Pucovski may face an uneven playing pitch when it comes to compensation

Will Pucovski always had that certain swagger about him, with a mountain of courage and fortitude. As an opening batsman must.

Any instance of a professional athlete calling time on their career brings a spectrum of emotion. But when the athlete’s hand is forced due to an accumulation of incidents, the mood of the contemplation is much darker.

When that athlete represents the epitome of a destiny unfulfilled, the conversation is devastating. To retire at 27 years of age and having played just one Test for Australia in 2021, that would chew at anyone’s inner thinking.

It must be enormously confronting as a 27-year-old to admit to yourself that you won’t play any cricket any more. But still not as terrifying as it would be to suffer serious concussion-related symptoms more than a year after the last in-match incident.

Did Pucovski suffer from a total of six, nine, 13 or perhaps more concussions, as a consequence of being struck on the helmet by a cricket ball? In a real sense, it doesn’t matter. Two concussions can be too many.

Some will argue that hurling a cricket ball at 140km/h, so it bounces off an unpredictable turf wicket towards an opponent’s head is the antithesis of good sport.

But the outright banning of dangerous activities in an otherwise free and liberal society isn’t usually the antidote to any problem. Outlawing short-pitched bowling in cricket would shred the fabric of the game, when The Laws of Cricket already give umpires the required powers to deal with cases of dangerous bowling.

Illustration: Simon LetchCredit: Fairfax Media

The better focus is this: professional sporting careers are fragile things. Eventualities such as Pucovski’s premature retirement shine a light on just how different professional athletes’ actualities can be. The more pertinent consideration is one of how professional athletes are protected; or not.

In substitution for considering the case of Pucovski and his employment with Cricket Victoria as a professional athlete, assume instead the case of a person working as a bouncer on the front door of a Melbourne nightclub.

Being a bouncer must be a rather dangerous gig. That goes with the territory. But getting punched in the head by overconfident drunkards can rattle your brain.

The brain isn’t geared to pinball around inside your skull. Such a happening can inflict horrible symptoms, long-lasting illness, and in some cases irreversible degenerative neurological conditions.

Will Pucovski leaves the field in 2024 after being hit during a Sheffield Shield match.Credit: Getty

In that context, even the toughest of tough nightclub doormen might need the occasional time off work, to recover from such a concussion and its serious consequences. To that juncture, there’s nothing which distinguishes between the nightclub bouncer and Pucovski.

Further, the rather uniform workplace health and safety laws in force in Australia operate so that employers owe statutory obligations to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by them, or whose work activities they influence or direct.

Again, no difference exists if you’re a nightclub employee or a professional cricketer. Also, the legal duty catches not only direct employers – such as Cricket Victoria – but also governing bodies further up the governance food chain overseeing competitions, such as Cricket Australia.

However, while workplace obligations owed to nightclub bouncers and professional cricketers are the same, the situations of professional sportspeople are distinguishable from our nightclub bouncers in one important context.

Sticking with Victoria as an example, as that’s where Pucovski lives and has worked for Cricket Victoria, except for jockeys and harness racing drivers, that jurisdiction’s Workplace Injury Rehabilitation and Compensation Act makes it law that if a person is engaged by an employer to participate as a contestant in a sporting or athletic activity, neither the employer nor the Victorian Workcover Authority is liable to pay compensation for an injury received by the person.

That exemption applies to situations where the professional athlete suffers the injury during a match or contest; if the athlete is engaged in training with a view to competing; or if the person is travelling to or from their home to the place where the competition or training is taking place.

So, we’re left in this kind of bind. If a nightclub enforcer is subjected to repeated concussions that in the end force him into an early retirement, there’s a statutory no-fault worker’s compensation system that offers at least some degree of a safety net. For professional sportspeople on the other hand, there’s no corresponding protection.

In the days and weeks to come, perhaps you’ll hear things about Pucovski seeking to negotiate a settlement with cricket’s governing bodies. Cricket Victoria will respond publicly; things might become somewhat protracted. Undoubtedly, there’ll be questions asked about whether Pucovski’s retirement properly entitles him to any payment or other resolution.

Rightly or otherwise, you might form a view that a settlement is inappropriate because Pucovski knew the risks when he signed up to be a professional sportsperson. None of that is untrue. Professional cricket isn’t tiddlywinks; you’re a good chance of getting seriously hurt, just like rodeo riders and boxers are.

But just temper your thoughts about this: if you smash your head at work or have your head smashed in for you by someone else while you’re on the boss’s dime, there’s a system of legal protection in place that looks after you, which professional athletes don’t have.

Yes, Pucovski might be protected by some form of career-ending insurance policy negotiated by Cricket Victoria, Cricket Australia or the Australian Cricketers’ Association; but those policies are tightly worded, and insurers have tall buildings in the CBD with their logos plastered all around because they can afford it, not because they can’t.

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