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Just over two months ago, compensatory pay outs in relation to concussive head injuries in American Football reached a high of $500million. The NFL, the sport’s governing body, accepted a settlement five years ago in which they agreed to compensate players who have become victims of degenerative brain illnesses which are believed to have been caused by head injuries sustained while playing the sport. This came after years of pressure from unions and former players arguing that the concussions they regularly suffered during their career are the direct reason long-term deteriorative conditions like dementia have become so prevalent among them and their old teammates.

This legal success achieved by players in America could be seen as a glimpse into the potential for a new field of litigation in the UK concerning similar sporting injuries.

Physical sports such as rugby have long been familiar with the notion that repetitive concussions sustained during participation can carry grave long-term consequences. However, in football (or soccer, as the Americans would call our version), discussion of these injuries and their resultant effects is often stubbornly disregarded which leads to an inexplicable lack of awareness regarding the issue.   

Although nowhere near as physical as rugby, football still carries a significant likelihood that its players will sustain concussions during matches. The severity of the danger this poses is laid bare in studies which have consistently observed that someone who suffers repeated brain injuries in their twenties increases their chances of developing dementia by 60%. Such a significant risk of harm ultimately gives rise to the possibility of legal action against those who have a responsibility to prevent its consequences.

FIFA, football’s governing body, owe their players a duty of care and should protect them from the risk of long-term brain injuries especially when there is a considerable possibility concussions will arise. Despite this, they appear to be pandering to their deeply engrained ignorance and only provide feebly simple guidelines to aid teams deal with what is a serious issue. It is important to note that a prolonged recovery time after concussive incidents is vital in preventing the long term associated damage.  However, the guides FIFA issue give only slight recommendations as to how long players should be side-lined, these are unenforceable and by no means binding. This is expectedly ineffective as it is all too ordinary to see teams defy the ‘advice’ given in the situations which matter.

Perhaps the most recent instance where FIFA’s inadequate guidelines have been wilfully ignored by football teams was the concussion of Moroccan player Nordin Amrabat during the last World Cup. The injury arose when a collision with an opposing player left him lying unconscious and unable to continue. The FIFA guidelines recommend that players who suffer a concussion during matches should not play for a minimum of 6 days after the incident. However, Amrabat returned to participate in Morocco’s next game despite sustaining the injury only 4 days earlier.

Such events reaffirm concerns that FIFA is not serious enough about concussive incidents and, despite knowing the long-term risks, they have failed to take authoritative steps to help protect those under their jurisdiction. If players like Amrabat were to suffer from dementia in their formative years, it is clear that the imposition of stricter rules would have significantly contributed in preventing it.

It is suggestable that this lack of decisive action on the part of FIFA may leave football clubs themselves liable for damage players come to suffer as a result. Ultimately, football clubs are employers and are therefore governed by normal employment law and regulations. Under the Health and Safety at Work Act 1974, employers are obliged to ensure that their employees are not exposed to unsafe systems of work. The Act also requires employers prove that they took reasonable steps to mitigate the risk of any potentially unsafe tasks. In applying this to FIFA and football clubs, it is clear that the simple guidelines in relation to concussions do not reconcile with the law. FIFA and its clubs must protect players from danger, but it is concerningly evident that the current measures struggle to offer reliable safeguards and consequently fail in preventing the concussive risks footballers so often face.

Although no legal action has yet been taken against football clubs against the long-term consequences of traumatic head injuries, it is foreseeable that this issue has credible prospects to become a growing area of worker’s rights litigation.

As seen in the USA, the exposure of a sport’s shortcomings can form the basis of the argument in helping unfairly injured players realise justice.

Those supposedly taking charge of the game have been idle on the ball for too long and if nothing is done to address this endemic issue then they have no excuse when that decisive tackle finally comes in.  

Blog by Euan Robertson, 3rd year at Strathclyde.

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