Recently, the world of professional rugby was rocked by lawsuits filed by former players.
The players are claiming damages against the governing bodies for causing them to incur debilitating mental conditions. These include early-onset dementia and other traumatic head injuries.
The main basis of the claims is that the organizations failed to take adequate steps to protect the players from getting concussions which lead to permanent brain injuries.
This article explains the ins and out of the lawsuits in plain English.
What Kind Of Brain Injuries Are Involved?
It’s important to understand that there are different levels of trauma that comes from impact to the head.
There is severe near-fatal impact such as in a car crash.
There is generally thought to be a strong link between moderate to severe brain trauma and the later development of brain impediments.
But what about head-on-head collisions in rugby, usually caused by mistakes when tackling? These can be described as milder trauma.
Any link between mild brain trauma and later mental problems is much more tenuous. It’s fair to say that the medical community has not established a strong connection.
What does CTE mean?
The term CTE stands for Chronic Traumatic Encephalopathy. In this article, we’ll usually refer to “brain injury” to be simpler.
CTE was first described in the mid-1920s in boxers. Back then, doctors and journalists might say that a boxer was “punch-drunk”.
It began to be linked to other sports around the turn of the millennium. We have a separate article on the NFL lawsuits that arose from autopsies on football players from about 2005.
At this time, CTE cannot generally be diagnosed during the sufferer’s lifetime. It can only be established through an autopsy.
What does EOD mean?
The term EOD stands for Early Onset Dementia. This simply means dementia that starts before the sufferer is 65 years old.
It’s thought that CTE can cause EOD.
Why Are The Rugby Players Claiming Compensation?
The lawsuits are against three governing bodies in Rugby Union:
- World Rugby (the overall governing body)
- RFU (England’s Rugby Football Union)
- WRU (Welsh Rugby Union)
The players are claiming that the governing bodies were aware of the risk to the players.
They claim that as appropriate safeguards were not put in place, they suffered concussions that later led to permanent brain injury after retirement.
They are saying that the organizations had the knowledge, the duty, and the ability to protect them from these injuries and failed to do so.
What Must The Players Prove And Can They Succeed?
There are two problematic points that the players must prove to succeed:
- the organizations knew the risks and failed to take proper steps to protect the players
- this failure resulted in injuries that caused the players’ current brain traumas e.g. early-onset dementia
Let’s look at the challenges the players face.
Did The Ruby Unions Know That Concussions Might Cause Dementia?
In order to prove knowledge, the players must show that the organizations knew or should have known that concussions in rugby presented a risk of long-term brain injury (CTE) or early dementia (EOD).
To do this, they have to look at what was known about CTE and EOD at the time the players were playing.
We’ve already mentioned that there has been a strong link between moderate to severe brain injury and being “punch drunk” since the early 20th century through medical studies on boxers.
Medical research into ball sports is fairly recent
However, the medical literature shows almost no connection being made with other sports until the beginning of the 21st Century.
Our article on concussion lawsuits in the NFL mentions the research by Dr. Bennet Omalu in 2005. This was turned into a movie starring Will Smith.
Most rugby concussions are considered mild trauma
The current medical consensus seems to be that there is some correlation with moderate to severe brain injuries. But this hasn’t been shown with mild brain injuries.
Most concussions on a rugby field are considered mild brain injuries. This is where things get complicated for the players.
In order to win, they have to show that the organizations knew or should have known that there was a link between these concussions and CTE/EOD.
However, the general scientific consensus is that this connection wasn’t known in the past. Worse for the players, the consensus is that the connection still hasn’t been shown!
To say that this is a major problem for the players is putting it mildly.
If the courts find that the players fail to prove the knowledge part of their claim, they will never even get to the next step. That would be presenting proof of causation. Let’s explain that next.
Can Players Prove That Rugby Concussions Cause Long-term Issues?
If the players prove knowledge, they then must prove “causation” i.e. one event caused another to happen.
They must show that specific injuries on the pitch caused their specific current health problems.
There are several steps to this.
Prove the general link
The first thing they must prove is that concussions cause CTE/EOD. However, as we have already seen, there is no scientific consensus on this!
A single study is not enough for scientific consensus; there must be repetitive, consistent findings.
Furthermore, CTE can generally only be shown on the autopsy table. This is an obvious problem for all living complainants.
Prove the specific links
The second thing they must prove is that their current symptoms come from specific injuries on the field.
This will involve a review of every head injury the player had in their entire life. But there must also be a review of non-rugby injuries.
They must be able to show a straight progression from specific injuries on the field to their current symptoms. This would be very difficult to do.
How The Unions May Defend Themselves
Our opinion is that the players’ chances of winning if this ever went to trial aren’t good.
There are plenty of issues that the governing bodies could raise in court.
Risk and duty of care
We can start with the argument that players who take part in a contact sport must assume some level of voluntary risk.
There’s also an argument about the general principle of whether the Unions have a duty of care to players.
But I don’t think the Unions would deny a duty of care. Now, that would be a public relations disaster.
Were the players ever irresponsible?
We also know that players sometimes hid injuries in order to get onto the field.
Even when cognitive tests were brought in to assess concussion, plenty of players have admitted they did their best to fake the results.
Players want to play! That’s why the Unions have increased their efforts to take the decision out of the players’ hands.
But if a player taking part in the lawsuit even admits hiding an injury once, that could skewer their case.
Little scientific backing for the players’ case
The Unions can bring in medical experts to present a review of the scientific literature.
There’s no doubt that the experts will say that a link between concussions and long-term brain injuries has not been proven yet.
Is All Lost For The Players?
Despite the grim forecast for the players if they take this to trial, they still have every chance of getting a decent settlement.
The last thing the Unions want to see is beloved former stars on television and in print, giving details of their grim medical conditions and blaming it all on their rugby employers.
Players in other sports have brought these types of suits. The leagues have settled with the players in virtually every case.
The NFL as the obvious example
American Football is an obvious comparison to rugby. The NFL is the governing body of the professional league.
The NFL has paid over one billion dollars in concussion settlements to date!
Does this help the rugby players’ suit? Well, not really.
The football settlement involved “no fault” found against the NFL. In other words, there is no court ruling that they knew or concealed issues around brain injuries.
If you want to know more, check out our in-depth article about the NFL concussion lawsuits.