It is too early to take sides in rugby’s toxic brain injury debate

Steve Thompson playing for England
Steve Thompson, one of the players taking legal action against rugby authorities, won the 2003 World Cup with England but cannot remember it - Action Images/Andy Budd

Concussion, and the litigation involving former rugby players, has become a huge issue for rugby. The increasing toxicity of the debate over legal liability has reached a point of divisiveness that is doing immense harm.

Some journalists have irrevocably decided that there is liability. Some have taken to alleging that those who disagree are, effectively, commercially conflicted shills for the rugby authorities. On the other ‘side’, there are now allegations of players jumping on the gravy train of litigation, fuelled by no win, no fee lawyers.

Before raising the following points and questions, I feel obliged to set out my credentials in this area so that you can make your own judgement about the weight of what is said. I am a former international rugby player. I was a personal injury lawyer who litigated issues that involved thousands of claimants in both the Court of Appeal and the House of Lords. I also have a Master of Science degree, which involved having to understand research reports and statistical analysis.

I do not know whether there is liability. I accept that it will not be possible to be definitive about this until the medical evidence has been tested under cross-examination. I am not saying the claimants have no case. I am saying there are difficult hurdles for them to establish that case. If there is liability, the claimants deserve damages. Even if there is not, rugby should try to help those severely affected and have sympathy for their travails.

Anyone can have an opinion on this matter but, if they are honest, they should form it by addressing the facts and not just ignoring questions that are inconvenient.

The first point to make is that the NFL litigation over concussion is not directly referable to this case. The tackle techniques and rules about the legality of contacts to the head were, at the relevant times, completely different. Secondly, it is not correct to assert that knowledge imputed to the NFL will, under UK law, be deemed to apply to rugby at the same time.

The central issue to keep in mind is the difference between correlation and causation, and this applies both to the law and science around concussion. It is not possible in this short article to look at every medical and legal point. So, let us focus on two areas, but bear in mind there are communalities throughout the whole topic.

Chronic traumatic encephalopathy (CTE) was first diagnosed by Dr Bennet Omalu in 2005, following his postmortem on Mike Webster of Pittsburgh Steelers. According to Boston University, the world’s leading research faculty on CTE, there is no reliable way of diagnosing CTE before death. Claiming someone has ‘probable CTE’ is going to be problematic before a court.

If a player’s career ended before 2005, there will be the additional difficulty of proving rugby had the requisite knowledge to require it to act over CTE, when it had not been discovered. It is not good enough to claim CTE is the same as the previously diagnosed dementia pugilistica (being punch drunk). The knowledge dates for these conditions are different and it is legitimate to claim that boxing, where you can win by knocking out an opponent, is in a distinct category.

Although several media platforms have stated that concussion-related CTE causes the brain to attack itself, that is not correct and the truth is subtly but significantly different. They have found that in CTE cases there is a high correlation of abnormal patterns of tubulin associated unit (“tau”) proteins. They have not been able to specify what causes these proteins to go awry.

Early-onset dementia is also one of the diagnoses said to apply to some of the claimants, but concussion is only one of 12 identified possible causes. Saying that there is a correlation between early-onset dementia and concussed players is not enough for legal liability.

Establishing concussion as the cause requires evidence that none of the others apply or a definitive reason to conclude concussion is a principal cause.

A further problem is the large body of research that shows that retired athletes, including those from non-contact sports, have a variety of psychological and physiological problems, which mirror those claimed to have been caused by concussion. To establish liability, claimants must prove that such problems are caused by concussion and can be definitively distinguished. In any scientific analysis, they are going to have to pass the statistical significance test of there being a less than 0.05 chance that their results are not the result of coincidence.

The delayed cases are likely to go on for another two years, not least because the claimants have failed to properly comply with procedural stipulations and have had cost orders awarded against them. During this time, some commentators are likely to make further uncorroborated claims while others continue to claim that the game is going soft. None of this is helpful.

The law does not require rugby to be risk-free. It requires every reasonable step to be taken to reduce foreseeable risk and to inform people about that risk. This is why trials of new safety laws must be run and opponents of these steps need to accept this legal duty without whinging. The law does not say that medical procedures, taken at a certain time, are deemed negligent if they are subsequently changed. It only requires them to have been taken in line with a substantial body of similar expert opinion, even if other experts disagreed at the time.

I imagine that people will continue to push their agendas, but the polarisation, misunderstanding and misinformation that is creeping into this issue needs to stop. Get the cases heard, so that we know where liability lies and what we must deal with. In the meantime, would it be too much to ask people to address the above points, to refrain from abusing each other and to wait until the case is decided?

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