ unique needs and risk profile, but which also reflects that for the professional athlete, sport is their job and concussion and head trauma a workplace injury risk.
Note: links have been added to Eric’s original post. The text has been slightly edited to improve clarity. The article, originally posted on LinkedIn, is reproduced here with Eric’s permission. BTW, the featured image is generated by AI.