Ipek Tugcu examines issues of head injury and compensation in sports law

It’s been seven years since the NFL paid $765m compensation to thousands of former players in settlement of their claims for brain damage sustained as part of the sport. Liability was never admitted. However, the sport swiftly upgraded its concussion protocols, presumably in an effort to avoid further pay-outs.

In comparison, UK sports have been unscathed from similar litigation – until now. Last year, hundreds of former professional footballers and rugby players launched legal action against their former governing bodies. They allege these organisations breached their duty of care by failing to take reasonable steps to mitigate the known risk of brain damage, and, as such, are liable for their neurodegenerative diagnoses.

What led to this?

How did we get here? The straightforward answer: there are elements of rugby and football which put athletes at increased risk of brain damage. However, when you lift the curtain, this is a complex story, where athletes haven’t been advised of the real risks of their jobs and authorities have passed the parcel on setting standardised and effective guidelines or accepting liability.

Sceptics argue injury is an unfortunate but unavoidable risk in any sport and athletes consented to this when pursuing their careers. However, it is not that simple, when the overwhelming evidence is players have not been aware of the actual risk of brain damage. This was acknowledged by the House of Commons Digital, Culture, Media and Sport Committee (DCMS), which noted, in its Concussion in Sport report: athletes: “told us about a lack of awareness among participants and those facilitating sport about the problem of concussion or, more specifically, the potential long-term consequences of suffering this kind of injury”.

What are the risks?

The risk of brain injury in a sport like boxing might be reasonably foreseeable by most, but this isn’t the case with a sport like football – where non-concussive blows to the head are thought to be a main culprit. With rugby, players assumed the existing Head Injury Assessments provided sufficient protection.

The total lack of independent governance is alarming. Every sport decides its own protocols for mitigating the risk of injury and also its management. Clearly, the current guidelines aren’t working. It’s been 20 years since a Coroner linked Jeff Astle’s death from chronic traumatic encephalopathy to: “the repeated heading of footballs.” Since then, there’s been a volume of further evidence linking neurodegenerative disease to football, including the 2019 FIELD study test which found footballers to be at more than double the risk compared to the general public. Yet, no meaningful change has been made in football – certainly none of the changes advocated by campaigners, such as temporary concussion substitutes, or mandatory limits on headers during training. It’s difficult not to be cynical and think prior to the litigation, there wasn’t enough drive or fear within the industry to make real change to safeguard their own players – a devastatingly sad reflection of how sports views the health of athletes over the business.

Who regulates this?

Allowing sports to self-regulate has permitted these problems to spiral out of control. During its investigations into concussion in sport, the DCMS recommended national input was now required, to set and monitor a baseline standard of protocols across all sports. However, the HSE, which usually oversees workplace injuries, is not throwing its hat into the ring, advising “sports’ governing bodies are best placed to make judgements on the risks and we would expect them to regularly review their rules and procedures as appropriate”.

Similarly, it’s been silence from the Industrial Injuries Advisory Council, which determines which conditions are classed as industrial diseases and, thus, qualify for benefits. Following the Coroner’s findings on Astle’s death, the Council rejected a 2003 application to have dementia in footballers classed as an occupational disease, citing insufficient evidence. The outcome of a renewed application, made following the FIELD study test, is still pending.

What’s next?

So here we are, still in a position where athletes are at increased risk of brain injuries, but sports continue to mark their own homework. There is no independent body taking overall responsibility and no minimum and standardised brain injury protocols throughout sports. There is also no formal recognition of the link between sports and neurodegenerative disease, prohibiting any chance of financial assistance for those affected.

I’m hopeful either the Industrial Injuries Advisory Council or the litigation will provide proper support and compensation to athletes injured by their employment.

Ipek Tugcu is a senior associate in the brain injury team at Bolt Burdon Kemp: boltburdonkemp.co.uk

Ipek Tugcu
Senior Associate
Bolt Burdon Kemp