By Carmen Bănică and Alexandra Mihailov, of MPR Partners
A new negligence claim is underway against the Rugby Football League, involving ten former rugby league players, led by former Great Britain player, Bobbie Goulding, recently diagnosed with early onset dementia due to the numerous head traumatisms he suffered throughout his career. This claim is similar to the one brought by rugby union players, conducted by World Cup winner, Steve Thompson.
Allegedly, the players are not interested solely in financial compensation, but also want to ensure increased protection for future generations of rugby players. The claimants are concerned about the appropriate implementation of protocols by sport authorities at the time they were active and hope this claim will set a precedent for the safeguard of all athletes in contact sports[1].
Head injuries are not a rare occurrence in contact sports, and the long-term effects of multiple traumatic brain injuries are often problematic to assess. If the immediate symptoms of a concussion are quite straightforward, including dizziness, headache or temporary memory loss[2], the implications of head traumatisms in the remote future are most of the time hard to evaluate and even harder to anticipate by the average person. Indeed, people who suffered repeated head injuries are more prone to develop Chronic Traumatic Encephalopathy (CTE), with consequences such as anxiety, depression and, as it is the case here, dementia[3].
Thus, as the case progresses, the discussion should fall upon what is reasonable to assume a player understands and accepts in terms of injuries. It is expected that, when engaging in sporting activities, participants assume risks that are normal, reasonable and that are aware of[4]. The plausible presumption is that athletes are well aware of normal injuries, such as broken bones or muscle strains, but perhaps it is not sensible to expect players, who are comparable to the average person when it comes to medical knowledge, to have the appropriate information on the effects of multiple traumatic head injuries over time.
But if these consequences are inconspicuous to ordinary people, they certainly are not for medical professionals. Even though formally, CTE was discovered in the early 2000s[5], concerns from doctors and athletes have been raised since the beginning of the previous century[6], and neuropsychological testing in sport begun in the 1980s[7], with mixed success. The history of sport equipment in general suggests a similar knowledge evolution on the issue, as the use of helmets and other protective gear first appeared in the early 1900s and became widespread around the 1970s[8]. However, when it comes to rugby, the use of head protection is optional even at present, as players have the choice between wearing it or not.
In the light of that mention, one could also ask themselves whether players can be held accountable, at least partly, for the afflictions they suffer of nowadays, even if they were a direct result of playing the sport. Many athletes do not report injuries mainly because that would imply missing a significant amount of playing time, but also because they dismiss their injury as not serious enough to warrant medical attention[9]. Yet, if they had the appropriate knowledge of the implications of head traumatisms, perhaps this reticence would wither. The question remains if the responsible authorities had this knowledge and whether it was passed on accordingly to the players. Moreover, the players may accept the risks of some injuries, not because they completely understood the implications, but for other reasons[10], such as fearing their contract would not be fulfilled otherwise.
Indeed, it will be interesting to follow the development of the case herein, as it aims to prove that enough information was available to the professional league and the same was ignored, be it because of negligence or ill will. Should this claim be successful, it has the potential to shift the way sport authorities take responsibility for the well-being of the players.
A similar claim was settled in the USA by the National Football League (NFL)[11], which established a fund for 65 years to support players who had developed neurological problems as a result from injuries incurred while playing the sport. The settlement acknowledges the reality that these types of conditions and their symptoms can take decades to develop after the initial physical trauma is incurred, allowing former players to access the fund after playing in the NFL, regardless of the time passed between the participation in the sport and the onset of neurological problems. It remains to be seen if the case herein has the potential to initiate a similar settlement, or if the court proceedings will unfold differently.
There is already greater awareness and understanding of the medical risks involved in such contact sports in the Rugby Football League, as well. This is supported by the League’s decision to implement a program to include new mouthguards that can detect when a player is at risk of having suffered a concussion or head trauma, by monitoring the force of every impact that players encounter during games[12]. Nonetheless, as these mouthguards have been recently developed and introduced in the sport, their current endorsement by the Rugby Football League does not constitute, on its own, an admission that the pre-existing safety standards were negligent, but can be regarded as a conscious effort to improve and protect the health of players.
Furthermore, the case herein is potentially limited by the contractual terms between the players and the League. However, the limits as to what types of legal liability can be excluded or limited through contracts, must be considered. Another important aspect is reaching a balance between the voluntary and informed assumption of the risks involved by the players[13] and the need to impose an obligation to provide safe conditions by organisations. Nonetheless, as the NFL settlement and the introduction of the mouthguard illustrate, there is an increasing level of understanding of the risks of neurological damage associated with sports such as rugby, and it is possible for safety standards and, implicitly, negligence liability, to adapt accordingly in the future, regardless of the outcome of the current case.
It is clear that head injuries are treated with additional attention nowadays, and the focus is starting to shift towards better protection for athletes. The claim herein will definitely add to that effort, be it because of a favourable decision or simply because of the scrutiny it brings to the matter. Whatever the case, the pleas of the parties and the proof to support them is certainly compelling in the matter of sports injuries.
[1] BBC Sport, ”Bobbie Goulding in group of ex-rugby league internationals to sue over brain damage”, retrieved from https://www.bbc.com/sport/rugby-league/59045827, accessed on December 2, 2021.
[2] Nagahiro S., Mizobuchi Y., “Current Topics in Sports-related Head Injuries: A Review”, in Neurologia medico-chirurgica, volume 54/2014, pages 881-882, retrieved from https://www.jstage.jst.go.jp/article/nmc/54/11/54_ra.2014-0224/_pdf/-char/ja, accessed on December 2, 2021.
[3] American Association of Neurological Surgeons, “Sports-related Head Injury”, retrieved from https://www.aans.org/Patients/Neurosurgical-Conditions-and-Treatments/Sports-related-Head-Injury, accessed on December 2, 2021.
[4] Mohamadinejad A., Mirsafian H., Nemes A., Soltanhoseini M., “Assumption of Risk and Consent Doctrine in Sport”, in Physical Culture and Sport. Studies and Research, volume LV/2012, page 32, retrieved from https://sciendo.com/pdf/10.2478/v10141-012-0012-5, accessed on December 2, 2021.
[5] Concussion Legacy Foundation, “What is CTE?”, retrieved from https://concussionfoundation.org/CTE-resources/what-is-CTE, accessed on December 2, 2021.
[6] Harrison E. A., “The First Concussion Crisis: Head Injury and Evidence in Early American Football”, in American Journal of Public Health, volume 104/2014, retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3987576/, accessed on December 2, 2021.
[7] Lovell M. R., “The Relevance of Neuropsychological Testing for Sports-related Head Injuries”, in Current Sports Medicine Reports, volume 1/2002, page 7.
[8] Vachon C., “History and Future of Safety Equipment in Sports”, retrieved from https://prezi.com/sef52nh6y2rm/history-of-safety-equipment-in-sports/, accessed on December 2, 2021.
[9] Chen Y., Buggy C., Kelly S., “Winning at all costs: a review of risk-taking behaviour and sporting injury from an occupational safety and health perspective”, in Sports Medicine – Open, volume 5/2019, retrieved from https://sportsmedicine-open.springeropen.com/articles/10.1186/s40798-019-0189-9#citeas, accessed on December 2, 2021.
[10] Osborne B., “Principles of Liability for Athletic Trainers: Managing Sport-Related Concussion”, in Journal of Athletic Training, volume 36(3), retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC155425/, accessed on December 7, 2021.
[11] Class Action Settlement Agreement, retrieved from https://www.nflconcussionsettlement.com/Docs/Amended%20Class%20Action.pdf, accessed on December 7, 2021.
[12] Bower A., “RFL approves concussion-detecting mouthguards across rugby league”, retrieved from https://www.theguardian.com/sport/2021/nov/18/rfl-approves-concussion-detecting-mouthguards-across-rugby-league-2022, accessed on December 7, 2021.
[13] Mohamadinejad A., Mirsafian H., Nemes A., Soltanhoseini M., “Assumption of Risk and Consent Doctrine in Sport”, in Physical Culture and Sport. Studies and Research, volume LV/2012, page 32, retrieved from https://sciendo.com/pdf/10.2478/v10141-012-0012-5, accessed on December 7, 2021.
