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The association between brain injuries and contact sports is now irrefutable. A recent study by the Institute of Biomedical Engineering found that far from being solely concussions which cause brain damage, repeated blows to head can cause lasting trauma in the absence of concussion[1]. That is to say, concussions need not occur for there to be lasting damage to the brain where repeated blows are sustained.

The last year has seen a group of nine former rugby union players diagnosed with long-term brain injuries join a lawsuit against World Rugby, the Rugby Football Union and Welsh Rugby Union. The emotive and compelling interview given by former England Rugby hooker Steve Thompson, who spoke candidly of being unable to remember winning the World Cup in 2003, brought the issue to the front of the public arena[2]. The lawsuit made by former rugby players comes hot on the heels of rising numbers of dementia cases in former footballers, believed to be linked to repeatedly heading the football.

The lawsuit on behalf of the former rugby union players alleges that given the significant risk of serious or permanent brain damage caused by concussions, World Rugby, RFU and WRU “owed them, as individual professional players, a duty to take reasonable care for their safety by establishing and implementing rules in respect of the assessment, diagnosis and treatment of actual or suspected concussive and sub-concussive injuries”.

In order to be successful, the players must prove that they suffered a brain injury due to World Rugby/ RFU and WRU having failed to take reasonable steps to protect them from the known risk of brain injury. This will require consideration of the best available information at the time of the former player’s careers. Whether this information was sought by the defendants and disseminated into the game to create safeguards and preventive steps will be key. It is easy to look back in retrospect, when science and medicine have advanced, and say that the infrastructure in place was insufficient. What will be crucial is whether this information was available, or ought to have been obtained, but was not implemented by the defendants.

The Future Viability of Sport

Now the UK Sports Minister Nigel Huddleston has recently stated that sports should be concerned. He continued, “Could huge litigation undermine the financial viability of sports? Of course, absolutely. The issue then is could they mitigate potential harms and concussion through changing the nature of the guidance of how those sports are conducted? I think in some cases, yes.”

Whilst litigation exposes the sport’s governing bodies to pay damages to the litigants, these are by no means small enterprises. They have the financial backing in the form of TV and sponsorship deals as well as tournament revenue and existing current and non-current assets. The long term financial viability of these governing bodies is not a danger that is foreseeable. Any similar litigation in football would likely follow the model in the rugby lawsuit by pursuing the sport’s governing bodies, such as the FA / SFA.

Perhaps alluding to rugby, Mr Huddleston stated that the introduction of safety measures had the potential to “undermine the sport’s attractiveness and make it effectively quite a boring game and therefore not attractive anymore.”

Any changes are likely to be around avoiding head collisions rather than the fundamentals of the game of rugby. The tackle has been rightly identified by players and medical experts as posing the greatest risk of head trauma. Rule changes have sought to focus tackling to the lower part of the body and to avoid tackles to the head completely. The changes included lowering the acceptable height of a tackle on the opponent’s body as well as increasing the on field sanctions for illegal tackles.

Whilst these changes are encouraging the remaining difficulty is in the assessment of what constitutes a head injury. Before the accepted understanding of a concussion was the loss of consciousness. It is now understood to be a wider remit with only 10% of concussions involving loss of consciousness. Signs include but are not limited to: dizziness, nausea, memory loss, personality changes, blurred or distorted vision, depression, mood changes and tiredness. A link to an assessment tool can be found here. If a concussion is not identified immediately and a player goes on to have another trauma to the head, they can suffer from second impact syndrome[3] or chronic traumatic encephalopathy[4]. The focus should be on implementing a robust, effective and reliable concussion assessment protocol which will ensure the safety of the player. This does not pose a threat to the fundamentals of how the game of rugby is played and the long term viability will not be impacted.

The future of Football?

The link between head trauma in football and dementia is not as clear-cut. Trauma is alleged to occur when heading the football. There has been a lot of media coverage in this area such as the BBC documentary: Alan Shearer: Dementia, football and me. Studies have found that there is a link between head trauma associated with football and dementia[5]. The study found that former footballers have a 3.5 times higher rate of death due to neurodegenerative disease. Dr Willie Stewart, the consultant neuropathologist who led the study, stated “Our data shows that while former footballers had higher dementia rates, they had lower rates of death due to other major diseases. As such, whilst every effort must be made to identify the factors contributing to the increased risk of neurodegenerative disease to allow this risk to be reduced, there are also wider potential health benefits of playing football to be considered.”

Football is a multi-billion business which must do more to invest in safeguards to protect players over the long-term and not just during their playing career before discarding them onto the used pile. Football can afford to do more to pioneer research into areas such as eye scanner technology which aims to diagnose concussions instantaneously. It is clear that football can and must do more.

Blog by Conor Kenny, Solicitor






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