Simona, Scott and Jamie were law student scholars, participating in the WS Society Summer Scholarship programme during August 2021. This article summarises their research and presentation.
Introduction
In recent years head injuries, and more specifically concussions in sport, have become an issue of significant concern and controversy both legally and scientifically. This is especially true in sports which involve contact, such as rugby, American football, “soccer”, and boxing. The ongoing rugby litigation has brought this issue to the fore once more.
Concussions
The ambit of head injuries is not limited to concussions; however, for the purpose of this article, we will be focusing on concussions. A concussion is a traumatic injury to the brain. The matter gets increasingly serious when considering second impact syndrome and also the long-term cumulative effect of recurrent concussions. Repetition can lead to, among other things, death, dementia, and Alzheimer’s disease.
Key events leading to the need for mitigation
Several unfortunate events have increased our awareness of the effects of concussions and the need to mitigate the risks associated with them. To list a few: the passing of fourteen-year-old Ben Robinson from second impact syndrome whilst playing rugby in 2011; the $1 billion NFL lawsuit brought by former players in 2013 (settled in 2014 for $765 million to be paid over 65 years); the landmark study published in 2019 by Dr Willie Steward at the University of Glasgow finding that former footballers were three-and-a-half times more likely to die with dementia than the public; since 2020, the law has become involved in the matter once again due to several former rugby union players, all of whom were under the age of forty-five, launching a potential negligence action against the Rugby Football Union, Welsh Rugby Union, and World Rugby.
Mitigation steps that have already been taken
Throughout the sporting world, rules have been introduced, adapted, or even re-emphasised to attempt to mitigate risk. For instance, directly, rugby league banned tackles using just shoulders without using arms as this type of tackling created an elevated risk of concussion. Now, in rugby union, if a hit causes significant contact to the head, irrespective of intention, an automatic red card is issued. In football, recommendations that restrict footballers’ ability to only make ten “higher-force” headers per week during training were introduced. Positively, it appears as if most sports have now effected protocols forcing any player who has had a head collusion to undergo a Head Injury Assessment (HIA). Indirect rule changes have similarly been implemented. Rules that, for instance, increase fatigue, e.g. by reducing the number of substitutes, in the hope that they will lead to less impactful collisions.
“Whatever the rule changes may be, direct or indirect, it is important that they are enforced, and that the health of the players is at the forefront of the decision-making. ”
Duty of care: underlying legal principles
For a claim that a duty of care has been breached to be successful, it must be established that, first, a duty of care was owed by the defendant to the pursuer; second, that the defendant breached their duty of care; and third, that, because of the breach by the defendant, the pursuer suffered damage. It has been noted by the courts that this can be an especially difficult determination in relation to sports.
Sporting duties of care and head injuries
A successful claim in negligence must demonstrate that the defendant owed a duty of care breached to the pursuer’s loss. Establishing a novel duty further relies on the famous Caparo factors: foreseeability, proximity and fairness, justice and reasonableness. Where responsibility for athletes’ head safety lies will differ from case to case; multiple parties may simultaneously owe duties that are distinct but not necessarily discrete.
The English Court of Appeal’s decision in Watson v British Boxing Board of Control suggests that a sport’s governing body may owe participants a duty of care if it takes responsibility for setting mandatory minimum safety requirements; athletes are entitled to rely on such a body’s avowed medical expertise. While the High Court of Australia ruled in Agar v Hyde that the then International Rugby Board did not owe a duty of care to amateur rugby union players in relation to updating safety rules, modern World Rugby’s regulatory function arguably makes it one example of a governing body likely to owe elite-level athletes a duty of care in this regard.
Besides being the primary enforcers of governing bodies’ rules in individual jurisdictions, national sporting associations’ ability to set more stringent safety requirements of their own regarding head injuries may also give rise to a duty of care. As well as ensuring compliance with relevant regulations, these parties could also have a responsibility to adequately inform participants of the risks associated with their sport.
Sports leagues may also set binding rules in relation to head injuries, with similar results. Sports clubs, meanwhile, have a clear duty to ensure employees’ reasonable safety in the context of their work; this can include any person subject to a certain degree of control and not just those paid to play. Health and safety regulations and liability insurance requirements are also relevant.
Vicarious liability for employees’ actions is another important consideration: sports clubs may, for example, be responsible for the negligence of coaches and retained medical staff. Sports doctors owe patients their usual clinical duty of care and must act in an independent manner appropriate to a reasonable and responsible practitioner, bearing in mind the circumstances of any injury and the prevailing medical opinion at the time. This latter is a particularly interesting point, given the evolving understanding of concussion-related injuries. Finally, referees and other athletes have a duty to ensure that the rules of a sport are reasonably adhered to.
Other issues
Even if a duty of care is established in relation to athletes and head injuries, proving that this was breached to the pursuer’s loss is likely to be difficult. While any harm suffered should satisfy the foreseeability test for legal causation, factual causation is another matter: neurological damage may well be the result of multiple concussions sustained across a long athletic career in which multiple parties owed differing duties of care at different points. The circumstances of each case will be peculiar to an individual athlete. Such complexity of causation was a major issue in the NFL litigation and contributes to the likelihood that settlement is also the ultimate outcome of subsequent suits.
Quantifying any loss suffered should be relatively straightforward: injury will include psychiatric as well as physical harm, although athletes are subject to a duty to mitigate. The related defence of volenti non fit iniuria may, however, throw up another significant stumbling block for pursuers. While what athletes could and should have reasonably known at any point will be fact-specific, and while there may be a large information imbalance between participants and governing bodies, some sports arguably involve an obvious risk of long-term brain injury to which an athlete voluntarily accedes. Although an employee cannot consent to the negligence of an employer given the nature of their relationship, and the nature of head injuries raises questions of capacity, this issue is at least relevant to considerations of contributory negligence on the part of an athlete. There may indeed be a public policy interest in sportspeople taking some responsibility for their own welfare.
“While limitational and jurisdictional issues could also arise, the key question is what was (or should have been) known about the risks at any given point – and whether parties’ responses were reasonable.”
NFL & World Rugby: key changes
Still in its early stages, the current UK rugby case has the potential to produce a landmark judicial decision that could change the whole way head injuries are treated in sports, potentially spilling over to other contact and even non-contact sports such as horse racing which can also cause concussive conditions. It remains to be seen whether at the time there was enough information out there to point to the possibility of long-term brain diseases – and whether this was not properly regarded or even ignored, as in the NFL case – but it is important to examine some of the key changes the retired players want to see as they could give us an indication of how the duty of care will alter in the future in order to make the sport a bit safer. A vital step in the right direction is for organisations to finally recognise chronic traumatic encephalopathy (CTE) and related conditions as a real and serious risk of contact sports such as rugby and provide better medical assessments on and off the field.
Towards better medical assessments, treatments, prevention and education
Athletes are often encouraged to “shake it off” and continue playing after risky hits and even when they are pulled up they may only be asked basic questions such as “What day is it?” after which they are allowed to return to the field. This needs to change, both during practice and in competitions, as the symptoms of a concussion are not always the same. The rugby players also want a database to be created where an athlete’s head injuries or trauma can be recorded for future employers in order to minimise exposure. They want contact to be reduced in the game and, finally, more education to be provided to athletes concerning the risks of long-term irreversible brain diseases associated with their sport. This was a significant failing in the NFL case: how could the players provide informed consent if they were not fully aware of the medical impacts of what they were doing?
Suggestions from the wider sports community
Of course, these are only some of the suggestions listed by the retired players. Many of them, however, have been popular with the wider sporting communities for quite a while now. For example, limiting contact: some more extreme ideas of how this could take place include banning tackle and scrum or tiring out the athletes, so they enter such moves with less energy. Another controversial topic is removing heading, which is extremely popular in soccer, with people like former premier league star Ryan Mason having said that it would probably disappear completely within the next ten years.
“However, rule makers and lawyers alike have to always take into consideration the impact changes can make on the nature of sport and the backlash more extreme measures can give rise to within the sporting and fan community. The interests of the players, organisations, fans and sport as a whole have to be consolidated.”
Integrating modern technology and insurance
Better assessment of hits through evolving technology is another solution sports employers need to be aware of – devices exist or are being developed to measure the impact of hits to the head in order to assess the risk an athlete is taking. Many can be attached to headbands or other gear without creating unnecessary clutter and are less invasive on the game. Thorough brain scans with evolving technologies could also be made a compulsory part of periodic health checks similar to other parts of the body such as the heart, including a long-term plan to evaluate even retired athletes for changes of the brain which manifest later but could be caused by their careers. Employers may have to put in place insurance for brain diseases and, if it comes to it, provide hospitalisation and care when symptoms do appear and worsen. The Australian Football League similarly plans to set up a concussion trust fund, a pot of money for the athletes or their loved ones to access in cases of irreversible illness, aiming to somewhat alleviate their struggles.
Conclusion
Continuous developments in the understanding and litigation of head injuries in sports will inevitably bring about changes in what individuals and organisations are required to do in order to care for athletes. Whatever happens in historic cases – including the ongoing rugby litigation – parties could better protect themselves and their athletes in future if they take reasonable steps to move with the times and implement new technologies, take head injuries more seriously, and put in place insurance or trust funds to reflect the very real risk of long-term brain conditions resulting from certain sports.