AFL concussion waiver controversy highlights insurance gap and player safety concerns

The report into Geelong player Jake Kolodjashnij's concussion waiver was conspicuous because of an absence.

The AFL's independent investigator into the matter, James Peters KC, did not find that Geelong erred by allowing Kolodjashnij to sign an "acknowledgement of risk" letter absolving Geelong from its legal obligations.

In order to continue his career after the AFL's Concussion Panel couldn't give a firm yes or no on whether he could keep playing, Kolodjashnij agreed to take on the legal risk of damage or injury that might arise from any future concussions.

The AFL fined Geelong $140,000 ($40,000 was for a suspended sanction from a separate incident last year) for altering Kolodjashnij's contract outside the standard playing contract and for failing to lodge that document with the AFL.

But not because there was anything intrinsically wrong with what was in that letter.

"We do not make any adverse findings against Geelong or its Board for deciding to enter into an agreement with Mr Kolodjashnij seeking to mitigate the legal exposure to Geelong," Peters wrote in his summary.

That statement is significant because it doesn't rule out the possibility of another player entering into a similar agreement down the track.

That's clearly important because we know football players will do almost anything to keep playing.

Moreover, with an average AFL salary of about $500,000 per year, ending a career prematurely can have massive financial implications for players.

So, can it happen again?

Both the league and the AFL Players Association (AFLPA) are adamant that it can't.

Grilled on Thursday, AFL CEO Andrew Dillon said any similar waiver brought to the attention of the league and the Players Association would not be approved.

"If that [a proposed waiver] takes away from the minimum terms that have been bargained for by the Players Association … it would require approval from the Players Association," Dillon said.

"So, that wouldn't occur if the PA wasn't across that — and they weren't in this case and that's why the waiver has been moved by Geelong," he said.

Kolodjashnij hasn't returned to the playing field since the story about his waiver blew up.

The CEO of the AFL Players Association, James Gallagher, said he was the subject of ongoing medical assessment.

When questioned on radio station SEN, Gallagher was even more adamant that no future concussion waivers would see the light of day.

"Anything that looks like it could possibly change the terms and conditions of a player's employment has to come to both the AFL and the AFLPA for approval," Gallagher said

"And quite clearly if it relates to a player's health and safety, those things won't be approved moving forward.

"So that's abundantly clear out of this now; a silver lining maybe from a really difficult situation that everyone's been navigating," Gallagher said.

But as Gallagher suggested, this really difficult situation is a minefield for the AFL and its players.

The problem is insurance.

Zurich Insurance, which provides cover for the AFLPA's superannuation fund, decided earlier this year that it would no longer pay total and permanent disability benefits for players who suffered traumatic head injury, concussion, CTE, post-concussion syndrome or any neurological impairment linked to brain injury.

Previously Zurich was paying out up to $1.1 million.

The AFLPA subsequently wrote to other insurers, asking them to fill the breach, but none came forward.

As it is, players are now only covered through the PA, which has a $54 million Injury and Support Fund that covers the length of the current collective bargaining agreement (CBA).

That fund is paid for by the players.

Players can be paid up to $500,000 under the Football Ending Injury Benefit program, which covers mental health services, dental and more severe injuries like concussion.

There's also a severe injury benefit worth up to $600,000 for players whose impacts are so great that they can have an impact on their future work.

The AFL and the PA have agreed to conduct a review given the dearth of insurance options and the enormity of the concussion issue.

The game finds itself in a precarious situation: The risks of severe concussion and chronic traumatic encephalopathy (CTE) are now widely known and understood.

The underlying question about how to run a contact sport given those known risks is being answered on the run, not only by the AFL but by all collision sports around the world.

If sporting codes are going to allow players to put their body and brains on the line, they also have to provide protection for those players if they're injured.

"The challenge that's facing the industry as a whole is how risk is looked at, how the insurance is looked at, and how the safety net for players and officials is looked at," Dillon said this week.

Gallagher said the AFL was going to come to the party to cover the gap left by insurers.

"What's becoming more and more clear is that the game's going to have to do more to provide that safety net rather than looking externally for it," Gallagher said.

"I think that's evident, and part of the agreement between us and the AFL about the work that comes next was, you know, an expansion of the Injury and Support Fund to broaden that safety net," he said.

As it is, the players who are playing in the Wildcard Round this weekend and the finals over September won't have insurance cover outside of the AFLPA if they sustain a traumatic brain injury.

There's clearly no quick fix.

The best-case scenario is an agreement between the AFL and the PA by the beginning of next season.

However, with the current CBA between the players and the AFL running out at the end of next season, any new agreement on concussion payments could be put off until then.

The joint review will also cover broader issues around concussion, including clearer protocols for the AFL Concussion Panel.

Problems arose when the panel reviewed Kolodjashnij and gave an "amber" finding regarding his risk to continue playing.

"There needs to be clarity whether a player is fit to play or not," Gallagher said.

There are also plans to limit contact training at AFL and AFLW clubs.

The Players Association's attitude is that concussion is the most significant issue in the game by a country mile.

A class action next year led by former Geelong player Max Rooke will hear arguments that he was left with brain damage because of the actions of the AFL and his club.

The court's decision could change the AFL landscape.

Players' health and safety is obviously the top concern, but the broader issue of how they can function after their brief football careers are over if they suffer a traumatic brain injury remains a work in progress.