[Author: Trusha Modi, Student of Law at Jindal Global Law School, India]
The game of rugby, also referred to as football in many parts of the world, is facing an existential threat because of its level of physicality and risks associated with long-term health of players. The dark side of this sport was revealed in a match between Pittsburgh Steelers’ and Cincinnati Bengals in 2019, played in the US National Football League (“NFL”). After suffering questionable hits over their heads, players critically suffered from concussions and brain injuries that resulted in them being stretched off the field. Based on scientific evidence, researchers have concluded that repeated hits to head i.e., suffering from repeated concussions results in early on-set dementia and Chronic Traumatic Encephalopathy (“CTE”), a degenerative brain condition that causes irreparable and incurable damage to the brain. Given the grave health consequences associated with concussion, both long-term and short-term, it has increasingly been recognised as a public health priority. The unwritten rule of football “If you can walk, you can play” has resulted in serious brain damage for many players. Studies reveal that out of the retired NFL players who were examined, 99% showcased signs of CTE. Former NFL players brought a class-action suit against NFL contesting that NFL was negligent as it did not disclose the risks of CTE, and also buried the relevant medical data. However, it is pertinent to note that these class action suits were settled.
Presently, Rugby Football league (“RFL”), a sport governing body that regulates professional rugby in the UK is hit by a lawsuit, where the players have alleged that the league body has failed to protect them from the aforementioned health risks. In this background, this article analyses whether RFL can be held to be negligent under the law of negligence for causing brain injuries. It elucidates the distinction between the NFL and RFL concussion litigation and the potential arguments that could be taken up by the RFL litigants.
NFL and RFL: Application of the doctrine of ‘Volenti non fit injuria’
On April 22, 2015, the settlement for $765 million between NFL and retired NFL players was approved by a final order and judgement in the case titled In Re: National Football Leagues Players’ Concussion Injury Litigation. The players in the said NFL case were able to claim a settlement because NFL covered up research on repeated head injuries which causes long-term brain diseases. It essentially failed to reasonably and properly warn the players about the dangers associated with the sport, and breached its duty to protect the players from the serious risk of traumatic brain injuries. The main rationale behind the settlement was the information asymmetry that existed between players and the NFL, pursuant to which the players could not reasonably foresee the potential harm. Consequently, players assume risks that are inherent to the game and since players did not have knowledge about such risk, they could not have assumed it. Therefore, ‘volenti non-fit injuria’ was a weak defence for NFL to claim against the players. However, the NFL settlement does not establish a settled principle in law that players are entitled to damages for suffering from brain damages due to concussion, insofar as the same has not been settled by the Court. Therefore, in each case of concussion-based negligence claim, the Courts have to reconsider on merits.
Considering each case on its merit, the defense of voluntary assumption of risk becomes important to examine. This is because of the increased awareness about the brain damages associated with playing football. Consequently, it can be argued that players have explicitly waived off tort claims as they are aware of the long-term brain damages after the NFL litigation and scientific research. Therefore, long-term brain damages have become an inherent risk of participating in the sport. The sport governing bodies are relieved from their duty to protect the players as the risk at issue is reasonably foreseeable and perfectly “obvious” risk associated with playing professional football as noted in the case of Murphy v. Steeplechase Amusement Co. The RFL players are aware of the brain damage that they can potentially suffer when they enter the playing arena. Therefore, it would be difficult for litigants to establish that RFL was negligent and should provide for damages for brain injuries caused.
Return to play protocols: Duty to provide sufficient medical facilities
Recently, there has been an increased scientific research and evidence about “second-impact syndrome” i.e., after the first hit the brain is left more vulnerable and susceptible to subsequent injury. This means that players are at an increased risk of higher brain damage, if they suffer second concussion immediately after the first one. Consequently, they should return to play only after a sufficient interval. Therefore, instead of arguing that RFL has failed to warn the players with the risk of concussion as in the NFL litigation, the RFL litigants can argue that the existing ‘Return-to-play’ and ‘Pitch-side assessment’ protocols are not providing sufficient medical treatment after sustaining concussion injury. The argument can be supported by the case of Watson v. British Boxing Board of Control (“BBBC case”). The Court in this case was posed with the question whether a sports governing body (“SGB”) and participants are in a ‘proximate’ relationship, and therefore, whether SGBs owe a duty of care towards players. The Court categorically held that “there exists a sufficient degree of proximity between the BBBC and the plaintiff boxer, as BBBC assumed responsibility for determining medical facilities and assistance to be provided to boxers. Additionally, the governing body also had a level of medical expertise which participants were entitled to rely upon.” Therefore, SGBs not only owe a duty of care, but also owe a duty “to ensure that injuries already sustained are properly treated”.
According to the test of negligence laid down in Caparo Industries Plc v. Dickman, for the RFL litigants to claim damages, RFL should owe a duty of care and there must be reasonable proximity between RFL and the athletes. Based on the reasoning of the Court in the BBBC case, it can be established that RFL not only owes a duty of care towards players, but it also owes to provide them sufficient medical facilities and assistance. This is because RFL have a medical expertise which the players rely upon. For instance, the call whether a player should return to play after getting concussed is made by the on-field doctor provided by RFL and even the concussion management rules i.e., ‘Play-to-return’ and ‘Pitch-side assessment’ rules are determined by RFL. Therefore, for a claim of negligence to succeed against the RFL, litigants need to be prove that the current concussion management protocols provide for insufficient medical care even when clubs had resources both medical and paramedical to protect players health.
Furthermore, a problem can arise to establish causation in law. However, it could be overcome by a stronger causation argument i.e., establishing a relation between a player returning to play and the second injury after return to play, coupled with improper care as the result of brain damage. This could be substantiated by the Neville v. St Michael’s College & St Vincent’s University Hospital case wherein a failure to provide proper care by the hospital and school in relation to the first knock to the head that the plaintiff suffered was held to be negligence. But establishing causation is circumstantial in nature and depends upon facts and human probabilities. In addition to this, it will also be difficult to establish insufficient medical care as governing bodies like RFL follow scientific research in relation to concussion management protocols. For instance, in 2022, RFL has amended its return-to-play protocols from 7 days to 11 days for players who fail concussion test based on a recommendation by the sport’s clinical advisory group.
The problem of concussion in rugby is growing. Similar class-action suits as RFL is brought against National Rugby League (NRL) in Australia from players suffering long-term impacts of concussion and also against the World Rugby. The long-term effects of concussion includes, inter alia, significant signs of trauma, advanced CTE, dementia, memory loss. It also causes mental condition that leads to the tendency of suicide as committed by a number of former NFL players. The health and well-being of athlete should be paramount importance even in a high contact violent sport like rugby. The ‘Return-to-play’ after ‘Pitch-side assessment’ protocols needs to be strengthened, as in law, despite the settlement of NFL concussion litigations, a claim of negligence from the former and current players of RFL will have very unlikely success. The defence of voluntary assumption of risk possesses a major threat before it. Further, a claim can succeed only if it is proved that the Return to play rules provide for insufficient medical care. In addition to this, the potential litigants will also find it very difficult to establish causation in law in relation to concussion management protocols.
*For any query, feedback, or discussion, Trusha Modi can be contacted at [firstname.lastname@example.org]
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PREFERRED CITATION: Trusha Modi, Concussion Class Action Suit against Rugby Football League – A Question of Negligence?, SLPRR <https://sportslawandpolicyreviewreporter.com/?p=2163> September 3, 2022.
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