The AFL concussion waiver, the club doctors, the AFL and the AFLPA, and what Australian law actually says.
This is a live matter and things are moving quickly. No findings have been made against any club or individual, and nothing in this article should be read as suggesting otherwise.
In an earlier article I looked at what former AFL players can actually claim for concussion in 2026, and concluded that the no-fault support available to them through the CBA falls well short of the losses consequent on a career-ending brain injury (KPA Lawyers, “AFL Concussion Compensation: What Former Players Can Claim in 2026”). It has since been reported that an AFL club had asked a player with a history of concussion to sign a document accepting legal responsibility for any future brain injury, and releasing the club and its medical staff from liability.
The club has since properly withdrawn the provided waiver. It has however raised a question: can an employee sign away the right to sue their employer for an injury that has not yet happened?
In the context of the waiver provided by a footballer to a club, there are two underlying questions that have had almost no attention: what does a waiver mean for the doctors and what should a governing body (the AFL) actually do about it?
What Happened at Geelong FOotball club?
It has been reported that in 2024, Geelong Football Club obtained a signed letter from a veteran defender with a history of concussion. The player had been cleared to play by the AFL Concussion Panel. The letter recorded the medical advice the player had been given by the club’s Chief Medical Officer and by the Panel. In the letter the player agreed to accept legal responsibility for the consequences of any future on-field brain trauma, while releasing the club and its medical staff from future legal action (The Guardian, “Geelong forced to scrap secret deal with AFL player with history of concussion,” 6 August 2026; AFL.com.au, “Cat at centre of concussion deal speaks, Geelong issued with ‘please explain,’” 7 August 2026).
Geelong’s board approved the arrangement. The arrangement was never lodged with, or approved by, the AFL or the AFL Players’ Association (AFLPA). The story broke on 6 August 2026. Geelong withdrew the document and said it “went further than was intended” and that it “was not attempting to vary the terms of the AFL standard playing contract, or attempting to avoid its responsibilities under health and safety laws” (AFL.com.au, “AFL, Cats release statements amid concussion report,” 6 August 2026). The AFL issued Geelong with a “please explain” notice. No findings have been made against the club or any individual.
The AFL and AFLPA issued a joint statement that evening. It said that any future arrangement affecting a player’s legal rights must be notified to, and approved by, both bodies, and that no arrangement would be approved that seeks to place the risk solely on players (Joint Statement from the AFLPA and AFL, 6 August 2026). The AFLPA separately has informed its Accredited Agents that clubs “cannot unilaterally contract out of their obligations under the CBA and Standard Playing Contract, nor attempt to avoid their responsibilities under health and safety laws,” and that “the game has a duty to provide a workplace that protects the health, safety, and wellbeing of players and all clubs hold this duty as employers”.
This is the correct position: clubs, as employers, owe players a duty as far as reasonably practicable, to provide a safe workplace. But it is worth being precise about why.
You Cannot Contract Out of the Basic Safety Duty
In Victoria, section 21 of the Occupational Health and Safety Act 2004 requires an employer, so far as is reasonably practicable, to provide and maintain a working environment that is safe and without risks to health. In the states and territories that have adopted the national model work health and safety laws – New South Wales, Queensland, South Australia, Western Australia, Tasmania, the ACT and the Northern Territory – the equivalent duty sits in section 19 of the Model Work Health and Safety Act (the Model Act). Victoria is the only jurisdiction that has not adopted the model laws, a distinction much of the commentary on this story has missed.
This duty belongs personally to the employer and cannot be handed off to someone else. It is not something a worker is legally capable of accepting on the employer’s behalf.
In the states that have adopted the model laws, this is written into the legislation directly. Section 272 of the Model Act provides that any term of an agreement that tries to exclude, limit or change a duty owed under the Act, or transfer that duty to someone else, is void (Work Health and Safety Act 2012 (Tas), s 272. Victoria has no single equivalent section.
What this legislation does not do is compensate an employee in circumstances of a breach. This is dealt with in this article later. What the legislation does do is impose regulatory duties on an employer that are enforced by WorkSafe and its interstate equivalents through prosecution and enforcement
Workers’ Compensation
Every Australian workers’ compensation scheme contains a rule against contracting out of it. In most states, an injured worker’s common law claim against their employer is limited to serious injuries and legislated. Any attempt to remove an employee’s rights relating to a future injury through contract can only be seen as an attempt to contract around the statutory compensation scheme.
For an ordinary Australian worker, this is where most claims will sit. Professional sports people are different.
The Common Law, Where THINGS Gets Complicated
Australian law does not prevent the parties contracting so as to exclude liability for negligence. Clear wording can, in principle, exclude liability for negligent conduct – this has been the law since Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500. But an employer relying on such a clause would face a difficult run of obstacles.
How the clause is read: A clause trying to exclude liability for a future personal injury will be interpreted strictly by a court, and any ambiguity will be read against the party relying on it.
The non-delegable duty: An employer’s duty of care to an employee is one of the settled categories of “non-delegable duty” – Kondis v State Transport Authority (1984) 154 CLR 672. The law treats this relationship as one requiring special protection, precisely because the employee depends on the employer’s control of the workplace.
Consenting is not the same as agreeing to give up your rights: The old legal principle of volenti non fit injuria (“no injury is done to one who consents”) requires a person to voluntarily accept both the physical risk and the legal risk. Financial necessity cuts against an employee being said to have acted voluntarily. Consent is no defence to a breach of a statutory safety duty. What genuine, informed consent can affect is contributory negligence, which reduces the compensation payable – it does not extinguish all liability.
Unfairness and pressure: A release presented as a condition of keeping your job, where there is a significant imbalance of bargaining power, is open to challenge.
Public policy: Courts will be reluctant to enforce a release of an employer for personal injury suffered by an employee.
A distinction between a recreational activity and performing your job.
The narrow permission in the Australian Consumer Law for waivers relating to recreational services (section 139A of the Competition and Consumer Act 2010 (Cth); section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic)) is aimed at consumers of recreational activities, not employees doing paid work. A gym waiver and an employment waiver are not the same document. The same goes for the “obvious risk” and “dangerous recreational activity” defences found in the civil liability statutes – they are aimed at people voluntarily taking part in recreation, not workers doing their job.
The Waiver That Does Work: A Release Signed After the Injury
Timing is what matters most here.
A deed of release settling a claim that has already arisen – signed after an injury, in exchange for something of value, usually with legal advice – is routinely valid and enforceable. That is how personal injury cases settle every day.
What Australian law resists is the prospective release – an agreement signed before any injury happens and before any legal claim exists, giving up rights that have not yet come into being and whose value cannot yet be known.
Settling a claim you already have is ordinary. Signing away a claim you might one day have is a very different.
Why AFL Players Are the Exception That Proves the Rule
Here is the part largely missing from the commentary, and the reason the football version of this question is harder than the ordinary employment version.
Professional sportspeople are excluded from Australian workers’ compensation schemes. The exclusion dates back to the 1970s, when sport turned professional and largely amateur sporting bodies successfully lobbied for exemption on the basis that they could not afford the insurance premiums.
The consequence is significant. There is no workers’ compensation scheme that can be said is being overridden by a contractual waiver. An AFL player’s protection rests on regulatory duty for an employer so far as is reasonably practicable to provide and maintain a working environment that is safe and without risks to health. This cannot be excluded.
The Compensation Gap This Sits Inside
None of this is happening in a vacuum, and the numbers matter.
A Four Corners investigation broadcast on 29 June 2026 reported that the Australian Sports Brain Bank has identified chronic traumatic encephalopathy (CTE) in 33 former Australian Rules players, 19 of whom played at professional or semi-professional level (ABC, “Dozens of Australian Rules players diagnosed with CTE expose AFL’s brain trauma crisis,” 29 June 2026). CTE can currently only be confirmed after death, and it has been associated with depression, memory loss, aggression and suicidal thoughts.
Against that, the no-fault support available under the AFL’s Collective Bargaining Agreement runs to a Severe Injury Benefit of up to $600,000 for players who can show a loss of earning capacity of 40% or more, and a Football Ending Injury Benefit of up to $500,000. That support is meaningful, but capped, and it was never designed to fully compensate someone facing a lifetime of lost earnings.
That gap is why players have turned to the courts. In the Rooke v AFL class action in the Supreme Court of Victoria, more than 100 former players now claim in the order of $2 million each plus medical costs, with ten clubs joined alongside the AFL as defendants and a trial listed to begin on 31 May 2027 (Supreme Court of Victoria, Rooke v AFL Group Proceeding; news.com.au, “Concussion class action against AFL and clubs by players set for 12-week trial,” 18 May 2026). The statutory workplace health and safety claim in that proceeding was struck out, but the plaintiffs were given leave to replead it — meaning whether work safety duties translate into compensation rights for professional athletes is precisely the question a waiver of this kind raises.
The Doctors: A Different Question Entirely
The Geelong release named the club’s medical staff as beneficiaries. That fact opens up a set of issues that has had almost no attention, and it may prove to be the most consequential part of this story.
Club doctors are already caught up in this area of litigation. Doctors have been joined as third parties in the Rooke proceeding, and separately a former Richmond player has been granted an extension of time to pursue individual negligence claims against his old club and two club doctors. The waiver adds a new dimension to both.
The duty owed, and the standard applied
A club doctor owes a duty of care to the player as their patient. That duty is not reduced by the fact that the club pays the doctor’s wages.
The standard of care is where it becomes technical, and where an important difference appears.
For diagnosis and treatment, a practitioner in Victoria can rely on the “peer professional opinion” defence in section 59 of the Wrongs Act 1958 (Vic)- broadly, that they acted in a way a significant number of respected practitioners would accept as competent professional practice. New South Wales has an equivalent in section 5O of the Civil Liability Act 2002.
For the duty to warn a patient of risk, that defence is expressly unavailable. Section 60 of the Wrongs Act (and section 5P of the NSW Act) carve the warning duty out. The controlling case remains Rogers v Whitaker (1992) 175 CLR 479: a doctor must warn of a “material” risk, and materiality is judged by what that particular patient would consider significant – not by what the medical profession usually chooses to disclose.
For a player with a documented history of concussion being cleared to return to a contact sport, the risk of further repeated head trauma is about as material as a risk can get.
The paradox: the waiver may be the doctors’ best evidence
Here is the twist. The document that has embarrassed the club may end up helping the doctors.
On the reported facts, the letter recorded the medical advice given by the Chief Medical Officer and by the AFL Concussion Panel. If that is right, it is contemporaneous written proof that specific risk information was given to the player and acknowledged by him in writing. In a failure-to-warn claim, that is close to the strongest evidence a doctor can have – most such claims come down to a dispute about what was said in a consulting room years earlier. Here, there is a signed document.
So the same document may cut in opposite directions: an admission of known risk against the club, and a defence to a failure-to-warn claim for the doctors. How it actually will operate depends entirely on what the letter says – whether it records the substance of the risks, or simply asserts that advice was given.
What Should the AFL Do?
The AFL occupies two roles that are hard to hold at the same time. It is the governing body responsible for player safety across the competition, and it is also a defendant in the Rooke proceeding, with exposure reportedly estimated in the order of $1 billion. Every regulatory decision the AFL makes about the Geelong waiver is also a statement that could be used against it in court. A heavy sanction could be argued that it is a signal that shifting concussion risk onto players is seriously wrong. That tension may be an explanation for a response that began with no sanction and became a “please explain” only after the story became public.
The just resolution, and to my mind the only right resolution, is that the safety duty has to win. A governing body that maintains that the health and safety of players is the highest priority must act that way. A statement that the AFL and AFLPA will advise clubs that any proposed arrangements that impact on a player’s legal rights and protections will be required to be notified to and approved by the AFL and the AFLPA is not enough. To say that the AFL and the AFLPA are aligned, that no arrangements will be approved that seeks to solely place the risk on players, carries an awkward implication: that arrangements placing risk partly on players might be acceptable. There is no lawful version of an employer shifting a non-delegable safety duty onto a worker, whether wholly or in part. A vetting system turns something that should be banned outright into something that is merely subject to approval.
The more coherent position is to prohibit rather than vet. No club should be able to seek or obtain from a player any release, waiver, indemnity or acknowledgement that purports to transfer or limit liability for a future injury, with any such document having no legal effect under the AFL Rules regardless of whether the AFL knew about it.
What DOES THIS Mean for Employers Outside Football?
None of the principles above are confined to sport.
A waiver of personal injury liability signed in advance, whether in an employment contract, an induction pack or a labour hire agreement, is very likely to be ineffective. It cannot get around the statutory safety duty. It will run into the no-contracting-out rules in workers’ compensation legislation. At common law it faces problems of interpretation, unfairness and public policy.
There is also a real argument that such a document increases an employer’s exposure rather than reducing it. A waiver is written proof that a risk was known, understood and specifically thought about at a senior level. In a negligence claim, or in a work safety prosecution about what was reasonably practicable, it is arguably closer to an admission dressed up as protection.
Officers and directors should note that some of these duties attach to them personally. Section 27 of the model Work Health and Safety Act imposes a positive obligation to exercise due diligence, and in Victoria, section 144 of the Occupational Health and Safety Act imposes liability where a company’s breach is due to an officer’s failure to take reasonable care. At the most serious end sits workplace manslaughter, which in Victoria carries a maximum penalty for a company exceeding $19 million (WorkSafe Victoria, “Victoria’s new workplace manslaughter offences”).
Update on 11th August 2026 – THE BROADER ISSUE OF CONTACT SPORT
If you get expert advice that a worker faces a serious risk, that advice is the beginning of your obligation, not the end of it.
In an article written by Peter Ryan that appeared in today’s Age it was reported that “Geelong’s defence of their handling of the controversial agreement it struck with Jake Kolodjashnij will include email correspondence between AFL and Cats’ officials as they liaised on the informed consent document before it was signed off in early February 2024.”
The article reports that “Three industry sources, speaking on the condition of anonymity because of the sensitive nature of the conversations, confirmed to this masthead that key figures at the AFL were aware of the negotiations taking place between the club and the player as well as external insurance officials with emails expected to back that up.”
The article further reports that “The Cats sought advice and guidance from the AFL in devising a path forward for Kolodjashnij, who wanted to play despite having a history of concussion, but devised the final document based on a previous informed consent agreement that had allowed a player to resume his career in the VFL in 2021.”
This brings into play the broader issue of when is it acceptable for a professional athlete, that is being financially rewarded in pursuit of a sporting career, to be allowed to accept the risk of future injury, including the possibility of a catastrophic injury that would have lifelong repercussions?
AFL is a contact sport. It is the premier sport in Australia developed in Australia and much loved. It is gladiatorial and exciting. Players put their bodies and their health at risk in participating. With this risk comes the possibility of enormous reward, both personally and professionally. Lifelong friendships are made from playing the game. Living life is a risk. Business people take commercial risks every day. Professional sports people take risks with their body every day. At what point does the risk exceed the reward?
This is something that clearly was being grappled with by the player, the club and the AFL. Where it goes wrong is that the athlete is always in a vulnerable position, wanting to continue to participate in a game he loves for financial reward. The balance of power is clearly with the club as the employer. Here it would appear that the entities that represent the player’s interest, being the AFLPA and the player’s contracted player agent, were not involved in discussions that directly related to the player’s health and welfare, future earnings and his playing contract. This should not have been allowed to occur. The player should have been encouraged and directed to seek the advice of the AFLPA and his agent. It is unclear whether or not this occurred.
Is it time to give consideration to moving to an adequate “no fault” compensation scheme which adequately compensates AFL players in circumstances where they suffer an injury whilst playing or training for their sport? Currently the compensation scheme is inadequate with no-fault support available under the AFL’s Collective Bargaining Agreement limited to a Severe Injury Benefit of up to $600,000 for players who can show a loss of earning capacity of 40% or more, and a Football Ending Injury Benefit of up to $500,000. That support is meaningful, but capped, and it was never designed to fully compensate someone facing a lifetime of lost earnings.
It is time to open up a wider debate. If the public want the game to continue to be played it is unreasonable to put the risk onto the player without an adequate compensation scheme in circumstances of an unfortunate catastrophic injury.
Frequently asked questions
Can an employer make me sign a waiver for workplace injuries?
An employer can ask. Whether the document actually does anything is a separate question. A waiver cannot get around an employer’s statutory work health and safety duty, and in most cases it will also run into the no-contracting-out rules in workers’ compensation law. Refusing to sign is not misconduct.
Can I claim if I only played at semi-professional or state level?
The risks of repeated head trauma are not confined to elite competition. An available claim will depend on, where and when you played, who owed you a duty of care, and the medical evidence.
Are liability waivers legally binding in Australia?
Sometimes, in narrow situations. Waivers for recreational services can be effective under the Australian Consumer Law, and deeds of release settling an existing injury claim are routinely enforceable. A waiver of future personal injury liability signed in advance, inside an employment relationship, is very unlikely to work.
Can I sue a club doctor as well as the club?
Potentially. A club doctor owes a duty of care to the player as their patient, regardless of who pays them, and doctors have already been joined in existing AFL concussion litigation. Whether a claim succeeds depends on the standard of care applied, what warnings were given, and most often the deciding factor – causation.
Does a doctor’s advice protect the club?
No. Getting medical advice does not discharge an employer’s safety duty; acting on it does. Advice about a serious risk creates an obligation to control that risk, so far as is reasonably practicable.
What should a governing body do when a club obtains a waiver from a player?
Prohibit the practice rather than vet it. A rule requiring such documents to be notified and approved implies that some versions might be acceptable, and puts the governing body in the position of approving an arrangement that is probably void anyway. A review of existing agreements, and penalties directed at the substance rather than the filing failure, is the more coherent response.
Did the player give up his right to sue?
Almost certainly not. The club itself has said it was not attempting to avoid its health and safety obligations, and has withdrawn the document. Signing an ineffective release does not extinguish rights the law does not allow to be given away in that manner.
What happens if I refuse to sign a document my employer gives me?
If you are penalised for refusing, that may amount to “adverse action” under Part 3-1 of the Fair Work Act 2009 (Cth), which places a reverse onus of proof on the employer under section 361 (Fair Work Ombudsman, “Protections at work”). Get advice before you sign, not after.
Do these rules apply to contractors and volunteers?
The work health and safety duty is owed broadly to workers, including contractors, and to others put at risk, so the safety duty cannot be waived in those relationships either. The workers’ compensation position is different, which is why those arrangements need individual review.
Does signing a waiver affect a concussion class action claim?
Eligibility turns on when and where a person played, not on whether they signed a club document. Limitation periods apply to common law claims, so anyone concerned should get advice on their own circumstances promptly.
How KPA can help
Ray Purcell is the Managing Partner of KPA Lawyers, an accredited AFL/AFLW and NBA player agent, and an experienced commercial litigator. That combination means he sees documents like this from both sides of the table – the player’s side, and the organisation’s side.
If you are a current or former player who has been asked to sign a document affecting your legal rights, or you would like clarity on your entitlements, contact us before you sign.
If you are an employer, director or medical practitioner working in professional sport, we can advise on where your duties actually sit – and on whether the documents you rely on do anything at all.
