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Banging Heads Together 3: One rule for one, another for everybody else

Our previous two articles have touched on the dangers that CTE poses and where the liability could lie with clubs and governing bodies. This final instalment will question where liability on a player vs. player basis could come into play.

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If we compare two incidents (one from the professional ranks and one from the amateur) with the same facts the outcomes are very different. Gloucester prop Nick Wood, just 73 seconds into the recent game against Saracens, stamped twice onto the face of Jacques Burger. Wood received a red card and a likely ban of 9 weeks from the RFU’s disciplinary panel. Rhys Garfield playing in the amateur Welsh leagues was jailed for 15 months for stamping on an opponent’s head back in 2006.

Just last year an amateur rugby player Jack Weston was jailed for six months after he punched an opponent so hard during an on-pitch row over a tackle that he broke his jaw.   Contrast these facts with Leicester’s Manu Tuilagi who, a season earlier, violently assaulted former Northampton Saints winger Chris Ashton with a flurry of punches and was subsequently banned from all competitions for 5 weeks.

The RFU’s disciplinary officer Judge Jeff Blackett said at the time: “This sort of incident is very damaging to the image of the game and there is no place for this type of offending on the rugby pitch. Had it occurred in the high street an offender would have been prosecuted in the criminal courts.”

This statement raises the question as to why so few players have been prosecuted outside the laws governing their particular sport. The 44 days spent by Duncan Ferguson in Barlinnie prison in 1995 for headbutting Raith Rovers defender Jock McStay is one of the very few instances where an on-field incident has resulted in a criminal conviction.

Criminal proceedings are generally reserved for the most serious situations as discussed above. The law is more commonly involved in civil claims where an action is brought by one player against another for negligence. In 2009 Everton striker Victor Anichebe settled out of court for a six-figure settlement in damages after instigating legal action over a tackle from Kevin Nolan that left Anichebe unable to play for 11 months.

The latin phrase Volenti non fit injuria means ‘no wrong is done who consents’. Therefore if you consent to the possibility of injury and you are injured then you cannot claim you have been wronged. This is a complete defence for a claim for negligence. So should the laws of the land be left on the touchline? Should consideration be given to the importance of protecting players from serious injury balanced against the reasonableness of finding another player liable? The case law surrounding these instances tells us that violent acts will trump an injured party’s consent. Where there is difficulty in application is across the spectrum of sports. What players will consent to in boxing, cage fighting and rugby is far greater than what players will consent to when they take to the field for a football match or game of cricket.

If you have any issues relating to injuries suffered whilst playing sport which fall outside the laws of the game then why not get in contact with our specialists, who can give you the very best advice available.

Andy Boyde – Sports Consultant

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Banging Heads Together 2: CTE, the hidden killer

In our previous blog “Banging Heads Together” we discussed the discovery of the brain disease Chronic Traumatic Encephalopathy (CTE) in a former rugby union player with a further 10 potential cases coming to light.

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CTE is a degenerative and incurable disease that compromises neural activity and is linked to memory loss, depression and dementia. The presence of CTE in America Footballers was brought into the headlines following the suicides of at least six NFL players since 2011.

The stark reality potentially linking CTE with the suicides of these athletes can be seen in the actual suicide of former Chicago Bears player Dave Duerson. The double Super Bowl winner retired from the league in 1993, refreshed his economics degree with a business course at Harvard and entered the food business, purchasing three McDonald’s franchises in Louisville, Kentucky, before setting up his own business, Duerson Foods, supplying sausages to chains.

But from around 2005 (over 10 years after retirement from the NFL) Duerson’s life began to change. His severe headaches increased in frequency whilst the profitability of his business was on the slide. His marriage broke down and his debts piled up. On 17 February 2011, Duerson took his own life. He had placed his NFL Man of the Year trophy, awarded in 1987, on a table beside the spot at which he fell, along with a note that read; “Please, see that my brain is given to the NFL’s brain bank”. The request might have been deemed an anomaly had it not married up with the unusual method of Duerson’s suicide. He shot himself in the heart.

Dr Robert Stern, a co-director of the Boston University research group (home of the NFL ‘brain bank’) cautioned that CTE cannot explain every action a sufferer will take; “When it comes to suicide and CTE it is possible that in some individuals the combination of CTE-related symptoms of poor impulse control, depression and cognitive impairment may indeed lead to suicide…however we can never clearly point to any cause-and-effect relationship in any one case.”

The scariest part of CTE is that the mild and moderate cases do not show up on CT scans or other imaging. The condition in such cases can only be definitively diagnosed by an autopsy.

So where does that leave us with cases of liability? The NFL has settled out of court following mediation with over 4,500 former players. Clubs will be vicariously liable for their players unless they can prove the player was carrying out a personal vendetta unconnected to the employment relationship. The ‘Bountygate’ scandal was quite the opposite. A programme run by former New Orleans Saints defensive coordinator Gregg Williams, in which defenders paid into a kitty and received cash rewards for injuring opposing players: $1,000 if an opponent was carted off the field; $1,500 if he was knocked out of the game altogether; amounts doubling and tripling in the playoffs. With such obvious individual intent (albeit actively encouraged by the club’s staff) will we seen player v player lawsuits?

September this year saw Gareth Dyas and Steven Lawrie plead guilty to assault occasioning bodily harm in a game between Kippax Knights and Nevison Leap. Former Wakefield Wildcats and Castleford Tigers player Christopher Hall sustained life-changing injuries including a blood clot on the brain. Dyas and Lawrie have paid £500 and £2,000 in compensation respectively but will they be liable for further costs if Hall goes on to suffer at the hands of CTE or other related brain injuries?

Andy Boyde – Sports Consultant

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The Pitfalls of Celebrity Procrastination & The Importance of Having a Will

It is common knowledge that Amy Winehouse, Jimi Hendrix and Bob Marley were successful musicians that were taken from the world too young. Perhaps what you didn’t know, that all three had in common, was that all three celebrities (the oldest being Bob Marley at 36) passed away without making a Will.

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Surely, given the millions of pounds that these celebrities had made during their short lives you would think that creating a Will to ensure that their millions were left to only their nearest and dearest would be at the forefront of their minds? It appears not.

Relatives of the above celebrities have had to endure lengthy legal battles in relation to their loved ones estate. Amy Winehouse’s estate was valued at £2,944,554, or $4.66 million following the deduction of taxes and debts. This was ultimately received by Amy’s parents Mitch and Janis. This may be what Amy would have wanted, but there is no way of ever knowing as she failed to make a Will. It was said that Amy was still in love and on good terms with her ex-husband, despite their divorce. Had she had a Will, she may still have left something to him. However, the rules of intestacy prevent Blake Fielder-Civil from receiving anything as Amy’s wishes were not written in a Will.

The estates of Jimi Hendrix and Bob Marley were also subject to the rules of intestacy as both iconic performers failed to make a Will. Despite their deaths being some time ago, their estates continue to generate money. Therefore, new cases regarding their estates can arise at anytime. Astonishingly, even though he was a lawyer himself – Abraham Lincoln died intestate. He failed to make a Will that distributed his considerably large estate, instead it was simply divided 3 ways between his wife and children.

These stories highlight the importance of having a Will. Dealing with the death of a close friend or relative is hard enough – without family feuds and arguments to contend with as well.  If a Will is not made a person is classed as dying intestate. Therefore, rules of law which consist of a hierarchy of family members detailing who gets what and how much comes into practice. This means that none of the deceased’s wishes can be considered. The thought of making a Will may seem costly and intimidating; in reality it is a simple process that can be done by a qualified probate solicitor. It prevents your loved ones agonising over distributing your property when you are gone. The only work required of you is to tell the solicitor your wishes and who gets what. It’s that easy.

Andy Boyde – Sport Consultant

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Banging Heads Together – Concussion is giving the NFL & RFU a real headache

“The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs injuries were caused by football.”

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This was the press release following the announcement that the National Football League (NFL) would be paying out $765 million to over 4,500 former players following mediation in the Concussion lawsuit. Private discussions took place in front of mediator Layn Phillips last month in the US.

The deal makes it clear that despite making these payments, the NFL are not accepting liability or admitting that the claimants’ injuries were caused by football. The NFL has been able to sweep the allegations under the carpet without formally conceding any guilt. They have also avoided the airing of any private documents that might have emerged in an open court case illustrating what the NFL may have known about concussion-linked brain problems and more importantly, when.

The case against the NFL alleged that it had wilfully misled its players over the long-term impact of repeated brain traumas. As recently as January 2010 the co-chair of the Mild Traumatic Brain Injury (MTBI) committee Dr Ira Casson, contended that:

“There is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football will result in long-term brain damage.”

Pioneering research on American Footballers published last year by Boston University demonstrated a clear link between repeated concussions and Chronic Traumatic Encephalopathy (CTE), a progressive degenerative disease similar to Alzheimer’s in its symptoms – memory loss, irritability, mood changes, dementia and depression. The research revealed that CTE had been found in 30 former NFL players, who, before they died, had shown symptoms similar to those found in boxers suffering from ‘punch-drunk’ syndrome.

The closest sport in the UK to our neighbours across the pond is rugby union. Concussion is the most common injury suffered, with statistics showing one player is concussed in every five Premiership matches. The size and athleticism of players now is considerably greater than when the game turned professional in 1995. The frequency and severity of the contact has increased accordingly.

The growing fear now is that concussed players are being allowed to stay on the field or return to the field whilst showing obvious signs of concussion. This was no more apparent than in the final Lions test where Australia’s George Smith came off second best in a collision with Richard Hibbard, had a brief spell on the sidelines and then returned to the action. Common sense prevailed and Smith was withdrawn from the game for good before half time. In the short term Smith will have experienced a brief loss of consciousness, however the unknown long term consequences to the player’s welfare is a much greater concern.

In a comparable quote to that of Dr Ira Casson, Dr Simon Kemp (RFU Head of Sports Medicine) is quoted recently:

“We understand that there is no proven causal relationship between head injuries sustained while playing rugby union and the reported cases of CTE and early onset dementia.”

Last month, Dr Willie Stewart discovered the first evidence of CTE in a former rugby union player. Since this case came to light a further 10 potential cases have been presented to the Glasgow neuropathologist.

The question now is what impact will Dr Stewart’s research have for the game’s governing body? Will we see a raft of former players come together to issue proceedings against the RFU like in the US or will the RFU take greater steps to educate players about the risks they face by playing on with concussion like the NFL has been forced to do?

Andy Boyde – Sports Consultant

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