By Prof Dr Steve Cornelius, Head of Private Law Department, University of Pretoria, South Africa
Media reports indicate that a group of up to 80 former international rugby union players are gearing up to take legal action against the Rugby Football Union in England and World Rugby. These players are all suffering from the long-term side-effects of concussion, which range from memory loss to early onset of dementia.
This action comes in the wake of the claims against the National Football League in the United States, in which former American football players claimed compensation for the long-term side-effects of concussion. These claims not only focused on the rules of the game, which increased the risks of concussion and failed to deal with head trauma sustained on the field of play. There were also accusations that the NFL were aware of the risks; withheld that knowledge from the players; and failed to take decisive steps to protect players. In the end, the NFL settled the claims for a total amount, including legal fees, of around US $1 billion.
World Rugby took notice of this settlement and introduced new concussion protocols to identify and treat head trauma more effectively. This included mandatory evaluation by a pitch-side physician whenever a player took a knock against the head.
However, in parallel to the NFL case, there appear to be claims that World Rugby may have been aware of the long-term side-effects of concussion and suppressed that information or failed to act adequately on it. Only time, however, will tell whether these allegations have any substance.
However, as I indicated in a two-part article “The expendables: Do sports people really assume the risk of injury?” 2015 (4) Global Sports Law and Taxation Reports 8 and 2016 (1) Global Sports Law and Taxation Reports 6, the traditional view that athletes assume the risk of injury or consent to injury when they participate in sport, is outdated and no longer tenable in a time of professional sports. Sport is a profession and, like any other industry, occupational health and safety should be the prime concern for sports administrators.
World Rugby has certainly made significant progress in this regard, but the real intervention only came after the legal action against the NFL. There may be a lot to account for prior to the introduction of the new concussion protocols. One can also question whether enough has been done to protect players against head trauma.
One area of concern has been the inconsistent application of on-field disciplinary rules aimed at promotion of player safety. One match official will not hesitate to hand out a red card for a dangerous tackle, whilst another may merely award a penalty for a similar offence. Some match officials appear to take into consideration whether dangerous play was intentional or accidental. This should be irrelevant. Dangerous play, in my view, should receive the maximum on-field sanction in each instance. That would ensure players take safety seriously and be more cautious when they play.
As a result, it is clear that World Rugby and National Rugby Union Federations will have some explaining to do when the present matter comes to court.
Perhaps Sports Federations can take some lessons from Formula 1 motor racing. From a point in the 1960s and 1970s where fatalities were an annual occurrence, Formula 1 has introduced a series of safety measures – some of them unpopular at the time – to make the sport as safe as it can possibly be. This ranged from the redesign of racing cars and racing tracks, to introduction of the HANS head and neck restraining system, as well as the halo device which protects the head of a driver in an open-cockpit racing car. Drivers complained that the HANS device restricted their movement, whilst drivers and fans slated the halo device when it was introduced. However, with the recent crash of Romain Grosjean at the 2020 Bahrain Grand Prix, the halo device made the difference between decapitation and surviving uninjured. The introduction of improved fire-proof race suits also meant that Grosjean walked away from a fiery crash that should, under other circumstances, have proved fatal.
Contact sports will have to do more to protect players against head injuries and the debilitating long-term effects that they may have. Some studies have suggested that sub-concussive hits are often much more dangerous in the long term.
Although players may not always like the introduction of safety equipment or safety protocols, in the long run, I am sure that they will come to appreciate the benefits of them!