Concussion in sport - How employers’ duties compare in the U.K., Ireland & North America

Published 17 July 2017 | Authored by: Jack Anderson, Jon Heshka

This article examines how player concussions are currently being dealt with by sports and the status of concussion-related litigation. The first half, by Prof. Jack Anderson, looks at the situation in the U.K and Ireland, focusing principally on football and Rugby Union. The second half (by Associate Dean Jon Hehska) gives a comparative perspective from the U.S. and Canada, looking at situation in the National Football League, the Canadian Football League, the National Hockey League and the NCAA. The authors conclude by offering their thoughts on whether we may soon see the “U.S. style” litigation of class action lawsuits closer to home. 

Specifically, this article examines:

  • An introduction to concussion issues in 2016/17

  • Rugby Union and concussion
    • The Cillian Willis case
    • The Jamie Cudmore case

  • Summary of key developments in U.K. and Ireland

  • Concussion litigation in the United States and Canada
    • National Football League
    • Canadian Football League
    • National Hockey League
    • National Collegiate Athletic Association

  • Conclusions: will we see U.S.-style concussion litigation in the U.K.?

 

Introduction

On 31 May 2016, the Daily Telegraph in London launched a campaign to tackle what it called “football’s secret shame – dementia”. The campaign called for the Football Association in England to commission independent research to answer the question, “Does playing football increase your risk of dementia and other degenerative brain diseases?” and “to work collaboratively to help researchers study a large sample of former professional players and compare their findings to the wider population.”[1]

2016 was the 50th anniversary of England’s World Cup victory and the experiences of the eight surviving outfield players from that England team seemed to act as a catalyst for the campaign, as supported even by rival newspapersRay Wilson, Martin Peters and Nobby Stiles were diagnosed with Alzheimer’s in their sixties while Jack Charlton appears to struggling with memory loss in the last decade or so.

The campaign is of interest for three reasons – its retrospective element; its contemporary interest; and how it encapsulates many of the medical, regulatory and legal issues relating to concussion in contact sport, otherwise discussed principally in terms of rugby union and American football. On the first point, it is noteworthy that fifteen years ago the family of Jeff Astle (as have the family members of the 1966 winning team) were promised that The FA would divert funding into research as to “whether or not the act of repeatedly heading a water soaked leather ball in the 1960s and 1970s might have caused neurological failure.”[2] Astle played professional football for West Bromwich Albion from 1964-1974.  He died, aged 59, in 2002. At a subsequently coronial inquest, the coroner, said that repeated contact with the heavy leather ball used in the 1960s caused trauma similar to that of a boxer and labelled the matter an “industrial disease.[3]

At one level, the impact of the Astle coronial pronouncement could be deemed limited in the sense that the primary causal factor – the old, heavily stitched leather footballs – have long been replaced by lighter footballs;[4] nevertheless very recent medical research published in the journal of the American Academy of Neurology – involving a relatively large control group of 222 adult amateur players, suggests that repeated heading of a football is a cause of concussion.[5] This medical underpinning of a causal connection between an elemental part of a sporting activity (such as heading in football) and measurable, chronic brain trauma (as suffered by Jeff Astle) remains the key concern and, concomitantly, the key area of vulnerability in terms of legal liability, for all sports bodies involved in contact sports and not just The FA.

It follows that in discharging its duty of care to ensure that the game of football is played safely, The FA ought, in the author’s view, to make good their promises on underwriting further medical research and including: better injury surveillance; preventative measures to make the game safer;[6] on-field head injury assessment protocols; rehabilitation and recovery protocols; and, most importantly, so that the future players of the games (and their parents) can make an informed decision as to the sport of choice.[7]  

Obfuscation on any of the above might lead to potential legal liability, as has been shown in the case of various American sports, discussed below, and as will now be examined by way of a review of rugby union’s experience on this matter in 2016.[8]  

 

Rugby Union and concussion: A game changer

In the first week of 2017, World Rugby, the global governing body for the sport of rugby union, announced two new directives on dangerous tackling offences, sanctioning reckless and accidental head contact. The initiative was, according to World Rugby, as a result of what it calls an evidence based approach to player welfare.[9]

As part of this evidence based approach, World Rugby continuously commissions injury surveillance studies to be carried out at all of its international competitions so that the results can inform its player welfare initiatives, including rule changes. The most recently published surveillance study was at the 2015 World Cup.[10] Concussion (at 13.9%) was the most common match injury. Tackling (21.2%) or being tackled (24.7%) were the most common sources of match injury. These results, which were consistent with previous surveys, and including those carried out by national rugby federations,[11] duly fed into World Rugby’s zero tolerance approach to head contact.  

Nevertheless, the above presents an overly neat narrative of the background to the introduction of the new head contact rules and there is no doubt that an apprehension about player-led litigation was also a factor. Indeed, two examples occurred in 2016 when professional rugby players, Cillian Willis[12] and Jamie Cudmore,[13] announced that there were suing their former clubs for alleged clinical negligence claiming that their employers negligently exposed them to further injury by permitting them to play on post-concussion.

Cillian Willis

In August 2016, various newspapers reported on what they called “the first case of a professional rugby player taking his employers to court due to concussion” when Cillian Willis was reported to have initiated civil proceedings for clinical negligence against Sale Sharks of the English Premiership.[14] The essence of the proceedings appears to be Willis’ allegation that the club and two doctors negligently assessed two head injuries he sustained while playing against Saracens in an LV cup game on 10 March 2013. During that game, Willis, on receiving what appears to have been high tackle in the first half, was treated on the pitch by club doctors. They deemed him fit to play on. He claims that he was concussed. In any event, early in the second half, Willis received another knock to the head. He was again treated and again permitted to play on but was eventually replaced after 47 minutes of the game.

Four factors are of interest in the Willis proceedings.

  • The first factor is the loss suffered by the player: a crucial underlying fact of the claim is that Willis never played rugby again and retired shortly after the above incident aged 28.[15]
  • The second factor is that Willis alleges that the primary causal reason for his retirement was concussion, of which he had a history.[16]
  • The third factor is that Willis appears to be arguing that he was twice permitted to play on – it remains unknown as to whether he was treated at the half-time break - in circumstances that lead him to allege that World Rugby and Aviva Premiership concussion guidelines, as of March 2013, were not adhered to.
  • The fourth factor is that the claim is described principally as one of clinical negligence though the exact nature of the employment relationship between the doctors and Sale (and hence the issue of vicariously liability), remains unclear.[17]

Jamie Cudmore

Jamie Cudmore played for his then employer, Clermont Auvergne, in the semi-final of the 2015 (European rugby) Champions Cup semi-final against Saracens. During the game, he clashed heads accidentally with an opponent, Billy Vunipola.  Cudmore was removed from the field and underwent the mandatory “head injury assessment” or HIA (World Rugby’s concussion) protocol.[18]

Cudmore claims that he failed the HIA and thus should not have been permitted to return to the field of play.[19] He further claims that just as he was about to get changed out of his playing gear, he was asked, principally because his second row partner had been injured, to return to the field of play, which he did.  As reported in the media, Cudmore, who has since announced his intention to sue Clermont for negligence, is of the view that:

Clermont’s doctors should have known better. But, apparently caught up in the moment and with lines blurred between patient, player, employer and team, allowed him to return before permitting him to play in the final at Twickenham two weeks later….[20]

Again, there are four points of interest to be drawn from the Cudmore incident.

  • The first is that, in contrast to Willis, Cudmore continues to play professional rugby but the loss suffered relates similarly to the “second impact” dangers he was exposed to by his employers in permitting him to play on while concussed. Indeed, recent research suggests that rugby players who returned to play in the same season (and not the same game) after a diagnosed concussion had a 60% greater risk of time-loss injury than players without concussion.[21] The dangers of playing on while concussed during a game can be seen even more starkly in the tragic fatality in 2011 of Ulster schoolboy Benjamin Robinson. In 2016, his parents issuing civil proceedings against World Rugby not only for negligence regarding concussive-type injuries but also for breach of the governing body’s primary duty of care regarding the safety of the game. The scope of the potential threat of litigation to rugby can be seen in the fact that the co-defendants in the Robinson case include the Irish Rugby Football Union, the Ulster Branch, the referee on the day of the fatality, the player’s coach and his school.[22]
  • The second point of interest from the Cudmore proceedings is his visceral description of the acute impact that his concussive injuries had – and remember, he went on the play in the Champions Cup final at Twickenham two weeks after the semi-final and received another head knock.

Cudmore finished the game [the Champions Cup Final] but after blacking out in training the following week he was mercifully, belatedly, stood down. It took him three months to recover — the first few weeks spent largely in a darkened room as he battled post-concussion symptoms including mood swings, sensitivity to light, lethargy and nausea.[23]

Again, this poses questions for professional rugby as to employees’ health and safety and the nature of the work place in which such players operate, as well as the nature of their rehabilitation and recovery process and the chronic or cumulative impact of such injuries.[24]

  • The third point of interest is that much of the concussion debate on rugby currently focuses on a lack of trust in the efficacy of current HIA protocols.  But what the Cudmore experience portrays is a lack of trust emanating from players as to the full extent of some clubs’ or even some rugby authorities’ interest in their long term welfare.[25] In this, and as Cudmore builds a legal case against Clermont, he has alleged that his legal team have been hindered by the fact that

no video footage exists from within the Twickenham changing room while a formal complaint made to European Professional Club Rugby, the organisers of the Champions Cup, drew a response from director general Vincent Gaillard pointing out the HIA was a World Rugby trial and therefore not under his body’s jurisdiction.[26]

  • The fourth point of interest from Cudmore is that, in common with the Willis proceedings, at its core is a claim of non-compliance with existing concussion or HIA protocols, including an element of clinical negligence against the club’s medical personnel. The first issue returned to the media spotlight when in the 11th minute of the first half of game between Leicester Tigers and Northampton Saints on 3 December 2016 when the Saints’ winger George North, who has a history of concussion[27], appeared to be concussed but was permitted to play on[28]. A subsequent report by the RFU’s concussion management review group determined, on the balance of probabilities, that there were grounds to conclude that North had sustained a period of loss of consciousness and therefore, under the Head Injury Assessment criteria, should not have returned to the field of play.[29]

No sanctions were applied against Northampton though the review group did make a number of suggestions relating to medical personnel’s duty to review video footage of concussive incidents, and noting that “irrespective of whether part of the HIA assessment has or has not been carried out on the pitch, the entire HIA must be completed again once in the medical room by the examining doctor” and that no HIA should “be unduly shortened without clear reason.”[30]

In the aftermath of this report, and in the context of possible clinical negligence, the demands on club medical doctors are now quite onerous as exacerbated by the fact that, as some critics have highlighted, the key issue in not so much compliance by rugby doctors with the extant HIA protocol but whether such protocols are fit for purpose in the first place.[31] Put simply, how does a club doctor align the Bolam (case law[32]) derived notion of acting in accordance with a respectable body of medical opinion, with a situation whereby it is admitted that “advances in the practical, immediate management of concussion have been constrained by a lack of progress in the development of an accepted operational definition of concussion that can be used to identify concussed athletes during match play.”[33]

To be fair, World Rugby has fully acknowledged the need for an operational definition of concussion,[34] though its definition does not as of yet seem to have received the imprimatur of international experts in the area.[35]

 

Summary

Litigation such as the Willis and Cudmore not only places a spotlight on medical negligence in the context of World Rugby’s concussion protocols but also other, preventative means of mitigating playing risks in the sport and reducing insurance costs.  The most obvious of these is the directives on high tackles[36] implemented at the beginning of 2017.[37] In this, both codes of rugby have a history of player-led litigation leading to regulatory change.  

In the 1990s, rugby faced a number of claims,[38]  principally in Australia, relating to the safety of its then scrum laws. The litigation, taken by players rendered paraplegic in collapsed scrums, claimed that the rugby authorities had failed in their duty of care to update and ensure the consistency of scrum safety laws. Echoes of that litigation can still be heard in the “Crouch-Bind-Set” commands of today’s rugby union referees and in rule changes relating to uncontested scrums when no suitably trained replaced front row is available.[39] Similarly, in a 2005 case from Australian rugby league, a player, Jarrod McCracken, successfully sued two opponents and their club for neck injuries resulting from a spear or tip tackle.[40] Spear tackles were subsequently outlawed[41] by World Rugby, as seen most famously in the red card awarded by Alain Rolland to Wales’s Sam Warburton in the semi-final of the 2011 World Cup in New Zealand.[42]

More recently still, World Rugby will also have been aware of the litigation begun this year, again against the rugby league authorities in Australian (NRL), by a player, Alex McKinnon,[43] paralysed in a so-called “lifting” tackle in a 2014 game.[44] As McKinnon’s medical care costs rise, compensation is being sought in the courts and as part of the proceedings scrutiny has fallen upon the NRL’s allegedly negligent regulation of such tackles. The McKinnon case has interesting legal, insurance and medical repercussions for both rugby codes and is one to be watched into 2017, as are continuing developments in North America.[45]

 

Concussion litigation in the United States and Canada

Things are no less – and are arguably more – injurious and litigious on the other side of the pond. The landscape in sports generally and in American football and ice hockey specifically has forever been changed by the heightened awareness of brain injuries and its concomitant seemingly tidal wave of litigation.

National Football League

The table was essentially set in 2016 by the National Football League (NFL) when it settled its class action lawsuit[46]. After a contentious and complicated battle between the league and more than 20,000 retired players, which wound its way through the courts culminating in the US Court of Appeals rejecting an appeal by the players and the US Supreme Court denying a request to review the settlement,[47] a settlement approximating $1 billion was approved by Judge Anita B. Brody of the US District Court.[48]

Canadian Football League

The Canadian Football League (CFL) – Canada’s version of the NFL – has also been ensnarled in concussion litigation. On 11 March 2016, the Honourable Chief Justice Hinkson of the Supreme Court of British Columbia in Bruce v. Cohon,[49] found in favour of the CFL and that the claims relating to Bruce’s concussions could only be resolved through the grievance and arbitration process contained within the league’s collective bargaining agreement. A separate $200 million suit filed with the Ontario Superior Court in 2015 has not yet been heard.[50]

Jeffrey Orridge, the Commissioner of the CFL, took a different tack in 2016 in denying the linkage between football and chronic traumatic encephalopathy (CTE). He said the following at his annual state-of-the-league address:

Last I heard, it’s still a subject of debate in the medical and scientific community. The league’s position is there’s no conclusive evidence at this point.[51]

This unusual declaration put him and the league at odds with the NFL with its nearly $1 billion class action settlement and whose top health and safety officer acknowledged the link between football-related head trauma and CTE in a game-changing admission before a congressional committee. Jeff Miller, the NFL's senior vice president for health and safety, was asked if the link between football and neurodegenerative diseases such as CTE has been established, to which Miller responded: "The answer to that question is certainly yes."[52]

National Hockey League

The approach of the National Hockey League (NHL) in the face of concussion litigation is more like that of the CFL and less the NFL.

In May 2016, US federal court Judge Susan Richard Nelson denied the NHL’s motion to dismiss the First Amended Complaint based on labour law preemption.[53] Judge Nelson also unsealed e-mails and other documentation relating to its own pending class action lawsuit. In response to an article the author wrote in 2011,[54] the owner of the NHL team Montreal Canadiens e-mailed Gary Bettman, the Commissioner of the NHL, expressing concern about the league’s and team’s exposure to liability. Commissioner Bettman responded saying that he does “not believe the nfl [sic] lawsuits should ‘put us at risk.’”[55]

Two years later in 2013, the first of five proposed concussion injury class action cases was filed against the NHL, the case information stating:

The plaintiffs generally allege that the NHL failed to warn its players of the short and long-term effects of repeated concussions and head trauma, failed to adequately care for its players after they received such injuries, and promoted and glorified unreasonable and unnecessary violence leading to head trauma.  Plaintiffs allege these actions and inactions by the NHL resulted in players suffering from, or increased the risk of contracting, serious brain diseases such as Alzheimer’s, dementia, and Parkinson’s, and accelerated the speed and severity of players’ post-retirement mental decline.[56]

The cases were consolidated a year later and transferred to the District of Minnesota.

The NHL has shown no inclination to settle and is instead fighting the case both in the courts and in the legislature. In a letter to Connecticut senator Richard Blumenthal, NHL Commissioner Gary Bettman wrote:

"The confusion in the press about CTE — no doubt further fuelled by plaintiffs' counsel in the NHL litigation — relates to the simple and incontrovertible fact that none of the brain studies conducted to date can, as a matter of accepted scientific methodology, prove anything about causation, a primary subject of your letter."[57]

The NHL has filed Bettman's 24-page letter to Senator Blumenthal with Judge Nelson.

The latest approach of the NHL has seemingly torn a page from the playbook of Big Tobacco by not only denying the link between hockey and CTE but by attempting to discredit those medical researchers who make such claims. The NHL sent a far-reaching subpoena to Boston University in September 2015 asking the university, whose CTE Centre has examined the brains of more than 200 athletes, to disclose any relevant documents related to the issue at hand. Boston University refused the NHL’s request. [58] The NHL turned up the heat in January 2017 by filing documents in court asking Boston University to hand over research materials and unpublished data so it can “probe the scientific basis for published conclusions” and “confirm the accuracy of published findings.”

It is fair to say at this point that the gulf between the claimants and the NHL is vast and that a settlement is not immediately in the offing.

National Collegiate Athletic Association

The waves of concussion litigation are also lapping at the shores of the National Collegiate Athletic Association (NCAA), the non-profit association that regulates athletes of about 1,300 institutions, conferences and organizations and generates nearly $1 billion in revenue.[59]

A $75 million settlement was agreed to by the NCAA in July 2016 that establishes a 50 year medical monitoring program for all current and former NCAA athletes, a class which totals several million people.[60] This however has not served to stop the tsunami of concussion lawsuits as the NCAA was facing an additional 43 lawsuits as of October 2016.[61] 

 

Conclusion

In the immediate future, a US-style, NFL class action is unlikely to be replicated against World Rugby. In fact, given the recent filing of a federal court memorandum of law in support of a $112.5 million bill for their work on the NFL concussion settlement, it could be argued that the NFL settlement reflects tort reformists criticism of such actions as both benefitting lawyers at the expense of claimants and a means of forcing defendants into settlements.

In the UK, where such collective redress actions are more properly and restrictively described as Group Litigation Orders, it is usual that such orders proceed as based on representative test cases selected from the group of legal claims raising the similar issue.[62] In this, the Willis and Cudmore proceedings outlined above might, however, informally but no less effectively be viewed as selected test cases for rugby’s future, and possibly much wider, legal vulnerability to concussion-related, negligence claims.

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About the Author

Jack Anderson

Jack Anderson

Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. He has published widely in the area of sports law including The Legality of Boxing (2007),Textbook on Sports Law (2010), Leading Cases in Sports Law (2013) and EU Sports Law (2017). He is a Chartered Arbitrator and, having previously been an arbitrator with the GAA, FAI and Just Sport Ireland, he is currently a mediator/arbitrator for Sports Resolutions UK and the Court of Arbitration for Sport.

He supports Doon, Limerick, Munster, Ireland and Watford FC and, yes, he looks like Paul Scholes.

@sportslawMELB 

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Jon Heshka

Jon Heshka

Jon Heshka served as Associate Dean of Law from 2013 to 2017. Since arriving at TRU in 2002, Jon played an active role in university governance having served as, amongst other positions, vice-chair of Senate and chair of the Educational Planning Committee of Senate.

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