Concussion: “sport has a problem”

There is a tension, apparent throughout this enquiry, between the certainty among campaigners and the press that sport has a problem and the uncertainty in the science of what is causing that problem

So opens the report published this week by the House of Commons Select Committee for Digital, Culture, Media & Sport following its extensive investigation into concussion in sport.  The tension set out above is hardly eased by the immediate observation that “current scientific knowledge does not demonstrate a causal link between particular sporting activities and later development of dementia.”

Despite the amount of evidence the Committee considered, both from oral hearings and written submissions (all of which are linked in the report) it is a relatively brief output. Although there are several recommendations, some with a specified time frame, there is no clarity as to the extent of the “problem” and, for me at least, a sense of this phase coming to its close rather than moving issues significantly forward.

As expected, the report calls for greater coordination on increase funding of research

The Select Committee report was published days after news that Laurence Geller CBE has been appointed as Ministerial Adviser on concussion in sport and within a week of the  IIAC Annual Report, which is touched on below.

Given the focus of the Committee’s oral hearings, it is no surprise that football and rugby are the only professional sports specifically addressed in its report, with criticism levelled at the FA and the PFA for not doing enough over the last 20 years and, including the rugby unions, identifying the lack of clarity as to who has responsibility for driving change.

The Committee states that “change has not happened quickly enough and while the science currently available to us describes the problem it does not provide a solution.”  Not at the present time, in any event, but the further research called for on prevention, treatment and medical causation might begin to help identify a solution.

During the course of the oral hearings, some time was spent on the financial burden on the state caring for those affected and on the (perceived) deep pockets of (some) governing bodies.  The report does not make recommendations in that respect, but repeats the comment of Minister for Sport and Tourism, Nigel Huddleston, that “the principle of putting an obligation “on the institutions, bodies or groups that caused that damage in the first place would be a valid one.

The report concludes by identifying the need for a coherent approach in research into brain injury acquired in sport but notes current barriers to that, such as: the absence of any obligation to publish results, the potential for conflict as a consequence of how research is funded (perhaps a hint at ’hired gun’ rather than objective research?), the absence of external funding and the limited pool of data subjects.

There is then a recommendation that “the Government uses its power to convene interested parties and establish a single research fund that will co-ordinate and fund research [and] convene its own specialist group on concussion, drawing on campaign groups, relevant scientific expertise and sporting institutes to assess, every four years, the emerging science on this issue” with a priority on taking a precautionary approach to safety.

No quite so expected: involving the HSE in oversight of the risks of professional sport

An area for change could be in the potential involvement of the Health and Safety Executive (HSE).  The differentiator of professional sport is that the field of play for the amateur weekend warrior is the workplace of the professional athlete and, as such, there is a duty of care on the employer to provide a safe workplace.

The HSE’s written evidence was that “sports’ governing bodies are best placed to make judgements on the risks [to participants] and we would expect them to regularly review their rules and procedures as appropriate”. In response, the Select Committee was “astounded” that professional sport was, in a phrase readily repeated in the media: “left by the Health and Safety Executive to mark its own homework.”

Hence the recommendation that “the Government immediately mandate the HSE to work with National Governing Bodies of all sports to establish, by July 2022, a national framework for the reporting of sporting injuries. Within a year of the framework being published, all organised sports should be required to report any event that might lead to acquired brain injury.

To put it neutrally, this is an optimistic* timetable for what is, by any measure, a very significant piece of activity (*others might describe it as hopelessly idealistic). The range of unintended consequences of such a proposal is, potentially, enormous.

In passing almost, the report notes that “whether a condition might be classed as an industrial disease (and therefore engage an entitlement to compensation such as that paid to miners for pneumoconiosis) is determined by the Industrial Injuries Advisory Council.” (IIAC). It does not cite the most recent annual report of the IIAC, published on 15 July. In that, the IIAC addressed the particular issue of neurodegenerative brain disease in professional footballers and referenced the Jeff Astle inquest and recent evidence provided to the IIAC by Professor William Stewart, a leading Consultant  Neuropathologist who also gave evidence to the Select Committee. It is clear from its report that the IIAC will be taking its consideration of sports-related concussion forward: “This topic will continue to be discussed at IIAC meetings and a decision taken on how to best progress an investigation.

What next for these recommendations?

In terms of Westminster, the convention is that government usually has 60 days to respond to Select Committee reports, although a response might be delayed here given the party conference recess from 23 September.

Funding of the committee’s proposals will be key, but it seems that the government has on two recent occasions indirectly signalled the limit of its financial involvement. First, the statement on the appointment of Mr Geller as Ministerial Adviser on concussion noted that “This role is not remunerated.” Second, in responding on 21 July to a Parliamentary Question from Hilary Benn MP about research into the incidence of chronic traumatic encephalopathy (CTE) among footballers, the Sports Minister said that (emphasis added): “The Government remains committed to working with sports to build on the positive work on concussion that is already taking place, including the use of research … and to push the sports on what more they can be doing, including research.”

This clear steer from the Minister that affected sports should carry the financial burden – i.e. the government isn’t paying – comes as little surprise and chimes with the Committee’s take on research funding.

The last word(s)

The Committee makes fairly general recommendations for better, more coordinated approaches to concussion research and prevention across sport in the future, aimed at improving significantly what is already in place.

Motherhood and apple pie, perhaps; but it is important to remember, in the context of the ongoing rugby union litigation, that simply because changes for the future are recommended – maybe even required – that litigation focuses on historic duties of care around concussion, whether or not they were breached and on whether or not if there were breaches, they caused – in the legal sense of that term – the injuries complained of by the former players.

On the eve of the first test between the British & Irish Lions and South Africa these closing comments from the report will surely have relevance for the tourists facing the “physicality” of their hosts and even for those of us weekend warriors who ‘compete’ at much less rarefied levels:

“It will never be possible to ensure that sport is one hundred percent safe. It should, however, be expected that participants are aware of the risks involved and that there is a precautionary approach to risk management.”


David Spencer, Partner and Head of Sports
david.spencer@blmlaw.com

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