Jack Anderson: World Rugby should take the AFL and NFL’s lead and mediate with past players to secure future

Jack Anderson: World Rugby should take the AFL and NFL’s lead and mediate with past players to secure future

In 1928 two important scientific papers were published in American medical journals, and then duly ignored for decades.

The first in the Journal of the American Medical Association was by pathologist Harrison Martland, which opened with the line: “For some time, fight fans and promoters have recognized a peculiar condition occurring among prize fighters which, in ring parlance, they speak of as ‘punch drunk’.”

Punch drunk syndrome, later re-termed dementia pugilistica, was framed by Martland’s observational concerns about what he called the chronic “mental hygiene” of retired boxers.

Anyone who has read Tris Dixon’s book Damage: The Untold Story of Brain Trauma in Boxing, published this year, will see that Martland’s concerns remain as relevant today as ever.

Many boxers since should have done what the great heavyweight Gene Tunney did in 1928: when they retired; they ought to have stayed retired.

Boxing is however a punch-drunk love.

I like it, I watch it. I am old enough to have seen the last of Muhammad Ali’s fights on TV. It was hard, desperately so, to read Dixon’s book on the slurring shell of a man that was Leon Spinks (an old foe of Ali’s) at the end of his life.

The second paper of 1928 was published in the New England Journal of Medicine by Lombard and Doering. It was about cancer rates in Massachusetts. It was the first paper of its kind to show a statistical correlation between cigarettes and cancer.

Decades later the authors were still trying to convince the wider public on the dangers of smoking. Big tobacco traduced their scholarly reputation and funded its own “independent research”. Smoking was for decades thereafter advertised as a means of relaxation, fun, even weight loss.

The industry distracted health concerns by arguing that the causes of illness in those studied may have been the result of other lifestyle choices or poor education.

Later, as the evidence gathered, the tobacco industry simply denied and lied.

In 2013, a PBS documentary League of Denial asserted that the NFL knew that the incidence of head injury in its sport was unacceptably high but remained in denial to the neurological detriment of past and current players’ welfare.

Later the NFL, without admission of liability, would agree to a billion-dollar settlement with thousands of former players who had sued citing negligence. Since the settlement, the NFL has introduced an array of rule changes to make the sport safer. The NFL has ensured that in its collective bargaining agreement with players, a percentage of the game’s extensive broadcasting revenues is set aside to support medical research on concussion, and that pension and insurance provisions for players have chronic injury-related top ups.

Legal settlements have followed elsewhere in the US including in ice hockey (NHL) and in college sports (NCAA).

Here in Australia, the AFL is soon to face a class action by former players arguing that the information they got about potential brain injury, and the medical treatment they received during their playing careers, was inadequate and has left them with a range of chronic neurological diseases.

A coronial inquest is taking place at present in Melbourne into the death of Shane Tuck, a former Richmond Tigers player and later part-time boxer who died tragically and prematurely in his 30s. A post-mortem examination found he was suffering a degenerative brain disease. The coroner is interested in, simply, whether Tuck’s cause of death was due to sport.

Tuck was from AFL royalty. His dad Michael holds a record seven AFL Premierships as part of an outstanding Hawthorn team of the 1980s. It is however Tuck’s widow, Katherine, and her insistence that it is now a time for Australian sport to revisit the “sins of the past” on head trauma that has been the most poignant and pointed part of the inquest thus far.

The AFL is worried.

Its concussion protocols are being investigated by WorkSafe, the local equivalent of the Health and Safety Authority.

For professional sports people the pitch is a workplace. If a leading cause of injury in that workplace is brain-related then, unsurprisingly, the authorities become interested in what the employer is doing to mitigate the risks to its workers.

In response, the AFL has recently hired two senior executives as “concussion leads”. It has also sought the assistance of a leading Australian litigation lawyer, Peter Gordon, to consider how some sort of trust fund or redress scheme might be established to cover the care of chronically injured former players.

As is the case with the proceedings instigated this year by several former professional rugby players in England, any legal case against a sports body, such as the AFL or RFU, will be lengthy, costly, and difficult to prove.

Causation remains a key issue. The link between brain diseases such as CTE and the playing of a sport must be proven directly and on the balance of probabilities.

It seems strange now but for decades the legal principle of causation meant that tobacco companies could not be sued by those suffering from the carcinogenic effects of smoking. In 1956, Lombard and Doering wrote pleadingly in the Atlantic: “If it has not been proved that tobacco is guilty of causing cancer of the lung, it has certainly been shown to have been on the scene of the crime.”

The causation gap in tobacco litigation, as in asbestos and other industrial disease litigation, was filled eventually by the volume of medical evidence. A similar pattern has taken place in concussion litigation in the US. That is why the NFL and others have agreed compensation packages with ex-players.

World Rugby should take the AFL and NFL’s lead and mediate with its past players to secure the sport’s future.

In the US, the burden of proof has switched away from the players in the courtroom and onto sports administrators by way of the court of public opinion.

In law, players are asked to provide evidence of harm. As more ex-players tell their stories, the public is asking sport how much more evidence it needs before it acts.

For a brilliant review of this reversal of the burden of proof, have a listen to Malcolm Gladwell’s Revisionist History podcast on the unexpected death in 2010 of University of Pennsylvania athlete Owen Thomas, one of the youngest athletes to be diagnosed with CTE.

He was 21.

- Jack Anderson teaches sports law at the University of Melbourne.

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