The proceedings are being led by dual premiership player Jarad Maxwell Rooke (Max Rooke), with the case having been lodged in the Supreme Court of Victoria on Tuesday (14 March) by Margalit Injury Lawyers.

The class will be made up of professional AFL players who suffered concussion-related injuries through head strikes while training or playing AFL between 1985 and 14 March 2023. Over 60 players have come forward to join so far. 

Mr Rooke has alleged that throughout his playing career, he suffered concussions approximately 20 to 30 times, including from head strikes that caused unconsciousness on at least two occasions.

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Mr Rooke alleged that the AFL breached their duty of care, as he ought to have been made aware of the medical knowledge at the time regarding the potential long-term consequences of concussion suffered by AFL players while training and playing games. 

He also alleged that they breached their duty of care by not making and enforcing rules designed to mitigate consequences of long-term injury arising from concussion. 

The former players are seeking compensation for pain and suffering, economic loss, and medical expenses, Margalit Injury Lawyers outlined. 

The firm also noted that a similar class action in the US brought former NFL players an initial payout of more than US$1 billion. 

Margalit Injury Lawyers managing principal Michel Margalit explained that the long-term injuries suffered by the former players include various neurological impairments such as chronic traumatic encephalopathy (CTE), traumatic brain injury (TBI), and dementia. 

Many former players are also experiencing devasting psychological consequences, including depression, post-traumatic stress disorder (PTSD) and, tragically, suicidal ideation. 

“The injuries suffered by this group of former AFL players, as a direct result of the concussions sustained while playing Aussie Rules, has had a devastating impact on their lives and the lives of their loved ones,’’ Ms Margalit stated.

“Some of the players who have joined this landmark class action have never been able to hold down a job after leaving the AFL. Their personal lives have been shattered, and they live with constant physical and mental pain,” she said. “It’s heartbreaking, and they need to be adequately cared for.’’ 

Ms Margalit continued: “They dedicated their lives to the game. Years later, their footy career is a distant memory, and they find themselves injured and without the means to care for those injuries. This is despite AFL being one of the biggest economic drivers in the state.” 

“Justice delayed is justice denied. These injured players have waited too long. Now is the time to hold the AFL accountable and to seek fair and just compensation.”

“The AFL should have taken accountability earlier, rather than these former players having no choice but to seek a remedy for their pain and suffering through the Supreme Court.’’ 

“Financial compensation can never fix the damage that concussion has caused, but it will be an important step forward in recognition of the damage caused to them. 

“We hope that the AFL will engage in genuine and early resolution discussions, to avoid unnecessarily prolonging the suffering of these former players,” Ms Margalit stated. 

Ms Margalit outlined that the legal team has been consulting leading experts in the field of neurology who would give evidence in the Supreme Court. 

“The medical evidence is clear,” she said.

“The players’ concussion occurred while playing Aussie Rules, and those concussions have gone on to cause them serious, lifelong physical and psychological harm.’’ 

A litigation specialist spoke to Lawyers Weekly about the responsibility sporting organisations such as the AFL hold in assuring the safety of players. 

“Clubs and governing bodies must ensure that every player is fully informed about the risk,” explained Emma Johnsen, senior associate at Marque Lawyers; they “owe a duty of care to players to take reasonable care for their safety”.

She also discussed the key elements that will determine the case. 

“Typically, in a case for damages against a sporting body or a club — a player, or players, will have the burden of proof to prove, on balance of probabilities, that negligence on the part of the AFL caused or materially contributed to the player’s injury. 

“The AFL ignoring medical research, and/or not educating the players, is likely to be a factor in assessing if the AFL was negligent,” Ms Johnsen argued.

Christopher Fox, head of distribution Asia-Pacific and Europe at NeuroFlex, also spoke to Lawyers Weekly.

Mr Fox outlined that in recent years, apart from establishing a 12-day no-play rule for players that sustain a concussion, there has been no other direction given on how concussions and blows to the head should be dealt with. 

“We’re seeing no direction from the AFL or the concussion committee, established by the AFL on this,” he said. “There is no leadership being shown.”

Each individual brain responds differently to concussion and will heal differently, Mr Fox explained; this means that a policy can’t determine when players are ready to go back on the field; it needs to be determined by doctors conducting scans of the brain.

There needs to be a shift to “clinicians making the decision, not people that wear suits”, he said, rather than “executives that have one eye on multibillion-dollar media contracts, which are predetermined by elite athletes being on the field”.