AFL concussion investigation to be referred to public prosecutors

The AFL’s handling of concussion and its return-to-play protocols will be put under a fresh examination when an investigation by WorkSafe Victoria is forwarded to the Office of Public Prosecutions this week.

Prominent player agent and concussion campaigner Peter Jess has taken a significant step by having WorkSafe’s ongoing investigation reviewed by a higher office. The health-and-safety regulator has yet to determine whether it will take any action against the AFL.

In a letter to Jess, and seen by The Age, WorkSafe enforcement legal director Dmitry Rozkin confirmed the regulator would refer the investigation to the Director of Public Prosecutions Kerri Judd QC on Wednesday. Under the Occupational Health and Safety Act, an investigation that has been ongoing for nine months without any “proceedings” can be referred to the public prosecution service.

“Accordingly, WorkSafe will refer this matter to the DPP (Director of Public Prosecutions) on 1 June, 2022. Unless WorkSafe has made a decision regarding its investigation before that date, our investigation will continue while the DPP considers the referral,” Rozkin wrote.

Jess has been fighting through Freedom of Information to force WorkSafe, which began its AFL investigation in November 2019, to release three reports, two conducted by hired investigators Dr Andrew Gardner and Dr Andrew McIntosh. He does not expect the regulator to take any action before Wednesday.

“It’s about accountability at every level. What should happen is the AFL and WorkSafe should be devising strategies to make the game more safe. I am not after penalties, I am after rule changes that can robustly protect every participant,” Jess said.

“Concussion is a brain trauma. I want to have the game changed so that we don’t have children and young adults playing adult’s rules. You should limit tackles before the age of 18 because we know the brain is still developing. A study in Sweden which looked at the consequences of brain trauma showed an increase in negative outcomes from the age of 15 forward.”

The OPP, once it has reviewed the case, could hand full control back to WorkSafe to finish the investigation. Jess hopes it rules new investigators take charge. A WorkSafe spokesman said its investigation will continue while the OPP conducts its review.

The AFL did not wish to provide direct comment on this matter. However, while releasing its annual injury report on Friday, executive general manager football operations Andrew Dillon said: “The AFL and AFLW concussion guidelines are the most stringent concussion protocols in Australian sport, and we are committed to continuing to listen and learn and take action – both at the elite and community level – when dealing with concussion.”

The OPP said once any case was referred, it could take months before a decision was reached.

Jess is chasing clarity on how the AFL has historically handled brain trauma – an issue which has league officials concerned it could face a class action unless a multi-million dollar concussion fund is established.

“I don’t want the AFL fined at all. They keep talking about taking concussion seriously. We have had 58 guys in the AFL and state leagues who have had brain traumas to round 10, under our research. We are looking at another season of 100-plus brain traumas. We need to prevent this and then make the protocols stronger,” Jess said.

Jess maintains the 12-day minimum concussion protocol, introduced last year when lifted from six days, is inadequate. Along with neurophysiologists such as La Trobe University associate professor Alan Pearce, Jess insists a minimum four-week break is needed for the brain to settle before a player returns, including for grassroots football. The bigger picture in Jess’ immediate case is whether an adverse finding by WorkSafe or the OPP would strengthen the case for an individual or class action against the league by former players suffering mentally and financially from the serious head knocks they endured through their careers.

Prominent South Australian-based lawyer Greg Griffin and Jess have gathered disgruntled former players for such legal action.

Griffin and his legal firm are representing the family of deceased former Richmond and Adelaide player Shane Tuck in a Victorian Coroner’s Court inquest, Tuck having been found to have had severe chronic traumatic encephalopathy (CTE), a degenerative brain disease linked with concussion.

Former Richmond and Essendon player Ty Zantuck, also under Griffin’s watch and with Jess involved, has launched action in the Victorian Supreme Court, seeking to have his physical injury case against the Tigers extended to include a range of neurological disorders. Premiership-winning Western Bulldogs president Peter Gordon, a leading lawyer, has been asked by the AFL to investigate a concussion fund for players. Gordon has said Gillon McLachlan’s replacement as AFL chief executive “will need their wits about them” when it comes to dealing with health-and-safety challenges facing the game.

The AFL has tightened concussion protocols over the past decade, including introducing a medical substitute last season. However, the league and AFL Players Association have frustrated players and their families with what they consider inadequate insurance payouts, including West Coast Eagles premiership player Daniel Venables, who was forced into early retirement because of bleeding on the brain. Venables was offered $800,000 from the AFLPA but could seek about $8 million if his case goes to court.

Source: The Age

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