Concussion, sport and the law

Published 07 May 2013 By: Jack Anderson

Ireland Rugby

Haven’t done anything for a while here but was watching the highlights of a hurling match a few weeks ago when a fairly sickening challenge occurred which led to a player being concussed.

That tackle prompted this blog.

Please note that a version of this blog was published as “Cost of concussion can no longer be taken lightly” The Sunday Independent, Dublin, 28 April 2012. The blog can also be read in conjunction with an excellent article by Tom English “Rugby concussion rule causes alarm” Scotland on Sunday, 31 March 2012.

During last Sunday’s Allianz National Hurling League Division 1 semi-final, Galway’s Fergal Moore was concussed as a result of a violent collision with an opponent. The coming together was fierce but fair. Thanks to his helmet and prompt medical attention, including a spinal board stretcher, Moore will make a speedy recovery.

A concussed player having to be assisted from the field of play – such as the unfortunate Ulster and Ireland rugby centre Luke Marshall, who was concussed recently in successive Six Nations matches against France and Italy and again in Ulster’s quarter final exit from the Heineken Cup – is one of the most worrying sights in any contact sport.

It is also one that might have serious legal implications.

Unlike Moore and Marshall, a Colorado High School student, Rhett Ridolfi, was not so lucky when, in 2008, he suffered severe and chronic brain injury during American football practice. Ridolfi was injured early on in a coaching session and despite complaining of severe dizziness, Ridolfi’s coaches and other school staff asked him to continue with tackle drills.

Ridolfi’s mother, acting on behalf of her paralysed son, subsequently sued the coaches and staff for negligence. The family also sued Riddell, one of America’s leading helmet manufacturers, on product liability grounds and mainly for certain design defects in the helmet but also for inadequate warnings on the dangers of concussion even when playing with a helmet.

This month, a Colorado jury found the school staff liable. The jury also held that, although there were no design defects in the product, the helmet manufacturers had not adequately warned users of its equipment on the continuing risk of concussion.

$11.5million was awarded in damages – the high figure due to the fact that Ridolfi needs constant medical care. Riddell must pay about a one-quarter share of the damages. The bulk of the compensation balance must be met by the school staff, though as government employees, they will not be personally liable.

The case has attracted significant attention in the US and mainly because the country’s biggest professional sport, the NFL, is facing a lawsuit from more than 4,000 retired players and spouses who are claiming that the NFL knew for decades about the chronic health risks associated with cumulative concussions in the sport but failed to warn its players or take preventative steps.

Riddell has also been named as a defendant in the law suit which is expected to be heard as a class action in a federal court in Pennsylvania in the summer.

Testimony from retired NFL players has revealed stories of chronic headaches, Alzheimer-like forgetfulness, altered personalities and sometimes a downward spiral into depression, violence and suicide. The most shocking incident, said at the time to be linked to cumulative concussive injuries, occurred in December 2012 when Kansas City Chiefs’ linebacker, Jovan Belcher, shot his girlfriend, then drove to his home stadium and subsequently committed suicide in front of his coach and general manager.

Research is focussing on whether repeated brain trauma of the kind suffered by football players is leaving them with a condition called chronic traumatic encephalopathy (CTE). In 2012, a study published in the journal of the American Academy of Neurology included nearly 3,500 former NFL players. The researchers determined that professional football players were three times more likely to die as a result of certain neurodegenerative diseases than the general population.

Concerns about concussion are not confined to the NFL. Closer to home, when rugby player John Fogarty announced his retirement from Leinster in November 2010, he gave an extraordinary interview to a national newspaper recounting his experience of a career throughout which he suffered what he called “repeated bangs”. Concussion, he said, equated to an occupational hazard for the modern rugby player.

His assertions were supported with the publication of the autobiography of fellow Leinster player Bernard Jackman. The book revealed the largely self-inflicted pressures on professionals to play while injured or even soon after a concussion.

Jackman’s view appeared validated by a 2010 survey of the then 150-strong Irish Rugby Union Players Association. Just over 40% of those surveyed admitted to having been pressurised to play while injured.

The revelations in Ireland were reinforced by All Blacks Conrad Smith and Richie McCaw, who, again in 2010, admitted to “playing concussed” at least one or twice a season.

So what is the reaction of leading sports governing bodies to the recorded medical risks and accompanying legal vulnerabilities arising from concussion?

Two points are noteworthy.

First, the NFL, as with rugby league in Australia, which has also faced concerns about a recent rise in incidents of concussion, is considering implementing rule changes such as the banning of helmet or shoulder-leading charges.

Second, many American sports, as with rugby union, have pointed to the implementation of sophisticated player concussion protocols and including versions of the “brain bin” where a player, suspected of such an injury, is retired for 10 minutes from a game for independent medical assessment.

If that player is proven to have been concussed then a mandatory rest period, typically three weeks, follows. The selection of Luke Marshall by Ulster and Ireland, for instance, adhered to IRB concussion protocols.

And yet justifiable concerns remain.

At the professional level, the pressure on a contracted player not to lose their place through injury, especially during an important phase in the season, must be intense. Equally, coaching staff are under intense, short term pressure to win. Cumulatively, these stresses might be brought to bear on a team’s medical staff, who as a match swirls around them, are faced with a player pleading to play on and a coach screaming down a radio mic for an update.

The rugby analogy which shows the danger is the infamous Bloodgate incident involving Harlequins where, in effect, a player, as well as a doctor and a physio, were bullied by a demanding coach into feigning an injury for tactical reasons.

Admittedly, the above is rare and independent assessment of players, which is central to most concussion protocols, avoids such conflicts of interest.

More worrying is the problem at amateur level in contact sport. The problem there is not the improper reporting of concussion but no reporting at all. In 2010, a research paper presented at a Royal College of Surgeons/Physicians of Ireland conference, noted that in a survey of 133 under-20 year old Irish club rugby players, nearly half reported sustaining at least one concussion during a playing season but that 44 per cent of them had not sought subsequent medical assessment and about one-quarter of those surveyed admitted that they had continued to play while knowing that they were concussed.

This underreporting needs to be addressed.

Finally, personal injuries cases such as the Ridolfi case should not be dismissed as yet more evidence of the overly litigious nature of American society. The Ridolfi family are in a tiny minority who have succeeded in obtaining damages. The courts in the US have found that both equipment and coaching standards in American football are generally reasonable. As long as these standards remain fit for purpose, then not every accident leading to injury on the football field should give rise to compensation.

And yet, accidents can also be prevented.

Better a properly fitted helmet than a CT scan; and better mandatory rest policies for concussed players than writs for compensation to pay for a lifetime of medical bills.


Sources

Ken Belson, “Judge Rules Against Football Helmet Manufacturer”, The New York Times, 14 April 2013.

Ken Belson, “NFL Doctor Says Disease is OverstatedThe New York Times, 27 March 2013.

John Fogarty, “It affects every facet of your life. It takes from you. I’m a different person when this is bad”, The Sunday Independent, Dublin, 17 November 2010.

E Lehman et al, Neurodegenerative causes of death among retired National Football League players” 79(19) Neurology 1970–1974, 6 Nov 2012.

Gerry Thornley, IRUPA Survey: Drop in Standard of Care Striking” The Irish Times, 8 Jan 2011.

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Author

Jack Anderson

Jack Anderson

Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.

Jack has published widely in the area including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018 with R Parrish and B Garcia). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016. 

Jack is a former member of CAS (2016-2018).  He became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017.  In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for Australia

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