Rugby head injuries face a legal test: Opinion

Rugby head injuries
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Recent developments indicate that rugby head injuries and delayed onset mental health issues will be presented to courts worldwide to test if there was any negligence by clubs and rugby organizations.

Current status

Although World Rugby has made a number of changes to the laws of the game, head injuries are always a risk. There is a growing group of players who have indicated that they will be taking their former employers to court for the head injuries and mental health challenges they face. Hundreds of players have indicated that they are following this route, some of them anonymously.

We must first point out that player safety will always be of paramount importance. Some of the comments made here are intended to question the process and not to belittle the serious issues some former players are facing, such as early-onset dementia and depression.

Ryan Jordan considers some of the difficulties any potential court cases face. A few former players were approached for comment on the subject, but all declined the opportunity to participate.

Rugby Union head injuries

There are a few things that could make proving a case of negligence against World Rugby or any team that a player has represented.

Player understanding of the dangers of contact sport

Putting the emotion and enthusiasm of playing the wonderful game of rugby aside, every player knows that this is a contact sport with the inherent dangers attached to it. A player who disassociates themself from this danger is not being entirely honest. We also need to be cognisant of the fact that we live in a society that is constantly learning about itself and its environment. What was once thought to be not bad for humans is now touted as bad for us and vice versa. Could it be that rugby head injuries could fit into that same statement? Unless negligence or hiding the truth can be unequivocally proven, is it anyone’s “fault” or simply that we know have more knowledge?

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What could be difficult to prove?

This is where the legal minds would have to apply themselves. The players would have to prove negligence by World Rugby. Although fairly late in the piece, World Rugby has been cracking down on anything termed to be a ‘head hit’. There have been issues in terms of applying the laws consistently, but the intent is there. The burden of proof would also be on the players to prove that World Rugby was hiding information from the players regarding the possibility of mental or nervous system conditions after continuous head injuries and did not act on it.

There is a precedent in this type of lawsuit. The NFL paid a settlement amount when faced with a similar charge. The key difference between the two cases is that the NFL is the governing body of gridiron football in the USA. The rugby case is more of a scattergun approach, targeting clubs in countries around the world, national governing bodies and World Rugby. Unless there is a clear case of a team selecting a player that has been advised not to play as laid out by the World Rugby protocols at the time, how can the club or national organization make a different decision unless they had superior medical information? It should also be remembered that before the medicals teams were able to call a player of the field to undergo a Head Injury Assessment (HIA), a player could shrug off a serious head knock with the same lack of understanding of the consequences that the management staff did.

Where and when did the injury happen?

Long term head injuries are generally not the result of one single blow to the head. With players moving between teams in the professional game, determining which club or national body should be held liable for a player’s injury? The easiest example to use to illustrate this point is that of a Sough African player who has been internationally capped. For this example, we can use Willie le Roux. Should he be diagnosed with a serious brain injury due to playing the game, who exactly should be held responsible? He has played for Boland, Cheetahs, Griquas, Canon Eagles, the Sharks, Wasps and Toyota Verblitz in addition to being a capped international for South Africa. It would need specific and clear medical records that he was forced to play after a serious head knock.

What could the players themselves have done to protect themselves?

In terms of precaution, there is very little a player can do on the field to prevent serious head injury. A scrum cap is scant protection against head injury. A mouth guard was originally thought to provide a level of protection, but the reality is that it provides no significant protection when there is direct contact to the head.

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If a player returns to the field of their own accord, knowing that they have taken a significant strike to the head, they are complicit as any coach that forced them to take the field, even if this was the result of ignorance of the dangers. The conversation does become very different though if a player is instructed to return to play even if they are very obviously concussed. This starts reaching into the realm of personal liability of the person who gave the instruction. It might become even murkier if this route is followed as it is unlikely that a governing body will easily agree to liability on behalf of an empl0yee, be it medical staff or the coach, who gave such an illegal instruction that they would not have been mandated by contract to do.

The lingering questions

Why now?  It comes over as a little odd that this large group of former players has suddenly appeared to state their claims. There is probably a level of strength in unity, but where have they been until now? The group has created what is called the 15 commandments in dealing with head injuries. This is a positive input from the former players and admirable in terms of coming up with solutions, but again the question begs why litigation is used as the initial step to address their plight?

The likely outcome

With some of the uncertainty around proving culpability or if any information was withheld from players, winning a court case is not guaranteed. A more likely outcome is that the players listed in the litigation will receive a level of financial compensation to put the case to rest. A few will probably be invited to collaborate with World Rugby to further strengthen the fight against serious head injuries that could lead to long term health issues.

 

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