Is rugby discharging its duty of care to players?

After a stellar Munster and Ireland rugby career, Donncha O’Callaghan will retire next year at the end of his third season with Worcester in the Premiership.
Is rugby discharging its duty of care to players?

O’Callaghan is one of the more interesting pundits on rugby. He does not resort to technical jargon to make a point. Nor does he shy away from the intense, relentless physicality of modern rugby, particularly at club level in England.

In contrast, when Leicester’s Manu Tuilagi was cited, and later cleared, for a tackle on Munster’s Chris Cloete during a recent Champions Cup game, Brian O’Driscoll declared that rugby had gone ‘soft’.

In its third decade of professionalism, is rugby now safer or softer?

The answer to that question lies primarily with its rule makers, World Rugby, who have worked closely with sports scientists, medics and others to effect changes to the game’s laws, in order to mitigate risks of injury, particularly to the head.

And yet in our litigious society will World Rugby’s rule changes be enough to discharge its duty of care towards those who play it?

Unlike the NFL, who for decades denied that American footballers faced any meaningful risk of degenerative brain damage from playing the game, World Rugby has been fully transparent about rugby’s risks.

The NFL settled a $1billion dollar class action with thousands of ex-players now suffering from various brain injury related injuries. The National Hockey League is facing a similar claim from ex-players and last month a number of ex-Australian Rules players announced that they were going to begin an action against the AFL for their cumulative, chronic injuries.

In all of the above cases, the key point made by the former players is that the league and their clubs could have done more to warn, protect and medically treat them during their career but that they negligently failed to do so.

Will World Rugby or the organisers of the Premiership in England face a similar class action in years to come?

Already we have seen the instigation of litigation by individual players, notably Cillian Willis.

Willis, who played for Connacht and Leinster, initiated proceedings against his final club Sale Sharks in 2016. The claim surrounds the implementation of the head injury assessment protocol (HIA).

Willis argues that the HIA process was not complied with and thus negligently endangered him and effectively ending his career. The claim, which could come to the courts in early 2018, is being vigorously contested by Sale.

Where it could be proven, for example, that a team doctor has not complied with the HIA protocol and sent a player back onto the field or where, despite failing the HIA, a coach nevertheless orders the player back onto the field, a negligence claim could be made out if the player then gets injured.

Beyond individual claims however, the more important question is whether current HIAs in professional rugby are fit for purpose in the first place?

If there is, as of yet, no medical consensus as to a definition of concussion nor as to optimal recovery, then surely rugby should be more cautious, beyond the current 10 minute HIA?

Arguably, the abridged nature of the HIA protocol, places team doctors under huge strain and even legal risk. They must make decisions in a pressurised, fluid environment with a coach in their earpiece demanding an update. It is a stark contrast from a surgery.

They often have to make decisions about patient players who they know intimately having worked with them all week and with whom they often share the same employer.

This is not suggesting that such doctors would ever deliberately place a player at risk — the picture of Eanna Falvey holding back a concussed Sean O’Brien as he attempted to return to the field against England in the 2015 Six Nations is an iconic representation of the ethos of such doctors. It also highlights the abnormal situation in which such decisions are made. The more independent assessment the better.

Apart from HIA issues, 2018 will see the wider trialling of the blue card in rugby, signalling greater powers for referees to order a player off for suspected concussion.

The underlying idea is a good one, analogous to the fact that in boxing a referee stopping a fight is the foremost preventative means of restricting injury.

But what if a referee does not show a blue card when he or she ought to have and a player gets injured? Will future referees have to be medically trained? Are we expecting too much already of rugby referees?

Two final things to expect in rugby in 2018. First, for the past number of years there have seen regular calls in England for a total ban on tackling at schoolboy rugby level.

The argument for prohibition is that such is the incidence of injury at that level, the UK government is in breach of a UN convention on the rights of children.

Apart from being wrong in law, the argument, in conflating rugby injuries to child abuse under international law, is gratuitously insulting to all those, primarily volunteers, who coach the game.

Proper technique taught properly at a young age is a key injury preventative strategy for all contact sports. That strategy is however predicated on coaches themselves being properly coached and properly assessed in their coaching.

That very point was made in a coroner’s court this year in Australia. The inquest was into the tragic death of a rugby league player James Ackerman.

He died as a result of a no-wrap, shoulder charge by an opponent in 2015. The coroner noted that, although the charge tackle had been banned since 2012, the perpetrator’s club, Brisbane Broncos, had not appeared to have properly trained their employee in altering his technique.

It is in this potentially litigious environment that the citing of Manu Tuilagi is viewed. Moreover, the professional rugby pitch is also a workplace. Employers, clubs, owe their employees an elevated duty of care. Occupational health and safety does not stop at the touchline.

Second, it is hoped that in 2018 we will see current players speak up more frequently about welfare and injury issues in their sport.

It was only when Formula 1 drivers, led by Jackie Stewart in the 1960s, campaigned for better safety did that sport’s appalling fatality rates decline. Stewart was told that he was soft and that he would eradicate the essence of Formula 1. He wasn’t and he didn’t.

Interestingly, for American football at its entry-level, high school, every state now has concussion laws requiring, among other things, that parental waivers be signed before a child is allowed participate or return to play post-concussion. This may well be the future of contact sports on this side of the Atlantic.

These concussion laws were inspired by a brave, young boy called Zackery Lystedt. In 2006, Zackery suffered catastrophic injuries during high school practice. He has learned to walk again but will never recover fully.

Before you dismiss this article as the work of an overly cautious or even opportunistic lawyer, search out and watch Zackery’s story.

He does want his sport banned. He still loves his football. He has done more to protect its participants that any lawyer or ex-player or pundit could ever do.

And he is not soft nor sorry for being safe.

Jack Anderson will be an Adjunct Professor at the School of Law, University of Limerick in 2018.

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