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One of the biggest issues likely to affect the world of sport in 2021 is the long-term effects of concussion & chronic brain injury.
Here is a piece (and thread
) on some of the key legal issues following the news of legal claims by former rugby players https://www.linkedin.com/pulse/legal-issues-underpinning-rugbys-latest-concussion-brain-jonny-madill/?trackingId=U%2FpC8PcjqJrbKICMLFxD6A%3D%3D
Here is a piece (and thread
) on some of the key legal issues following the news of legal claims by former rugby players https://www.linkedin.com/pulse/legal-issues-underpinning-rugbys-latest-concussion-brain-jonny-madill/?trackingId=U%2FpC8PcjqJrbKICMLFxD6A%3D%3D
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 piece from @sportslawMELB: https://www.irishtimes.com/sport/rugby/jack-anderson-it-is-odds-against-players-will-succeed-in-claim-against-world-rugby-1.4434129. Also look out for @spcott's @LawInSport podcast.
Scientific studies to date point to a link between repeated head trauma in sports like rugby & chronic brain injury/early onset dementia. This has been building for some time (see in particular the 2019 study re the likelihood of professional footballers suffering from dementia).
The potential legal action in rugby is not the first time this issue has come to the fore within sport. We have seen legal action before, most notably in US sport. The most common outcome has been bodies and players agreeing to a settlement (e.g. here https://www.bbc.co.uk/news/world-us-canada-36078274)
The fact that litigation has been rare is not surprising as the threshold for proving a negligence claim against a sporting body is high. Litigation is also expensive and drains time and resources for all involved, and is something sporting bodies will want to avoid.
Despite scientific research building traction, a former rugby player's legal claim for compensation is not automatically going to succeed because of medical evidence. There are ultimately 3 key components which would need to be established from a legal perspective.
A player would need to prove that first, World Rugby or the relevant governing body/regulator owed a duty of care and second, this duty was breached. Third, the injury/damage suffered must have been caused by that breach. This is the boring bit, but taking (briefly) each in turn:
1) A governing body like World Rugby has and accepts the ultimate responsibility for the safety of players & the game as a whole â which many will say is enough to establish a duty of care. A counter-argument is that others such as clubs & medical staff owed duties along the way.
Itâs worth noting that in 2000, 2 players who were seriously injured after a scrum collapsed, claimed that the International Rugby Board (IRB) had failed to discharge its duty to update scrum laws. The Australian High Court decided that no such duty was owed by the IRB.
Also, a governing body will likely argue that the standard of care is high â i.e. a player accepts the risks when they step onto the field. That said, players will emphasise that the standard of care is what existed at the time (i.e. when the trauma took place), not now.
2) World Rugby is viewed as being proactive in leading the charge against concussion & player safety in recent years (e.g. injury-prevention protocols & player welfare education). This would likely be a big factor in assessing whether WR acted reasonably in discharging its duty.
3) Even if 1&2 are proven, a key hurdle from a legal perspective will be âcausationâ. As @sportslawsmelb says, proving the exact causal source of an injury could be difficult given the many parties involved during a playerâs career (clubs, unions, coaching/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. Ultimately each claim will turn on its specific facts which makes it difficult to predict/unpick at this stage.
The conclusion (at least in my view) is that a successful claim (from a strict legal perspective) will be far from straight-forward. It is also something that won't be resolved anytime soon. Equally though, it is only going to become a larger issue if more former players emerge.
In many ways, this issue is about more than simply whether a legal claim will be successful. There's been much debate of rule changes & reform proposals to make sport safer & address these issues once and for all. The potential of legal disputes may help accelerate this process.
One final point: this is not just a rugby issue. Football, whose legacy concussion problems are under huge scrutiny, will be watching closely. The PFA's new taskforce is just one example of sports taking swift action in the knowledge legal claims are a very real possibility.
