Concussion in contact sports is nothing new to sports fans and participants, however, recent events have drawn this often overlooked subject back into the spotlight of the sporting media.

The 2014 World Cup was marred by a number of concussions, which has drawn strong criticism against FIFA’s views of concussions and lack of appreciation for player welfare. We saw in the World Cup Final that despite suffering a concussion in the 17th minute of the first half, Germany’s Christoph Kramer was allowed by medical staff to return to the field of play for a further 15 minutes before Kramer had to be assisted off the field looking completely shellshocked. The result of this for Kramer it transpires is that he cannot in fact remember much of the game where his team beat Argentina 1-0 and won the World Cup, and indeed cannot remember any of the first half he has admitted. However, this was not the only concussion to draw attention in the World Cup, as Uruguay’s Alvaro Pereria and Argentina’s Javier Mascherano both suffered suspected concussions in 2 separate matches yet overruled the advices of medical personnel and returned to the field of play in both matches to complete the game. These incidents have drawn a lot of criticism aimed primarily at FIFA and their attitude to Player Welfare. Critics have suggested that FIFA should follow the NFL’s lead and send players suspected of concussion for evaluation in the locker room, prohibiting them from returning to the field of play.

Another recent example of a high profile head injury was George Smith’s severe concussion in the last test match between Australia and the British and Irish Lions during the 2013 tour of Australia. The concussion led to Smith having to be escorted from the pitch by two team assistants given that he could barely walk as he was so dazed and confused. Amazingly Smith appeared back on the pitch less than 5 minutes later to play the remainder of the match.

Also, who can forget the outrage surrounding Tottenham Hotspurs football club last November when goalkeeper Hugo Lloris was allowed to continue to play a match after he was knocked unconscious during a clash with Everton’s Romelu Lukaku. Such was the public anger surrounding the incident that the issue of the welfare of professional footballers and rugby players was raised by MP Chris Bryant in the House of Commons.

In May this year rugby fans witnessed the sickening blow to the head that Toulouse player Florian Fritz sustained whilst playing a Top 14 rugby Match against Racing Metro. Fritz was visibly concussed yet was permitted and encouraged to continue playing. The IRB and Fédération Française de Rugby (FFR) formally requested an investigation into the apparent failure to apply the IRB head injury protocols that led to Fritz being allowed to continue to play.

In September 2013 Benjamin Robinson, a 14 year old student at Carrickfergus Grammar School died as a result of sustaining two concussions in quick succession whilst playing in a rugby match for his school. The coroner’s report stated that Benjamin Robinson died from second impact syndrome where two consecutive injuries are sustained in a short period of time. This was the first recorded death of its kind in Ireland or Britain.

This year we saw the case of Lucas Neville who secured a €2.75m settlement approved by the High Court on 24 March as a result of suffering severe head injuries he sustained in a schoolboy rugby match in 2009. Mr Neville had taken a case against his former school and St Vincent’s Hospital for the injuries he received. Mr Neville suffered a head injury during schools rugby training at St Michael’s College on 11 November 2009 and received treatment at St Vincent’s Hospital for his injuries. He then attended St Vincent’s Hospital again 4 days later complaining of suffering from headaches and problems with eye pain. No scan of Mr Neville’s brain was carried out. Had a scan been performed on Mr Neville’s brain it would have shown that he had a subdural haematoma which could have been evacuated. He would not have returned to school or training had this procedure been performed. Despite the school having a protocol in place under which students who had suffered head injuries were not allowed to participate in contact sports for a period of 3 weeks after the injury, on 28 November 2009 Mr Neville was on the substitute’s bench during a match. He was called onto the pitch to play and suffered a head injury which resulted in him being rushed to Beaumont Hospital for life saving surgery. The end result for Mr Neville is that he has been left with a permanent brain injury which will adversely affect his future educational and employment prospects.

The USA has examined the issue of the duty of care owed to National Football League (NFL) Players in recent times. On 8 July 2014 United States District Court Judge Anita Brody (District of Pennsylvania) granted preliminary approval to a landmark settlement whereby thousands of former NFL players would receive compensation for concussion related claims. 4500 former professional players and families of former professional players had taken a class action law suit against the NFL on account of the NFL’s handling of the welfare of players during their playing careers, also accusing the NFL of negligence and fraud in its handling of concussions in particular. The NFL had made an initial settlement offer where damages payments to retired players would be capped at $675 million which was rejected by Judge Brody. The new settlement which has been approved by Judge Brody provides that the cap on damages has been removed.

In the last number of decades the NFL have come under severe criticism for their handling of concussions in the sport of American Football. The NFL has further been accused of covering up or trying to influence scientific studies regarding the negative effects of head injuries on NFL players. However, with a growing number of high profile retired players spiralling into varying states of mental decline the NFL have had to address the issue. One of the most publicised tragedies concerning a former NFL player was the story of the late Junior Seau who had a professional career spanning over 20 years playing as a linebacker for the San Diego Chargers, the Miami Dolphins and the New England Patriots. Amazingly Seau was never once diagnosed with a concussion in his entire career. Following his retirement Seau spiralled into a state of depression, alcohol and substance addiction, gambling problems and ultimately took his own life by shooting himself in the chest. Seau’s family donated his brain tissue to the National Institute of Neurological Disorders and Stroke in the United States of America which found that Seau’s brain showed definitive signs of Chronic Traumatic Encephalopathy (CTE), a progressive degenerative disease that is caused by repetitive brain injuries to an individual. CTE can lead to loss of cognitive function, dementia, aggression and depression.

Dr Ann McKee who is a leading expert on football and brain damage in the United States has stated in interviews for a book called ‘League of Denial’, that incidences of neurodegenerative disease among NFL players would prove to be “shockingly high”, and even went on to state that “most NFL players are going to get this” and that it was just a question of to what degree they would get the disease. Since CTE was first diagnosed in deceased NFL players in 2005 Dr McKee has studied in excess of 50 brains harvested from deceased NFL players and all but two of the brains had CTE. McKee went on to state that she was “really wondering if every single football player doesn’t have this.”

The NFL has recently grasped reality and realised that it needs to protect its players and as a result has reached this landmark settlement with the 4500 former NFL players. The NFL has also contributed $130 million to scientific research to be conducted over a period of 10 years into the subject of concussion and its long term effects on individuals. Some disappointment has been expressed at the settlement on account of the fact that this will prevent there being any likely requirement of the NFL having to disclose the files it holds on the subject of player concussion over the last number of decades and how much awareness the NFL had over the level of risk which it was exposing its players to.

Given these recent events the NFL have now put regulations in place which require a player diagnosed with a possible concussion to leave the field for the locker room. Medical personnel are then required to remain with the player for the remainder of the game.

Concerns have also been raised in relation to the welfare of modern day professional rugby players. This has been brought to public attention in Ireland by former professional rugby players John Fogarty and Bernard Jackman. Fogarty had to retire unexpectedly in November 2010 citing repeated concussions as the reason he was bringing to an end his professional rugby career. Fogarty who was always known for his good humour and being a bit of a character has admitted that he now regularly suffers terrible headaches and mood swings and suffers from periods of depression, all of which have a major impact on his daily life. Jackman has stated in his autobiography that he suffered upwards of 20 concussions in his last 3 seasons but that he would use various methods to bide his time allowing himself to come to his senses and attempt to convince the medical staff that he was not suffering from a concussion so that he could continue to play. Jackman has stated that players are under pressure to continue to play and to make themselves available for matches as quickly as possible having suffered concussions. As a result of this Jackman states that players often do not report when they have suffered a concussion, knowing that the medical staff could sideline them from playing for a number of weeks.

In 2012 the International Rugby Board (IRB) implemented what was known as the Pitchside Suspected Concussion Assessment Procedure (PSCA). This procedure provided that where a player was suspected to have sustained a concussion then the player would be temporarily substituted for a 5 minute period to allow team medics to examine the player, conduct a series of tests and determine whether the player had in fact sustained a concussion. If the player passed the tests then they were cleared to return to the field of play. If the player failed the test then they could not return to the field of play. The procedure was met with mixed responses, the IRB defending the procedure vigorously, and other medical professionals such as Dr Barry O Driscoll, former IRB medical advisor and uncle of retired Irish international Brian O Driscoll, condemning it publicly. Dr O Drscoll ultimately retired from his role as an advisor at the IRB over the institution of the procedure, arguing that it was reckless and dangerous to only allow medics 5 minutes to determine whether a player had sustained a neurological injury or not.

Dr O’Driscoll is of the view that the current and recently retired generation of professional rugby players are effectively test subjects and we will not know the long term effects of the physicality of the modern game on their health for years to come. At one point in time there was a minimum 3 week rule where a player who had been deemed to suffer a concussion would be prevented from returning to contact for a period of 3 weeks. This was subsequently reduced to a period of 15 days. However, this rule was relaxed further in order to allow each case to be treated individually.

Following the George Smith incident mentioned at the beginning of this article the IRB were forced to readdress their position in relation to the assessment of players suspected of having suffered a concussion. Criticism of the PSCA perhaps may have been warranted as an inappropriate form of assessment since it allowed George Smith back on to a pitch to complete a match when a few minutes previously he could not walk without assistance (George Smith referred to the footage of him being led from the pitch as “the snake dance”) on account of having suffered a severe concussion. On 1 June 2014 the IRB introduced the Head Injury Assessment Procedure (HIA) on a trial basis to replace the PSCA. The HIA provides that a player suspected of concussion is to be temporarily substituted from the field of play for a period of 10 minutes to allow the medical staff to perform a series of tests and to monitor the player to try to determine whether the player is concussed or not.

In Ireland recent events show a positive shift in the attitude towards taking head injuries seriously  in sport at both the professional and amateur levels. Concussion is now being addressed at a political level in Ireland, with a Dáil Committee meeting having been held to discuss the issue on 3 October 2014. Dublin Inter-County footballer Michael Darragh Macauley, ambassador for Acquired Brain Injury Ireland, addressed the committee to highlight the issue of concussion in sport in Ireland. On 9 October 2014 medical experts recommended a zero tolerance approach to concussion in sport at a joint Oireachtas Committee on Health and Children. Medical representatives involved in sports that involve a risk of concussion are now uniting to promote education and awareness of concussion in sports amongst the players and the coaching staff.

Increased education and awareness about the symptoms of concussion and the risks of not treating concussion will hopefully lead to improvements in relation to the safety of sports participants. Protocols for dealing with concussions should be put in place in all NGB rulebooks in Ireland especially so for underage level. As was highlighted in the cases of Benjamin Robinson and Lucas Neville, the lack of awareness about concussions has already led to two tragic events in this country in underage sports. Training needs to be provided to coaching staff on the symptoms and dangers of concussion and the requirement to remove players with a suspected concussion from the field of play. In Ireland it is encouraging to see that the IRFU and GAA are now leading education awareness programmes in relation to concussion and using high profile players to assist in spreading the message.

Concussion in sport is an area that experts are only beginning to get a grasp on. The legal implications for NGB’s are profound.  NGB’s have a duty of care to protect all players within their care or organisation from injury where such injuries are ‘reasonably foreseeable’.  With the IRB and NFL bulking up their concussion protocols at the international level it is a good omen that the management of concussion and player safety will be improved at national levels throughout the sporting world.

If your NGB does not take action to modify your rulebook to take into account preventative steps to avoid such injuries then those NGB’s leave themselves open to negligence claims by injured parties.  No excuses – you have been warned.

The “warrior” attitude of playing on having suffered a concussion appears to be on the waine and an attitude of player safety looks to be on the rise. Long may it continue.

For more information contact Gavin Bluett.

Disclaimer

This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.