Friday, 17 January 2014

When it comes to head injuries in sport, prevention is better than cure

The Six Nations rugby championship is upon us. There are just a couple of weeks to go before the annual battle for oval ball supremacy among England, France, Scotland, Ireland, Wales and Italy. History says the trophy will be heading across the channel: each Six Nations championship held the year after a British Lions tour has been won by France. The Lions went on tour in 2013, so maybe the French will be sipping champagne on March 15, when the final matches are played.

I'm no rugby expert. I can't comment on what the form books says this year, but I enjoy watching the Six Nations - the physicality, speed and athleticism of modern rugby is breath-taking. But one thing I can comment on is the need for the best possible care for any player unfortunate enough to suffer a head injury.

Intense negotiations 

This is all the more salient given the news in Tuesday's Guardian about the ongoing legal wrangle between the National Football League and retired NFL players.

Some 4,000 former players sued the NFL, arguing that the NFL knew about the dangers of on-field head injuries long before it did anything, or enough, about them. It was also alleged that the NFL hadn't adequately assisted injured players once their careers were over.

Last August, after two months of what were described as "intense negotiations", the parties reached agreement to settle the litigation. The NFL did not admit liability, but the outline agreement was that the NFL and NFL properties would pay a total of $765 million for injury settlements and medical benefits for retired players. The money would also be used to fund medical and safety research and to pay all litigation expenses.

But as the Guardian reports, the $765m settlement has been rejected by a federal judge. Judge Anita Brody is not happy with the level of financial documentation submitted by the parties. She also doubts that the agreed sum will compensate all the retired NFL players who may one day be diagnosed as suffering from a brain injury. She doesn't doubt that the settlement was reached in good faith, but has, in effect, sent the parties back to the drawing board.

Collective Bargaining Agreements

Professional sport in Britain is conducted on different lines to the United States, where Collective Bargaining Agreements (CBAs) underpin the majority of sports. I am not a sports lawyer, but my understanding of CBAs is that they exist primarily to ensure that salary caps are in place. Salary caps are intended to keep costs down and create parity between clubs. CBAs also, as I understand it, have a considerable bearing on litigation between the leagues and players. Under the American CBA model, players have discernible rights against leagues, whereas here in Britain sportspeople like rugby and football players are employees of their clubs, not the governing leagues.

For this reason, threats by England footballers to strike back in 2003 (when they objected to the treatment of Rio Ferdinand over a missed drug test) may have shown admirable camaraderie but had no legal basis.
Likewise, it may be that officials on high in rugby, football and other UK professional sports look across the pond at the NFL litigation and breathe a tentative sign of relief, in the belief that the absence of CBAs here means that huge class actions against the leagues aren't heading their way.

Perhaps; a sports lawyer will have the answer. But two things are abundantly clear: first, even if the leagues in Britain may not be about to receive a massive head injury class action claim, individual clubs undoubtedly owe a duty of care to their players and could be sued; and secondly, the law is one thing - proper care and due diligence for sportspeople is another.

Prevention is better than cure

So, as we look forward to the Six Nations, it strikes me that we should redouble our efforts to ensure that the government takes the lead and sets an example. It should state unequivocally that clubs must, as a priority, ensure that the best possible awareness of the consequences of head injuries exists among everyone from managers and coaches to players and medical staff. Likewise, schools must take the best possible care of pupils who play sports like rugby and football. And similarly, those in charge of the national teams as they go into the Six Nations.

It's great news, for example, that from next season all professional rugby players will undergo a concussion training programme - but here's hoping the various Six Nations teams will also find time to talk their players about the risks of head injuries before the tournament.

We all want to see a fast, pulsating and impassioned contest for the Six Nations title. We don't want to see players suffering brain injuries that could have been prevented, which lead to litigation. Prevention is better than cure. Here's hoping that British sport - and its administrators all the way up to the government - wake up to the reality of traumatic head injuries suffered by those playing sport.

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