News

Injuries: Concussion: NFL case and its implications for sport

On 9 April, a preliminary case was heard in a Philadelphia courtroom as to whether former National Football League (NFL) players should be allowed to bring a collective action against the NFL for failure to prevent brain injury. Patrick Conliffe, a Sports Solicitor with McHale Muldoon Solicitors, examines the case and its potential liability implications.

The focus of a preliminary hearing on 9 April 2013 in a Philadelphia courtroom was whether former American National Football League (NFL) Players should be allowed to sue the NFL in the courts for brain injuries suffered on the field. The NFL is arguing that the dispute belong behind closed doors within the NFL resolution mechanisms, as player grievances have long since been governed by union contracts. The representatives for more than 4,200 former NFL players counter argue that the NFL has failed in its duty of care to the players and that the union contracts should not be used as a shield to protect against fraud and negligence. No decision is expected for a few months. Should US District Court Judge Brody allow for the case to go ahead, any malpractices and cover ups by the NFL will be aired in public.

Whilst this initial case focuses on the correct jurisdiction of the dispute and will give no guidance as of yet to the level of duty of care required by sports bodies, it should sound alarm bells for sports bodies this side of the Atlantic.

Definition of concussion

Concussion is a mild traumatic brain injury, caused by a blow to the head, disrupting or interfering with a person's normal functioning. The brain suddenly shifts, shakes or rotates upon impact and this can have differing levels of consequence. Initial symptoms can be loss of memory, clumsy movement, confusion and brief loss of consciousness. Long-term effects can include severe headaches, high sensitivities to light and noise, insomnia, concentration problems, continued memory loss, depression, dementia and other neurological problems.

Second Impact Syndrome (SIS) is where a player returns to the field of play, following on from suffering an initial concussion which has not properly healed and then suffers a second concussion. This causes rapid and severe brain swelling and can have catastrophic results. SIS can result from mild concussion days or weeks prior to the SIS.

In the USA, Chronic Traumatic Encephalopathy (CTE) has been found in many ex-NFL players. This is a degenerative brain disease that is caused by repeated blows to the head. Junior Seau, a former star linebacker in the NFL who retired in 2009, suffered from CTE and committed suicide in May last year. His family form part of the class action suit against the NFL.

Legal principles

The relationship between participants in sport is based on a mutual assumption of the risks that are inherent in sport which are reasonably foreseeable. The courts have previously stated that it will be almost impossible to establish liability in contact sports unless the actions of the defendants are outside the rules of the game.

In violent contact sports such as rugby, boxing, American football and Gaelic football, players accept a certain degree of risk when entering the field of play. It is a voluntary assumption of risk and is often referred to as the defence of Volenti. Players, however, do not accept risks where injury occurs as a result of negligence or recklessness on the part
of other sports participants whether they are fellow players, referees, coaches, medical staff or administrators.

It has been argued that the defence of Volenti has been eroded and what exists now is a variable standard of care or a 'playing culture' type of defence3. Sports participants may now in certain instances avoid liability where their reckless or dangerous actions are outside the rules of the game.

The leading case on this is Caldwell v Maguire, where a professional jockey was injured during a race4. The court laid down the following criteria in assessing the 'playing culture' defence:

- The duty is to exercise all care that is objectively reasonable in the circumstances for the avoidance of injury to other participants.

- The prevailing circumstances include the sport's objectives, the demands on participants, its inherent dangers, rules, customs, skill and judgment reasonably expected of a participant.

- The threshold of liability is high and error of judgment or lapse of skill or care is not sufficient.

- It may be difficult to prove a breach of duty unless there is proof of reckless disregard for safety.

Therefore, this judgment is forcing the courts to analyse to a greater degree how the sport in question is actually played, particularly in inherently dangerous sports. Participants must be allowed to behave with a greater degree of carelessness, but not in a manner of reckless disregard. This principle has been followed in subsequent cases.

Duty of care

Referees

The Courts have consistently stated that referees owe a duty of care to players in that it is an integral part of their job to enforce the safety rules of the sport. Where it is just and reasonable to do so, referees will be held liable. Cases such as Smoldon v Whitworth & Nolan, where the plaintiff - an under 19 colts rugby player - suffered a broken neck arising from a collapsed scrum, demonstrates that where referees do not strictly enforce the safety rules, they may be held liable. It was held that the referee was guilty of serious negligence in that he failed to enforce correctly the standards for international scrummaging under the
International Rugby Board (IRB) regulations.

A similar decision was reached in the amateur rugby case of Vowles v Evans & WRFU. In this case, the loose head prop on the claimant's team had to leave the play injured, and the claimant team had no experienced or trained front row forward to replace him. Despite this, the referee allowed the scrums to continue contested and towards the end of the game, a scrum collapsed and the claimant hooker suffered a dislocated neck and paralysis. The court held that it was just and reasonable to impose liability on the referee due to his negligence in not enforcing the rules. It is interesting to note that the Court was persuaded by the fact the referee's decision was not made in a split second and he had time to consider his decision. Referees may not be liable for certain split second decisions, but decisions made by referees with respect to concussions would not be considered split second decisions. Therefore, should a referee allow a player to return to the field of play following a concussion, they may be held liable as they have time to consider their decision, albeit the medical staff and coaches may be concurrently negligent, as shall be examined.

Referees must also be especially aware in amateur games where there is no medical practitioner at the game, as the duty of care owed to athletes falls heavily on the referee and the coaches.

Coaches and medical staff

Coaches must direct athletes in the correct techniques required to play the sport safely and in how to avoid injury'. This was the case in Fowles v Bedfordshire, where the claimant was injured while using gymnastics mats at a gym managed by the defendants. The staff had provided instructions which were deemed inadequate by the court. Their decision to provide instructions carried a duty of care.

Coaches must not field athletes whom they know are unfit to play, or if playing would pose a risk to their future health. Many coaches either urge or force athletes to play, as they feel they are indispensable to the team. Coaches must also avoid implementing excessive training regimes which could lead to serious injuries, including repeated head traumas.

Some coaches allow athletes to play following suspected concussions. This type of action will eventually lead to claims for negligence against them and their clubs and irreparable damage to the athletes over which they owe a duty of care.

Medical staff

It often falls on the team doctor to assess as to whether the athlete is fit to resume or not, despite the requirements of the coach or the protests of the athlete. It will also be the responsibility of the medical staff to ensure a safe and gradual return to play for an athlete following suffering concussion. The medical staff owe a duty of care to the athlete in the same respect as any doctor owes a duty of care to their patient. The sports body that employs the doctor can, of course, be held vicariously liable for any negligence found.

Coaches and medical staff will argue that players tell them they are 'ok' to continue, however the coaches and medical staff hold a position of responsibility within their given expertise to know when a player is unfit to continue. There will, however, always exist a conflict between the duty of care that doctors owe to athletes compared to the coaches requirement to have the athletes on the playing field.

Governing bodies

A governing body may owe a duty of care to athletes in two ways. Firstly they may be held to be vicariously liable for injuries caused by their employees - such as coaches, referees and medical staff, as referenced above. Secondly, a governing body may owe a duty of care in relation to the creation of its rules, policies and procedures to ensure that they provide adequately for athlete safety.

The seminal ruling here is in the famous Watson v British Boxing Board of Control (the BBBC) case9. Boxer, Michael Watson, fought Chris Eubank in 1991. The fight was stopped in the 12th round and subsequently Watson slipped into unconsciousness. It took roughly 30 minutes before Watson received the appropriate medical care in a nearby hospital. In the end, he lost half his brain function and half his body was paralysed. He successfully sued the BBBC for breaching the duty of care owed to him by not having the appropriate medical facilities at ringside.

The Court held that even though the BBBC had no contractual involvement in the fight, the fight took place under its auspices and this was enough to prove a nexus between the BBBC and Watson. The Court also found a causal link between the negligence of the BBBC and the traumatic injuries suffered by Watson.

It should be noted that there is authority stating that because an athlete is injured because of a particular rule, this will not automatically lead to liability being imposed on the rule maker. It must be proved that there was genuine negligence on the part of the sports body in making the rule in question. In Wertheim v United States Tennis Association (the USTA), Swedish tennis player Stefan Edberg hit the plaintiff linesman with a tennis ball in the groin which caused the linesman to suffer a stroke and subsequently die. The representatives for the deceased linesman argued that the USTA was negligent in the creation of the rule which required linesmen to crouch in a certain position and argued had this been different, the deceased would not have suffered such injuries. The court rejected the claim and stated that there was not a sufficient level of negligence from the USTA.

Sports bodies must ensure that their rules and regulations provide for athlete safety. As these rules are made calmly and dispassionately, the same exceptions to liability that apply to referees with respect to split second decisions do not apply to sports bodies.

Comments

The 4th International Conference on Concussion in Sport held in Zurich in November 2012 identified concussion as one of the most complex injuries in sport to diagnose. That consensus states that symptoms of concussion may evolve over a number of hours is of particular concern to those in control of safety procedures. Further concern is that 10-15% of concussions take longer than seven to 10 days to resolve.

Sports bodies must ensure that they follow best practice and procedure when it comes to the Gradual Return to Play (GRP) protocols in order to protect themselves from liability. This is a complex and multidisciplinary process, which must be handled with care. Currently, the IRB player welfare guidelines provide for players to return to the field of play after a minimum of six days and a return to full contact training after 24 hours should they show no further symptoms of concussion.

Regulation 10 of the IRB handbook states that any player suspected of having concussion or diagnosed with concussion must be taken off and not allowed back on the field. From viewing the recent Six Nations Championship and witnessing the likes of Brian O'Driscoll returning to play after serious blows to the head in the Italian game, it is questionable whether this rule is always enforced. NFL commentators have stated that players
in this condition would never be allowed to return to the field of play.

Recently, some countries have been testing a new protocol, the Pitch Side Concussion Assessment (PSCA). It states that if a player with suspected concussion can pass a series of tests lasting five minutes, than he is allowed back on the field of play. Players have to answer basic questions and are assessed by a medical expert. In light of expert evidence and the thresholds of liability referred to above, it is up for argument as to whether such a process is open to litigation.

Medical experts have warned that current protective headgear needs to be assessed and alternative safety equipment considered based on analytical studies on the most appropriate sports specific headgear required. Australian rugby union international, Berrick Barnes, who had to take time out of the game due to repeated concussions, was prohibited from wearing heavily padded headgear. The IRB regulations do not currently allow headgear to be thicker than 1cm and it must be made of soft and thin material. Is it time for the IRB and other sports to reconsider their regulations on protective equipment?

The recent England Professional Rugby Injury Surveillance Project has found that concussion is now the most common Aviva Premiership Rugby match injury. Concussion is a major issue in rugby union and other contact sports. All sports stakeholders must be aware of their duty of care owed and how best to carry it out without a reckless disregard for others. Sports stakeholders must take a pro-active role in risk management within their respective sports in order to protect themselves from liability.

22.5.13

Patrick Conliffe

Solicitor

McHale Muldoon Solicitors (incorporating McHale
& Co UK), Dublin

patrick.conliffe@mchalemuldoon.ie