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Were the NRL’s $350,000 concussion fines fair?

Allistar Twigg

18 May 2017

Topics

  • Sports Law

The NRL shows its cards

The NRL recently imposed significant fines on three separate NRL clubs who, it said, had ‘breached the game’s head injury rules in Round Three’. The clubs and their penalties were:

  • Gold Coast Titans — $150,000 ($100,000 suspended) for incidents involving Kane Elgey and Ryan Simpkins.
  • St George Illawarra Dragons — $100,000 ($50,000 suspended) for an incident involving Josh Dugan.
  • Newcastle Knights — $100,000 ($50,000 suspended) for an incident involving Brendan Elliot.

Under the NRL’s concussion guidelines, the burden of diagnosing concussion and treating players is placed squarely on the clubs. That was the basis for the imposition of these fines.

Allistar Twigg, Lawyer with SHG Sports, reviews the Brendan Elliot and Josh Dugan incidents online, and finds that it is clear that there was significant head trauma in each case but that it doesn’t seem like their club trainer and doctor actually found out in sufficient time. Allistar discusses the lack of certainty of information flowing to NRL trainers and doctors and the possible repercussions.

Brendan Eliot incident

First, Brendan Elliot: his head was caught by a swinging arm from the tackler and everyone in the stand on that side saw it and reacted loudly. Elliot did not get up after the tackle, and the slow motion replays showed significant force applied to his head and that he did not protect himself as he fell. But it seems that this all escaped the Knights’ responsible people. Elliot wasn’t then subjected to a Head Injury Assessment (HIA) and wasn’t removed from the field. How did they miss what everyone else saw?

Josh Dugan goes down

Similarly for Josh Dugan. He was felled by a teammate’s accidental elbow. Slow motion replay shows that his head suffered the application of significant force, that he also failed to protect himself as he fell, and then lay prostrate and inert for a couple of seconds before apparently rousing himself. According to the club, “At no stage did he present any symptoms relating to concussion”, so he wasn’t subjected to an HIA and wasn’t removed from the field.

Who didn’t see the incidents?

Everybody at home saw both of these incidents, replayed in HD slow-mo. Everybody at the ground saw them on the big screen. How were these players allowed to stay on? Everybody seemed to know except those responsible for implementing the concussion guidelines.

When the NRL strengthened its concussion policy in April 2015, it said that ‘players must not return to the field if they exhibit any of the following signs [including] falling to the ground without taking protective action’.

So who is really responsible here? Where does the rubber hit the road when the head is subjected to trauma?

Assessment

The job of first assessor usually falls to a team’s trainer. The trainer’s first job is to attend to any immediate first aid needs, and then to observe for signs of concussion in a player: things like loss of consciousness, falling without taking protective action, seizure or tonic posturing, balance disturbance. According to Todd Greenberg, CEO of the NRL, “If players exhibit these signs it is compulsory that they are removed from the field and do not return [for the match].”

Next the trainer/first assessor (if s/he is aware of a head knock) will also check for memory impairment by asking questions like:

  • What ground are we at today?
  • Which half is it now?
  • Who scored last?
  • Did your team win the last game?

Inappropriate responses necessitate immediate removal from the field of play.

But trainers in NRL premiership games are under unspoken pressure to get the game back under way again and are usually dependent on player feedback to enable them to make a critical decision.

The NRL is also presently trialling a system which allows a team doctor to listen, via a wireless earpiece connected to the trainer, to hear the trainer talk to a player s/he is examining and who may be injured or concussed.

The team doctor also has access to TV replays (separate to what’s being broadcast or on the ground’s big screen) and the ability to replay an incident on the sideline to see if a player is injured or concussed.

How do the trainer and doctor know there’s been a head knock?

This really is a key issue and is vital to the NRL’s and club’s duties of care.

Who lets the trainer and the team doctor know that there’s been a potential concussion occurrence that they need to look at? If the incidents for which the clubs got fined are anything to go by, it would seem — nobody.

The trainer is probably the busiest person on the ground. S/he is always running around, on and off the field, attending to players when they get knocked around — and being a collision sport, rugby league players do suffer a lot of knocks. The trainer also seems to be continually getting instructions from others. The trainer doesn’t have time to look at the big screen, the trainer usually doesn’t hear the roar of the crowd. The trainer is focused on what s/he is doing.

Likewise, the team doctor is also very busy during a game. He or she is not kicking back up in the hospitality suites enjoying a cold chardonnay and one of those tiny smoked salmon sandwiches. The team doctor’s attention is focused on the many and varied jobs associated with keeping the team’s 17 players upright and on the field for the duration of the match. Indeed, when the NRL first gave the Titans notice to show cause why they shouldn’t be fined $150,000, they talked about fighting the fine — arguably with good reason. When Kane Elgey went down, they argued that, by the time the trainer attended to him, he was not showing any symptoms of concussion. Further, they said, the team doctor was not able to review the incident because he was already busy performing an HIA in the dressing rooms on another player.

Whose responsibility?

So how do the team trainer and the team doctor get to know that there has been a potential concussion incident? It’s not the referees’ or touch judges’ job to tell them. There’s no communication lines from the television commentators to the trainer and doctor, although the commentators usually have a lot to say about it. Nor is there any real instant connection from coach to trainer or doctor. And even if there were a way to communicate the possibility of head trauma to trainer and doctor, given their on-going responsibilities during the game, there’s no guarantee of immediate decision-making by either.

Usually, the trainer doesn’t have time to look up at the big screen and wait for a replay to be shown. And the doctor may be incommunicado in the sheds stitching someone up or attending to some other urgent problem.

So what we have here is a communication problem.

It’s not at all unlikely that all the world may know about a possible concussion except for the two people who are required to make the critical decisions.

This needs to be addressed. It is unfair of the NRL to simply load up the clubs and trainers and doctors with responsibilities and not address the gaps in the system.

What needs to change?

Both the NRL and the clubs need to cooperate to satisfy their respective duties of care to the players.

Steps that would likely improve concussion detection

  • First, someone in the NRL Bunker (not Bernie — he already has his hands full), someone with immediate access to video replay technology, needs to be delegated the responsibility of observing for head knocks (the Bunker Delegate). The Bunker Delegate should be someone with some medical training — perhaps a sports doctor. But really, you don’t need to be a brain surgeon to see when a player has suffered a potential concussion.
  • Once an actual or possible head knock is observed by the Bunker Delegate — at any time, even if it is significantly after it has occurred — this Delegate is to immediately notify a nominated side-line game day official (NRL, not a club official — there are good reasons why club staff should not have their mobiles with them).
  • It is imperative that the Bunker Delegate have immediate communication with this side-line official, who needs an access-all-areas pass.
  • Once notified by the Bunker Delegate, this side-line official has the job of immediately finding and personally notifying the relevant team doctor of the possible concussion. I say the team doctor because, by the time the message is conveyed, it is probably time for the team doctor to act.

It may be a little clunky, but it may save teams another $350,000. And it also just may save a player from serious damage.

How can SHG Sports help you?

In a situation where you or your sports club requires effective legal advice, we can assist you. If you have any questions about sporting matters, including NRL Concussion, please contact Allistar by phone on 02 6285 8000 or by email to discuss. You can find out more about the sports services we provide here.


The Roar published Allistar’s article ‘Were the NRL’s $350,000 concussion fines fair?’on 15 May 2017.

Josh Dugan Image: Craig Golding, Queensland Times.