Rugby’s moment of reckoning is here.

6 years after the NFL agreed a €765 million settlement for a concussion-related lawsuit, a “test group” of 8 former rugby players is suing rugby’s governing bodies for the effects of repeated concussion. Irish players may be involved in the next wave of cases involving up to 70 players.

Their claim is that the governing bodies negligently failed to protect them from the known risks of concussion. They allege these risks became more prevalent in the professional era of the game (post 1995).

All 8 players are under 45, played in the professional era, and have received the same diagnosis – dementia with probable chronic traumatic encephalopathy (CTE). CTE is caused by repeated blows to the head.

What must they prove to succeed?

A claim in negligence against a sports body, broadly speaking, requires proof of 3 elements:
1.The governing body owed a duty of care to the player
2.The governing body failed to meet the requisite standard of care
3.This failure caused injury, loss or damage to the player

1.Duty of Care

This is a given – Governing bodies regulate the conduct of the game and owe a duty of care to players to set standards and safety protocols.  

2.Standard of Care

The requisite standard of care differs from sport to sport.

In rugby, certain injuries are inherent risks of playing the game. Breaking an arm or a leg in a lawful tackle, for example.

Brain injuries and dementia fall outside that. Governing bodies must take measures to meet a certain standard of care that protects players from these risks.

In the NFL, it was alleged that the governing body knew about brain injuries and did nothing. A complete failure of standards and protocols on concussion. Until as recently as 2010, the NFL continued to dispute the evidence linking repeated head impacts in American football, to long term brain damage.

Arguably, rugby authorities have been more proactive in recognising concussion risks and protocols.  They have implemented measures. 

To meet the standard of care required, the law does not demand perfection but it does demand that every reasonable effort is made by the governing body to protect players from the risks.

This could include :
•Communicating the risks
•Training and education
•Adequate concussion protocols
•Rigorously enforcing the protocols
•Baseline testing
•Providing medical advisers
•Monitoring and training coaches and referees on the issue

3. The Resulting Loss

If it is established that the governing body failed to meet their standard of care, the player must still establish that this failure caused the injury or loss – i.e. dementia.

Establishing this link can be difficult.  It will require complex medical and factual evidence.

Previous concussion-related actions against the NFL, NCAA and NHL all settled before trial. These legal proceedings in rugby may follow suit. However, at what cost ? Rugby's governing bodies are already cash strapped following COVID. 

We may therefore see a different approach play out.