The physical, emotional, and legal toll of playing through pain
Gareth Farrelly, the former Ireland international who played with Aston Villa, Everton, and Bolton Wanderers in the Premier League, and with Bohemians and Cork City in the League of Ireland, is now a sports lawyer of some renown.
A solicitor based in England, he sits regularly on arbitration panels for the FA.
I know Gareth from the sports law world but did not know about his time as a youth player at Aston Villa and the toxic, bullying culture he alleges was present at the club in the early 1990s.
Last week, in an interview with the Guardian, Farrelly specifically mentioned Aston Villa youth coach Kevin MacDonald whose relentless, aggressive negativity, he says, took a heavy, psychological toll.
MacDonald has since voluntarily stepped aside from his current coaching role at Aston Villa and the club has commissioned an independent investigation by a barrister. That process must be respected.
For now, what is interesting about Gareth’s allegations is that in the last month, Irish sport has been taken with accounts of the use of painkillers in rugby prompted by revelations made to Off the Ball by Brian O’Driscoll; Farrelly’s interview shows that ‘playing hurt’ in sport can encompass both the emotional and physical.
What links both the physical and mental elements is the skewed ethics of professional sport — a win-at-all costs mentality; players foregoing their best interests to play; and the dangers of clubs having unfettered power over players.
When it comes to use of painkillers in rugby, the IRFU have stated that its medical protocols are now much improved, which they are.
The problem for rugby is that painkillers briefly tackle the symptoms of physical pain, but the source of such pain endures — the ever-increasing physicality of the game’s tackles and collisions.
The invasive physicality of modern rugby is matched not just by ever-increasing medical evidence on the chronic side-effects of painkiller use but also by the chronic neurological effects of concussive injuries in the sport.
Rugby may soon need to de-power its game or power up on lawyers. Class actions from past players, relating to both concussion and painkiller abuse, may be rugby’s future, as they are the NFL’s present.
Last year, for example, the Washington Post reported on the filing of a class action by retired players against the NFL for improper regulation of painkiller use in the sport. The players are claiming that they are now suffering long-term organ damage, debilitating joint damage and an array of other chronic injuries.
Central to the lawsuit (vigorously contested by the NFL) is the contention that the players each received an average of six to seven pain pills or injections a week over the course of a season.
Three interesting legal arguments arise for the above examples.
The first is that sometimes a distinction is made between performance-enhancing substances (doping) and performance-enabling substances (pain medication).
But what we have seen in court pleadings in the US (and here in Australia from ex-AFL players) is that that distinction does not play well in the courtroom.
The view in courts is that if a set of workers must, on a regular basis, take medication to perform their tasks, then that workplace is occupationally unhealthy.
And if employers can be proved to have negligently exposed their employees to such risks, giving rise to chronic injuries for such workers, then compensation is owed. Put simply, a medicalised workplace is not a safe workplace.
The second argument, often made in countering such claims, is that of player consent to medical treatment.
The nature of professional sports is such, however, that players have an overriding desire to play no matter what. Combine this with overwhelming pressure from a club to play, and a player’s consent might not be truly informed; in fact, it might be coerced.
Moreover, assumption of risk is part of contact sport but consent to the possibility of brain injury — concussion is the most common injury in professional rugby — may soon be seen in law as no consent at all given the risks to players’ future neurological health.
Players tend to have real-time appreciation of their body. In getting ready for the next game, they effectively assign their long-term health and welfare to others.
This places huge pressure on club doctors, who are often fellow employees of the players at a club and who inevitably become close to, and even consider themselves teammates of, the players.
Many of the health and doping scandals in sport in recent years, including doping, revolve around (a very small minority) of sports doctors facilitating the player first and not the patient.
Think of the role that Michele Ferrari had in the conspiracy to supply performance-enhancing substances to an array of professional cyclists such as Lance Armstrong.
Or even the ‘bloodgate’ error of judgement by Wendy Chapman, the doctor who cut the lip of Harlequins winger Tom Williams during their European Cup quarter-final with Leinster in 2009.
Ferrari’s actions nearly ruined a professional sport. Chapman’s actions nearly ruined her professional career.
All these issues — playing hurt, consent and the role of doctors — are not just for professional sport.
One of the most underplayed findings of this year’s ESRI report on the demands of inter-county GAA was that 37% of players often trained or played with their inter-county team while injured; 44% felt pressurised to play a senior inter-county game when injured; and 54% said they had received medication to assist them to play a senior inter-county match while injured.
Away from the physical and returning to Gareth Farrelly’s point on the emotional toll of systemic bullying in football; similar points of concern have affected other sports in the UK and have even been aired in court.
At an employment tribunal hearing in Manchester last week, initial arguments were heard in a case taken by cyclist Jess Varnish who is pursuing a claim of wrongful dismissal and discrimination against British Cycling and its national funding body, UK Sport.
Varnish is arguing that she was dropped from the sport’s Olympic programme in 2016 because she had spoken out against a bullying coaching culture in the sport.
British Cycling says she was dropped for performance-related reasons only.
The outcome of the case is of interest in Ireland because, as a preliminary step, Varnish must establish that the funding she received as an elite athlete from UK Sport, and as managed by British Cycling, put her in a contract of employment with both bodies.
If she succeeds, it may mean that UK Sport (and possibly Sport Ireland) will have to review its legal and contractual relations with all elite athletes in the run-up to the Tokyo 2020 Olympics and beyond.
Finally, the legal issues around painkillers in sport, the Farrelly allegations and even the Varnish case, pale both in comparison and in combination to the most dispiriting sports law story of 2018 — the jailing of Larry Nassar, former chief medic at USA Gymnastics, for his decades-long physical, mental, and sexual abuse of hundreds of gymnasts.
The moral bankruptcy of USA Gymnastics’ executives in not dealing with Nassar has now led to the organisation’s financial bankruptcy in the face of hundreds of lawsuits.
The victim impact assessment statements made by ex-gymnasts directly to Nassar in court earlier this year were harrowing but also astoundingly courageous.
Their testimony had echoes of what Mark Twain once said about courage: physical courage is common in sport, but the moral courage shown by so many throughout the year, and who have told their stories solely with the aim of protecting future athletes’ physical and mental well-being, is not only rare but also, one hopes, redemptive.
