There’s growing concern about concussion-related injuries in contact sports like rugby and American football.
Several high-profile collisions between participants and a growing body of research about their impact have drawn attention to the adequacy of the safety protocols in place to protect players.
Since 2020, the debate has taken a legal direction, with an increasing number of former rugby union players joining a potential negligence action against the Rugby Football Union (RFU), the Wales Rugby Union (WRU) and World Rugby. The ex-players claim they’ve been left with permanent brain damage because of repeated head collisions and concussion.
The impact of this litigation could be significant for sport. It raises some important questions about why there are concerns about concussion, how a sports body can be found responsible for negligence and the overall impact on the sport itself.
Why is concussion such an issue?
Brain injuries and the long-term health effects in professional sport came under intense scrutiny in 2013 during the $1 billion (£705.7m) lawsuit filed by former professional American football players against the National Football League (NFL) in the United States.
Allegations included concealing data that showed an increased risk of brain diseases among professional American football players. One of those risks include chronic traumatic encephalopathy (CTE), a degenerative brain disease which is diagnosed upon death and can be caused by repeated blows to the brain. Symptoms associated with CTE can include depression, short-term memory loss, confusion and dementia.
Focus on concussion in other contact sports like rugby became amplified following the NFL litigation, particularly due to the similarities between the styles of the two sports. The case had a substantial impact on rugby at all levels, including the introduction of restrictions on scrums and tackles in school rugby.
Concussion might be an inevitable part of the game of rugby but can lead to serious irreversible health conditions like CTE which for many years haven’t been the focus of attention. Second impact syndrome (where the brain suffers two successive blows in quick succession) is another related condition that can be fatal.
In order to mitigate the risk of injury, the RFU’s current rules state that players must not do anything reckless or dangerous to others on the pitch. Still, there are concerns around whether these rules provide sufficient protection.
The rugby players involved in the lawsuit claim that the governing bodies breached their duty of care by failing to ensure their individual safety and protect them from permanent brain injury.
Negligence is a civil law mechanism that protects claimants and places liability on those who commit a civil wrong through the identification of a duty of care between two parties, a breach of that duty, a causal link to the harm, and foreseeability of damage. The application of the traditional rules of negligence to sport has been continuously debated in the courts but they have confirmed in various cases that a duty of care is owed by participants, referees, occupiers of sports premises, governing bodies, coaches, and medical professionals.
However, the courts have also recognised the intricacy of applying negligence to sport, emphasising that in identifying the standard of care owed, there must be consideration of the specific and unique nature of sporting activity. There are inherent risks associated with sport that result in injury and these are generally accepted as being a key part of the essence of contact sport. That’s why there’s such a struggle of balance between attempting to differentiate between inevitable injury resulting from the sport and unlawful harm resulting from a failure to protect players.
Rugby players are likely to face several legal challenges, notably around the successful application of the negligence criteria. The courts have varied views on extending the scope of negligence to the liability of a governing body to its participant.
One of the main challenges for this group of former rugby players will be proving the protocols on head injuries during their career under the auspices that governing bodies were inadequate, based on knowledge at the time, in safely managing brain injuries. If proven, the next challenge would be to show this inadequate management is what has caused their permanent brain damage.
The wider impact on rugby
The relationship between sport and the law and the legal accountability of sports bodies is complicated. In the UK, government intervention in sport is limited and the law tends to be mindful of the special qualities of sporting activity, instead deferring to the autonomous and self-regulatory authority of the governing body. This regulatory struggle often leaves athletes in a vulnerable position when seeking protection of their rights.
Nevertheless, the Rugby Players’ Association (RPA) insists that player welfare is a key priority and is supporting scientific research into diagnosing concussion. Players need a representative body with complete independence whereby they can assert their rights freely and get support with understanding law, sport and wider issues.
Overall, while there’s an established duty of care between rugby’s governing authorities and its participants, it won’t be easy for the players to prove that sports bodies’ negligence caused their unfortunate injuries.
The players have indicated this isn’t about changing the game or preventing people from playing but rather ensuring the game is as safe as possible while maintaining its unique characteristics. Beyond that, this is also about athletes’ rights. It’s been suggested that a settlement may even be the best option to place athlete welfare at the top of the agenda, assisting with medical bills rather than suffering costs in court. Whatever the outcome, the impact on sport and the future welfare of players, will be significant.
Elliott Hagan, LPC student at BPP University in Manchester and former paralegal at British Cycling, contributed to this article. Elliott graduated from Nottingham Trent University with a degree in law with criminology and a masters degree in sports law