23 March, 2021
The Government's Digital, Culture, Media and Sport Committee has commenced its inquiry into concussion in sport, with specific reference to the links between head trauma and dementia, and how the risks can be mitigated. The inquiry will not deal with individual cases or comment on existing legal proceedings, but it will consider the implications of successful legal action and the impact on sport in the longer term. The two will, of course, inform each other.
This has been building for a while. It seems that every time you metaphorically pick up a newspaper there is a new allegation against a sport's governing body about something that happened somewhere at some point in time. So, what seems to have sparked this trend and where do governing bodies stand legally in what are usually historical matters?
Ever since the "neighbour principle", the civil law has always been about making people accountable for their actions. In essence, and to grossly simplify to the point of undermining my entire profession, if you are to actively choose to do something then you should do it properly to a standard that most people would consider reasonable and make sure you that nobody gets hurt in the process, if you can. Central to that principle is the requirement for a duty of care. When you carry out an action you owe people who may be affected by that action a duty of care, but not those who will be unaffected, or only remotely affected.
Which brings me to sport governing bodies. These kinds of organisations are usually created to promote a particular sport, codify rules and regulations, and standardise competition. They drive quality and consistency. But the bodies themselves rarely have any direct involvement with individuals. At lower levels, many governing bodies (especially regional variants) do no more than keep a register of members, create a match order, and record league statistics. They may have no clue at all who an individual player is, how he or she is trained, what their club does to look after them, and whether they could become injured. And yet, I see governing bodies included as defendants in more than half of the sports cases I deal with, even where the allegations are of failings by clubs and individual players. That was almost non-existent even five years ago. So how are these bodies being brought into the fray?
The argument in many of these cases is about knowledge. It is similar in many ways to the Noise Induced Hearing Loss and asbestosis/mesothelioma litigation, which has died down somewhat more recently but remains simmering away in the background. The general allegation is that it takes a while for advancements in knowledge to filter down through the ranks, meaning that practical changes do not take effect until long after the knowledge has been attained. In noise cases, for instance, employers are generally taken to have been aware of the dangers of occupational noise from 1963, when the Ministry of Labour released a publication explaining it all and advising employers to reduce exposure of their workers to noise. Many were still failing to do that in 1990.
As a governing body, you are considered to be at the pinnacle of innovation and change. You are probably responsible for maintaining the "rule book", which is the standard by which competition within your jurisdiction is run. That, in turn, means that you have the power to amend that book to keep people as safe as possible. Suddenly, we have a potential duty of care to a wider spread of people, many of whom the body has never, and will never, meet and over which it did not intend to exert any influence or control. It isn't necessarily sufficient to insist that clubs operate a safeguarding policy, for instance; you must make sure that they do so.
The difficulty comes with working out how that should manifest. It is easy in hindsight to say "you knew about this 10 years ago but did nothing about it" when, in reality, the world was different 10 years ago. We live in an era of remarkable exponential growth where even relatively recent events now feel horribly outdated. The number of actors taking to Instagram to apologise for projects they were involved in 5 years ago, which had a devoted fanbase at the time, is testament to that. The question "why should we just accept this?" has turned in to a movement all of its own, to the point where it is actively seeking out new "victims". The difficulty is that it is only when the sea change is occurring that the shift in opinion changes. When the standards that the general public are willing to accept advance so quickly, the requirement to act on new information is proportionately speedy. It may have been sufficient for employers to introduce hearing protection 10 years after its benefits were generally known, but they didn't have Twitter then.
Judges will not expect a governing body to act in the same way now as they did 20 years ago, but it will be interesting to see when they believe that action should have been taken. Even now, the link between head injury and dementia is not yet proved or agreed upon, so can organisations reasonably be expected to have taken action based entirely upon what was, and remains, unproved theory? Or did we know enough about being "punch drunk" long enough ago to make taking action reasonable?
There are other complicating factors. As a player, you might be entitled to assume that your governing body will use advancements in knowledge to keep you as safe as they can but, ultimately, if you willingly turn up every Saturday understanding that you might end up at the wrong end of a Tuilagi tackle, can you reasonably be said to have been unaware of the danger you put yourself through? Arguably not, but the same argument might not wash for footballers who have seen no ill-effects from heading the ball until later in life, unaware of any link at all. In sports like rugby, how will the courts distinguish between the physical effects caused by "ordinary" concussion events associated with the sport, such as head clashes, misjudgements, awkward falls etc.), and those caused by a negligent failure to adapt game rules to reduce the risk of injury? Will they adopt a "material increase in risk of injury" approach, similar to that used in industrial disease cases?
However the litigation plays out, it will be very interesting to see how the DCSM Committee approach the inquiry through the filters of a post-pandemic population intent on seeking accountability at all costs.