Concussion in sport: They thought it was all over… is it now?

On 27 April, the Digital Media Culture and Sport Select Committee (DMCSSC) reconvened for a third oral hearing to address concussion in sport, the recording of which can be accessed here.  Originally planned to be a two hearing process, this latest session appears to have been convened at the request of the witnesses. Their evidence was taken in two panel sessions, the first involving player representatives:

  • Damian Hopley MBE, Chief Executive at The Rugby Players Association
  • Paul Struthers, Director at Professional Players Federation
  • Gordon Taylor OBE, Chief Executive at Professional Footballers Association

and the second involving specialist clinicians:

  • Dr John Etherington CBE, Medical Director & Consultant Rheumatologist at Faculty of Sport and Exercise Medicine UK
  • Dr Richard Sylvester, Consultant Neurologist at Institute of Sport, Exercise and Health

Education and welfare remain primary concerns

The session developed points around education and player welfare first aired in previous Committee sessions.  Mr Struthers and Mr Hopley both referenced the duty of care their organisations have to their members, with the latter identifying mandatory training which has been in place for some time, and which continues to develop with invaluable input from former athletes: “players listen to players”.

The HSE was reported to have issued a statement to the Committee which arrived in the middle of this session, leading to a question as to what involvement the HSE should have in sport, given its purpose “to prevent work-related death, injury and ill health” (emphasis added).  In that context Mr Hopley described injury in rugby (and more broadly than concussion) as being “part and parcel” of the game.  Mr Struthers complimented the robust injury reporting of the British Horseracing Authority, in a sport where “injury risk is significant” but neither appeared to see a place for the HSE to intervene. The possibility of sports-related neurodegenerative disease being regarded as an industrial disease was revisited and Mr Struthers addressed a new potential complication: the Industrial Injuries Advisory Committee (IIAC) requires any research to be independent and, as the sports industry has largely funded the research to date, it could not be considered by the IIAC. 

Protection for professional athletes was also considered in the context of contractual provisions for personal injury.  Mr Hopley identified the RPA contract provided nine months full pay and three months half pay in the event of injury suffered during the contract period.  Mr Taylor informed the Committee – albeit without particular detail – that all PFA players are protected for the term of the contract, that clubs are “obliged” to look after the players and that insurance is available for career-ending injuries.  He also observed that players are “encouraged to take out personal insurance”.

Committee members asked to what “compensation” was available for lifetime payments for athletes affected by dementia? This aspect flew dangerously close to the ongoing rugby litigation which the Committee has identified will not be addressed in this inquiry, and it appeared to confuse, or at least conflate, the issue of first party contractual claims and third party liability claims.

The divide between amateur and elite

There was limited and rather belated reference to amateur, grass roots sport in the first panel.  Whilst Mr Hopley identified a filtering down of education from elite to grassroots rugby, Mr Taylor referred to allocation of funds to the grassroots whereas Mr Struthers spoke of a concern that welfare comes second place to profit.

It was acknowledged that there were too many sports where concussion protocols either don’t exist or are inadequate and there was consensus on concerning the need to establish a minimum standard to adhere to, from elite to grassroots levels.

A focus on education and risk awareness

Education and knowledge generally were key themes of the second panel.  The clinicians agreed on the wider personal and societal benefit of sport and on the negative effects of people being distracted from the physical activity .  They spoke of the difficulties in developing an informed risk/benefit analysis of participation versus injury (including dementia) when the consideration and calculation of risk was multifactorial. The risk analyses for a professional athlete and an amateur might be vastly different, as the professional is likely willing to take a greater risk because it is their livelihood, but the amateur may have a lower risk appetite if risk of injury might adversely affect their livelihood.

Both clinicians also identified the problem that the causality or mechanisms of dementia are not fully understood.  Dr Sylvester argued that there needs to be care in the definitions used and said we don’t really know what “concussion” means, we do not know when people’s brains have fully recovered (from concussion) and we do not know the entire risk profile in terms of dementia. Furthermore, there are many risk factors for dementia, some which can be modified, some which cannot.

Both clinicians advocated a precautionary approach to risk, although recognising that removing or reducing one factor (e.g. banning heading a football) would not remove all risk where it may be only one of many contributing factors.

What can government do?

Bearing in mind the focus of the inquiry has been generally on professional sport and what it might do in the face of an apparent dementia crisis, the Doctors were asked by the Committee what their number one recommendation would be if they were writing the report?  Dr Sylvester replied that this was a public health and NHS issue. With hundreds of thousands participating in sport week in, week out, the professional / elite element was the tip of the iceberg and he had more concern for athletes and participants at grassroots level where simple, safe protocols and instructions could be followed by non-specialists to reduce risk, recognise issues and therefore improve treatment and outcomes.

On the issue of treatment, Dr Etherington highlighted the lack of resource and facilities in the NHS for addressing brain trauma and the wider societal issues that delaying or failing to treat it can bring.  His view was that this was not just an NHS issue or responsibility, but one which involves the Department of Education, Department for Work and Pensions and the Ministry of Justice.

What next?

These witnesses were perhaps not best placed to explore the difference between personal insurance cover (first party claims) and third party claims which might be addressed by liability insurance. Both types of cover are different from (non-fault) player welfare funds, a topic which was also touched on in this session and remains an area of developing interest.  Might there be another session to hear from for those able to inform about relevant insurance issues? That prospect may rest in the hands of those in this sector: it seems likely to me that the Committee would be keen to hear from insurance spokespeople if they approached the Committee and made themselves available.

Reference during the session to the 2017 report of Baroness Grey-Thompson; “Duty of Care in Sport” and in particular her recommendation of a “Sports Ombudsman to hold national governing bodies to account …” was a proposition which appeared to have some traction.  This could, in future, form part of the Committee’s recommendations.

If serious consideration is to be given to the classification of neurodegenerative disease as an industrial injury arising from sport, that raises the question of who might fund the necessarily independent research for submission to the IIAC?  In a world where Dr Sylvester referred to myriad reports on the topic, many of which were not fit for purpose, would adding another – albeit independent – study to the growing pile make a difference?  And what is the impact of coroners identifying matters such as the heading of footballs as a contributing factor to the death of  former players such as Alan Jarvis? [BBC coverage of the inquest report may be found here].

We still have no timeframe for the Committee’s report. But with the ongoing claim in Rugby Union and the recent pre-publicity of a similar apparently imminent claim in Rugby League, the sporting world’s reaction to concussion, dementia and questions of education and responsibility will remain a headline piece for the foreseeable future.


David Spencer, Partner and Head of the Sports Practice Group at BLM
david.spencer@blmlaw.com

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