Concussion in rugby union: former players apply for group litigation order

In December 2020, legal action by 9 former professional rugby union players was initiated against the Rugby Football Union, the Welsh Rugby Union and World Rugby. The number of players now listed in the action at the time of writing totals almost 300, with several high-profile names recently joining the action.

In November 2023, the High Court heard an application made by the players’ lawyers seeking a Group Litigation Order. The outcome of the application is expected in the coming months and if successful, the claims against the RFU, WRU and World Rugby would be managed together as part of a group action. The players’ lawyers hope this would increase the chances of proceeding to trial sooner, potentially as early as sometime in 2025.

Rugby Concussion Claim

A pre-action letter of claim was sent on behalf of 9 players at the start of the claim. The players’ argument was put forward on the basis that the governing bodies failed to adequately protect them from the risks associated with concussion, which has resulted in players being diagnosed with various neurological disorders such as early-onset dementia and probable chronic traumatic encephalopathy (“CTE”) from repeated concussions. In summary, players are alleging that the governing bodies failed to put in place reasonable measures to protect their health following concussions suffered playing the game and in doing so, breached their duty of care to the players. Ian Gough, former Wales second row, recently described the lack of measures in place and adhered to during his career, including when he suffered a concussion in 1999:

“There was no protocol and no testing at that point, and nothing we would go through to say one way or the other.”

The number of players listed in the action at the time of writing now totals almost 300 and includes former Wales and Lions players Ryan Jones, Colin Charvis and Gavin Henson. In November 2023, the High Court heard an application by the players’ lawyers for a Group Litigation Order to combine all of the players’ claims collectively into a group action. The decision of the Hight Court is likely to be made in the coming months and if successful, the claims against the WRU, RFU and World Rugby could be managed together as part of a group action.

This is, unfortunately, not the first time that group litigation surrounding the issue of former players suffering with CTE in professional sport has been in the news. In 2016, an Appeals Court in the US upheld a $ 1 billion settlement in a lawsuit brought by former NFL players against the National Football League (“NFL”). Around 5,000 former players were involved in the lawsuit that alleged the NFL hid the dangers of repeated head trauma.

Rugby Concussion Protocol

Guidance issued by World Rugby confirms that any player with a concussion or a suspected concussion should be immediately removed from training or play with medical assessment and monitoring essential. At an amateur level, if a player has a confirmed concussion, a minimum physical rest period of one week (including an initial 24 hours of complete rest) is required for adults before commencing a ’Graduated Return To Play’ (GRTP) programme.

The reason the protocol is in place is that when a player suffers a second concussion before the initial concussion has healed they can develop neurological disorders. Therefore, those responsible for a player’s safety owe a duty of care to avoid multiple concussions. A harrowing example of this occurred when 14-year-old schoolboy, Ben Robinson from Carrickfergus, died from second impact syndrome after returning to the field when still concussed. The family brought a claim against five different defendants in negligence including the school, the coach and the referee for breaching their duty of care. An article published by the New York Times titled: “How a Boy’s Concussion Death Changed British Sports” detailed the family’s search for answers and the subsequent changes in the concussion protocol to protect players at an amateur level.

The protocol in the professional game has also required change over the years although it has, however, taken time for this guidance to be put in place. The question therefore remains, whether the game’s governing bodies breached their duty of care to professional players before the now-established guidance was put in place.

What do the former players need to prove to win the case?

For the former players’ claim to succeed, they must prove that the Defendants:

(i)             owed a duty of care;

(ii)            breached that duty of care; and

(iii)          that the breach of duty caused the claimant to suffer loss.

The former players are alleging that the governing bodies breached their duty of care, which exposed the players to concussion injuries leading to disorders such as motor neurone disease, early onset dementia and CTE.

If successful, the former players will recover damages for their losses. The amount of damages, more widely referred to as compensation, will depend largely upon the value of the future care the players require as a result of the conditions they are now suffering from.

One thing is for certain, the issues surrounding concussion in sport and the spotlight on this case will continue for some time. If the High Court decides to group the claims together in the coming months, the overall decision and outcome of this case could have far-reaching implications on professional sport. We have already seen a similar action being pursued by a group of former rugby league players.

We will be following this case closely and providing legal updates throughout.

Our Team

Our Injury Dispute Resolution team is experienced in dealing with a wide range of injury-related litigation, including sport-related claims.

We defend personal injury claims arising out of sporting activities on behalf of public bodies. We also act for professional athletes who have suffered negligent medical treatment that cut their playing careers short.

If you would like to discuss a sports injury claim, please call us for a free consultation at 02920 391703 or contact Jon James by email at jon.james@geldards.com.