BY JOHN DAVIDSON
Exclusive: A brain injury lawyer expects English rugby league to face its own lawsuit in the future from ex-players over the risks caused by concussion, following on from the start of similar legal action in rugby union.
A group of retired rugby union players suffering from early onset dementia are bringing legal proceedings against World Rugby, the Rugby Football Union and the Welsh Rugby Union after claiming the governing bodies did not protect them from the risks caused by concussions.
According to The Guardian Richard Boardman of Rylands Law, the firm representing the players, has been in touch with more than 100 players from both union and league who are reporting symptoms.
In Australia last year the degenerative brain condition known as CTE (Chronic Traumatic Encephalopathy), a state associated with repeated blows to the head, was found in the brain of two former professional rugby league players for the first time.
Ipek Tugcu, Senior Associate in the Brain Injury Team at Bolt Bordon Kemp, believes it is likely the RFL will face similar legal issues, just like English rugby union has been hit with, in the years to come.
“I don’t see why not,” Tugcu told Rugbyleaguehub.com Long Reads.
“I don’t see why any other sport, or league or division, would be exempt. It’s all about trying to prove whether they [the governing bodies] took those reasonable steps with the information that they had.
“It’s player’s jobs. Yes there’s some element of risk that is accepted, but the problem is that a lot of these players that they report they had no idea.
“They weren’t warned and they weren’t told about the risks they were being exposed to. Had they known, they would have done it differently.
“It may be found that the current guidelines [around head injuries] are acceptable, but what we’re talking about what happened back when they were playing [in the past].
“The number of players who have sustained dementia in their very early 40s is pretty damning.”
Two Australian retired rugby league players have already launched legal action against their old clubs over the handling of head knocks, in-ex Newcastle winger James McManus and former Gold Coast Giants, South Queensland Crushers and Parramatta Eels player Brett Horsnell.
Tugcu is not surprised by the new lawsuit in rugby union, but admits the action will be difficult to win for the players.
“I’m not surprised, I think it was a long time coming that we were going to follow suit with what happened in the US with the NFL,” she said.
“It’s a huge deal. To date there has not been a single athlete in the UK who has ever succeeded on this basis. If it’s successful it will be utterly ground-breaking.
“Having said that, it’s not going to be easy. There’s a lot of tough legal tests that need to be proven in order to win, and the way the law works the onus is on the person bringing the legal claim.
“So the burden is on these players and their legal team to provide sufficient evidence to convince a court. One of the first legal tests is being able to prove their actually was a failing, that relates to whether they can adequately prove whether the governing bodies knew, or out to have known, that there were risks of brain injuries and they didn’t take reasonable action.
“If they can get over that to identify a failing, then what they need to do is then prove had that happened – a measure being introduced – they wouldn’t have suffered these brain injuries. That in itself is a whole can of worms.
“It is accepted in a sport like rugby there is going to be some degree of injury to the head. And then on top of that you have that dementia is something that anyone can get at any time, so it’s not just something that athletes can get.
“So it’s trying to unpick those two things and trying to prove hypothetically those injuries would have been prevented had reasonable steps been taken.
“I hope it is going to be successful, but it’s going to be an uphill battle because there is a lot of unknowns and there is a lot of issues that can detract from being able to pin all the injuries on the sport.
“[But] we have to realize these players are in their early 40s and being diagnosed with dementia, whilst dementia can happen to anyone at any age, that’s not very usual to have so may athletes being diagnosed so young.
“They have to convince a court that these governing bodies didn’t take reasonable steps when they should have, and that by failing to do that, these players are left with injuries.”
The shoulder charge was banned in Super League in 2013, after it was outlawed in the NRL, while in the same year the Australian competition introduced a new rule that saw players automatically sin-binned for fighting.
But while rugby union is digging in for a vital legal battle, rugby league may have a bigger fight to face.
The ball is in play almost double the amount of time in league compared with union, with players required to complete a lot more tackles over the 80 minutes, making the 13-man code arguably the more brutal and dangerous of the two sports.
Former stars like Ian Roberts, Mario Fenech, Mark Broadhurst and Shontayne Hape have gone public with the serious effects repeated concussions suffered during their playing careers have had on their health, while Hull KR centre Andrew Heffernan was forced to retire at the age of just 23 in 2018 after a series of head injuries he picked up while playing in Super League.
Tugcu believes if the legal action in rugby union is successful it will have massive repercussions and “change everything”.
“Financially it could be devastating to the governing bodies, and it would probably mean loads of other players would have the confidence to come forward as well,” she said.
“I don’t think any of these players want to do this [starting the legal action]. I don’t think any of them are happy about it, I don’t think they’re looking forward to this; this probably would have taken a lot of soul-searching.
“They’re kind of going against their own group of people. They’re doing it because its necessary and the sad reality is money talks. The best way to get any organization to change is to threaten them with having to pay out financially.
“The whiff of that, and any gaps they have in their current protocols, will be dealt with swiftly.”
The RFL say they have had no contact from Rylands Law, the firm behind the rugby union lawsuit.
“The RFL are noting and monitoring developments, but have received no formal contact,” a spokesperson said.
“As the sport’s national governing body, the RFL is committed to player welfare and education which remain central to our partnerships with RL Cares and other organisations within the sport.”
