Concussion in sport: The government response and what the next round might look like

We recently passed the first anniversary of the letter of claim on behalf of former international rugby union players alleging that negligence of the sport’s authorities (World Rugby, the RFU and Wales Rugby) caused or contributed to their neurodegenerative symptoms and diagnoses. I expect unwittingly, it coincided with the government’s publication of its formal response to the Digital Culture Media and Sport Select Committee’s (DCMSSC) July 2021 report ‘Concussion in Sport’. In the body of this blog I’ll examine the response and look at possible future developments related to head injuries in professional and amateur sport.

First, it’s important to recognise the government’s response (a copy of which can be accessed here) is broadly positive, identifying the benefits of sport to both the individual and society at large. However, set against these benefits is the risk of head and brain injuries, the response to which – from participants to governing bodies – needs to continue to improve: “The end goal is to reduce risk where possible, and make sure people know what action to take if head injury does occur.”

The government’s response identifies the DCMSSC’s inquiry as a “valuable call to action” and broadly, if not entirely, approves and supports the Committee’s objectives. That said, the slightly confusing opening suggests that the response “[does] not represent the final word on the subject, but rather set out a starting point for the work that has already been initiated and is intended to be continuously carried out as research, technology and data collection evolve.”

Second, and to mangle Churchill somewhat, it seems we are now at the start of the beginning, rather than the beginning of the end in the campaign on concussion.  Neither this response nor the Committee’s report can realistically be regarded as starting the clock for the purposes of constructive knowledge of the dangers from concussion injury in sport (which some may say is already ticking) but clubs, organisations and governing bodies might now be expected to inform participants fully of the potential risk of concussion and of the mitigation and treatment protocols in place.  And participants may now feel better equipped to ask what their sport is doing to address the issues.

One of the key criticisms made by the DCMSSC inquiry was that sport – in a headline-grabbing cliché – had been allowed to “mark its own homework”. In response, the government seems to be seeking to bring “sport, health, education and technology sectors together to address the issue collaboratively” and to set a tone of coordinating stakeholder activity rather than a prescription of state intervention.

The themes in the government’s response are of more coordinated research, better use of technology and improved data collection. These clearly speak to an intention and aspiration to provide better information and to enhance the knowledge of participants, organisations and national governing bodies alike, in a drive to continue to improve player safety and welfare.

Concussion risk is clearly a ‘cross-sport’ issue and the coordinating role that government is seeking to play is not a surprise. It is, arguably, what most stakeholders were expecting. With the report clearly stating that government remains “able to step in and take action when and where it believes others are not able to, or where there is need to accelerate and coordinate action”, it would be wrong to regard coordination as an abdication of responsibility.  The government’s stance has the real benefit of allowing various sports individually and collectively to put their house in order and to engage in what is a very important long-term welfare issue.  We have seen, over the course of the last year that process has already started.

Nor is the personal responsibility of participants forgotten. The government response by no means looks to push everything back onto players but, in a section that deserves repeating in full, clearly describes their role in the development of how sport educates about, and responds to, concussion:

Most importantly, perhaps, the people taking part in sport are central to all considerations around safety. Individuals need to be made aware of the risks of taking part and be provided with clear advice about safety. They are also entitled to speak up if things are unclear or do not seem right. Players can be supported in this by their family, friends, fellow players, coaches, organisers, officials and spectators, who may be able to spot risks or issues that are not immediately obvious to those on the field of play.

In a strongly-worded recommendation, the Committee called on government “immediately [to] mandate the Health and Safety Executive to work with National Governing Bodies to establish, by July 2022, a national framework of reporting of sporting injuries.”  The government has rather side-stepped this exhortation by recognising that “other organisations” (although none are identified) are better placed to collate and use the relevant information. The government has, however, offered to consider the feasibility of a national register of concussion incidents. To develop that process, the government will convene the sports concussion research forum to discuss a standard framework; another clear instance of its preference for coordination over direct intervention.

That the government is choosing not to intervene directly may also explain the absence of any reference to financial input and/or support from public funds. I suspect that government doesn’t have a clear picture of the level of funding needed to develop or ‘pump prime’ data capture, research, knowledge dissemination and education and, as a consequence, is loath to write a blank cheque in that regard.

With what might reasonably be described as an ambitious timetable, the immediate next steps include the intention to bring together external groups to develop a strategy extending beyond the life of the current Parliament.  There is significant reliance on the sharing of information, the use and development of technology, and on the enthusiasm for cross-sport and cross-agency collaboration in what will inevitably be a long term process, and one which will need to be regularly and consistently reviewed.

The DCMSSC report and the government response do not provide quick fixes. Realistically, they cannot, given the issues raised and the apparent extent of the problems to be tackled. Both publications deliberately avoid any reference to the ongoing concussion related litigation, which has itself developed in the last 12 months to now include The Rugby Football League.

At the risk of crossing that line and entering into the issues in those claims, it seems to me that despite the absence of any clear ‘straight line’ of causation between head impacts, sub-concussive blows, concussion and later onset dementia / CTE / neurodegeneration, the overall expectation – in both the Committee’s report and now the government’s preferred coordinating role – is of continued development and improvement in player welfare. That is really important and very definitely to be welcomed. The hope is that it can be achieved without harming the essence of what makes sport attractive to players, spectators and society generally and without losing the core values that each sport provides to its aficionados.

We will take another look at this issue early in the New Year and hope to set out key dates from 2021 and an indicative timetable of developments we expect during 2022.


David Spencer, Partner and Head of Sport at BLM
david.spencer@blmlaw.com

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