How the perceived risk of litigation affects the rules of rugby
As anyone looking at the wreckage of the western world’s economy has by now realised, humans aren’t very good at assessing risks. What we perceive as being a threat, and what’s really dangerous, frequently don’t coincide at all.
It is this clash between perceived risk and actual risk that causes problems in terms of liability and in terms of managing risks in sport. This article will look at one particular case, the scrum in rugby union1, will look at how a perceived risk of litigation, once settled, can be near-intractable, and will try to suggest remedies.
That rugby can sometimes be dangerous, and will very often hurt, is something accepted by anyone playing the game, and by the Courts. Scrummaging, for example, has innate risks implicit when one 900kg group of 8 tries to push the other backwards. Surprisingly, the risks have shifted so that roughly half of all catastrophic injuries now happen in the tackle, instead of the scrum2.
That scrum injuries are more likely to go terribly wrong instead of just wrong means the scrum that has been most targeted by the lawmakers in the game. Well and good; anything that makes for safer scrums while not affecting scrummaging is to be welcomed 3. To that end, there are rules for underage players who are still learning the skills of scrummaging, aimed at protecting them while they learn and before they go on to playing the game properly. These Under-19 Laws restrict the amount a scrum can turn, or the distance it can be pushed, making pushover tries impossible. In effect, a full scrummaging contest is sacrificed for safety for the inexperience4.
Yet the perception of risk of litigation has led to the introduction of the underage scrummaging rules for adult players in Ireland. Given just how much this affects the game for forwards – 8 of the 15 players in a team - it has, effectively, drastically altered the playing of the game for a majority of adult rugby players in Ireland. When full scrummaging dominance is no longer a game winner, there’s no reason to seek to win the game through the scrum, or even pick a player who can give you that dominance. Scrummagers go the way of the battleship; formerly unquestioned, now obsolete.
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Tim O'Connor BL is a practising barrister at the Irish Bar with a special interest in rugby and the law. He has published, spoken and blogged on concussion, liability, player eligibility issues and disciplinary challenges in rugby, as well as appearing for clients in rugby-related cases.