10 years ago, Paul O’Connell, playing for Munster, takes a blow to the head; he visibly loses consciousness for several seconds. The team doctor sprints on and attends O’Connell, the doctor seemingly tries to lead O’Connell off the pitch. Excuse me? Paul O’Connell being led off the pitch? O’Connell shrugs off the team doctors concerns and continues to put in his usual inspiring shift. Thankfully O’Connell plays the rest of the game without any issue. However the question arises: If O’Connell had collapsed during the game, or had a hemorrhage that night, who would be legally liable?
Was the team doctor meant to physically pull O’Connell off the pitch? No easy feat I must add. O’Connell himself? He was concussed, how could he be trusted to make that decision. The referee? Surely he has enough to do marshaling the game, so who is responsible for player welfare? The answer is that this is a very grey area.
Fast forward ten years; Conor Murray, playing for Munster, takes a blow to the head, not a particularly nasty one. He doesn’t appear to lose consciousness, however this time the doctor runs on, shouts something in Murray’s ear and they both sprint off the pitch for a head impact assessment (HIA). So what has changed? This cynic would say that it is fear of legal action and not increased player welfare that has made an impact. Warning lights went off in 2013 when the NFL settled for $765 million following research from Dr Bennett Omalu and a lawsuit from former players. He established that repeated blows to the head resulted in early onset of dementia, with many former players committing suicide. He established a disease called chronic traumatic encephalopathy (CTE), which manifested itself in former players, but which only could be tested after the player had died.
It is my contention that the game of Rugby fears this kind of scenario occurring; it remains to be seen if we will see this kind of situation coming to surface in the coming years., one would hope not. However, it can also be argued that the HIA protocols in place are inadequate. Just last month Toulouse were playing La Rochelle in a top 14 encounter. Alexis Palisson, a decent sized back, attempted a tackle but instead received a belly full of Fijian Levani Botia. Palisson tried to get up and get back into the fray, the only problem being that he couldn’t stand, and then he fell into the touch judge. He was quite visibly concussed. Now any reasonable person would say that Palisson must be removed from play for his own safety.
He went off for a HIA after 13 minutes and returned after 20 minutes. Therefore, he must have satisfied the medical staff, which is to say, he passed a series of cognitive, memory and balance tests. It’s fair to say that this kind of scenario is not acceptable at the highest level of rugby, as it sets an extremely poor example for younger players. The question arises, do we need increased regulation in the area of sport? Do we need a higher body who is not involved in the actual sport to set out guidelines regarding things like head impact assessments and concussion? Do we need the legal system to step in and address the obvious shortcomings? The UCC sports law clinic will be addressing such issues at an event which will take place at the end of March on UCC’s campus. This event will cover a range of topics related to increased regulation in sport and is a free, open event. It will be a valuable opportunity to meet members of the clinic, especially for clubs who may need the clinic to give information pro bono in the future.