THE LEGAL ISSUES UNDERPINNING RUGBY'S LATEST CONCUSSION AND BRAIN INJURY CHALLENGES
One of the biggest issues likely to affect the world of sport in 2021 is the ongoing debate surrounding the long-term effects of concussion and chronic brain injuries in contact sports. The recent news that a number of former professional rugby union players are intending to bring legal action against World Rugby, as well as the RFU in England and the WRU in Wales, after developing early onset-dementia, has increased the level of scrutiny and coverage on the issue.
This article looks at some of the key legal issues when considering what a legal claim by a former player might look like, what we can learn from previous disputes both within rugby union and the broader global sporting context, and what we can expect to happen next.
The medical evidence and sporting context
Firstly, anyone wanting to better understand the legal basis of any claim by a former player against a sporting body, especially in the rugby context, should read this Irish Times piece by leading sports law academic, mediator and arbitrator, Professor Jack Anderson, a pre-eminent expert in these issues.
Scientific data and studies to date point to a link between repeated head trauma in sports like rugby, and chronic brain injury and early onset dementia (as well as the degenerative brain condition known as chronic traumatic encephalopathy (CTE)). This research has been gaining momentum and traction for some time (see in particular the 2019 study which found that professional footballers were three-and-a-half times more likely to die of neurodegenerative disease than age-matched members of the general population).
The potential legal action in rugby which is now front-and-centre of the sport's focus is not the first time this issue has come to the fore within professional sport. We have seen legal action before, most notably in US sport. The most common outcome has been the agreement of a settlement between sporting bodies and players, such was the case with the NHL, the NCAA, and most notably in 2016 between the NFL and a group of retired players who suffered brain damage following concussions.
The fact that litigation has been rare is not surprising because the threshold for proving a negligence claim against a sporting body is high. Litigation is also expensive, drains time and resources for all involved and given the nature of the subject matter is something that sporting authorities will ultimately want to avoid.
Legal claims by former players: the key issues
Despite scientific studies building traction, a former rugby player's legal claim for compensation is not automatically going to succeed because of medical evidence. There are ultimately three key components which would need to be established from a legal perspective.
A player would need to prove that first, the relevant governing body or regulator (whether World Rugby, the RFU, the WRU or otherwise) owed them a duty of care and second, that this duty had been breached. Third, the injury/damage suffered must have been caused by that breach. Taking (briefly) each in turn:
1. Duty of care
A governing body which sets a regulatory framework for a sport carries a responsibility to ensure that such a framework promotes a sport that is safe for players and participants. This is intrinsically linked to the type of sport and activity (such as whether it is, by its very nature, a contact sport). In the World Rugby context, some will say that is enough to establish a duty of care. That may be correct, but arguably it is also quite a narrow duty.
It's important to bear in mind that there are other stakeholders (such as clubs and medical staff) who also owe duties of care to the participant 'along the way', and whose acts or omissions may be factors. This is a point that regulators/governing bodies will no doubt be keen to emphasise.
It is worth noting that, in 2000, two players who were seriously injured after a scrum collapsed during a club game in Australia, claimed that the International Rugby Board (IRB) (amongst others) had failed to discharge its duty to update scrum laws. The Australian High Court decided that the IRB (and other governing bodies) did not owe a duty of care to the players and it was not for the IRB to require local bodies to adopt rule changes.
And it is not just a question of the duty of care, but also the standard of care: i.e. a player accepts certain risks when they step onto the field, in particular in collision-based sports such as rugby, and those risks will always be present (however the sport is regulated).
2. Breach of duty of care
World Rugby is largely viewed as being proactive and innovative in leading the charge against concussion and player safety in recent years (e.g. injury-prevention protocols and player welfare education). This would likely be a key factor in assessing whether World Rugby acted reasonably and responsibly and therefore discharged its duty. That said, players will emphasise that the standard of care is what existed at the time (i.e. when the trauma took place) rather than now, in a world of concussion protocols and far greater levels of education.
3. Causation
Even if (1) and (2) are proven, a key hurdle from a legal perspective will be ‘causation’. As Jack Anderson points out, proving the exact causal link between the act or omission and the injury could be difficult given the many parties involved during a player’s career (clubs, unions, coaching and medical staff etc.)
However, players may still argue that the injuries suffered 'flow' from regulatory decisions (e.g. tackle laws) which in turn led to or informed training decisions, and as such the chain of causation is not severed. Ultimately each claim will turn on its specific facts which makes it difficult to predict or unpick at this stage.
Concluding thoughts
The conclusion (at least in my view) is that a successful claim (from a strict legal perspective) will be far from straight-forward for the reasons set out above. It is also something that won't be resolved anytime soon. Equally though, it is only going to become a larger issue as we start to better understand the correlation between head trauma and brain injury, and more former players emerge as potential claimants as part of this or indeed other legal actions.
In many ways, however, this issue is about more than simply whether a legal claim will be successful. There has been much debate surrounding possible rule changes and reform proposals to make sports at all levels safer, and to address these issues once and for all. The potential of high-profile and costly legal disputes may help accelerate this process.
As a final point, this is far from being simply a rugby union issue. Football's stakeholders, whose legacy concussion problems are under huge scrutiny, will be monitoring developments closely. The PFA's recently launched brain injury disease taskforce is just one example of sports taking swift action in the knowledge legal claims are a very real possibility.
