With new and greater awareness of the effect of concussion in sport, the number of class actions being raised by former players in the UK against sporting bodies is on the rise.
This month, a law firm confirmed they would be issuing formal legal proceedings on behalf of a group of nearly 400 former rugby league, rugby union and football players, suffering from neurological impairments, against their respective governing bodies. The size of this group has grown by over 150 players in recent months.
It is estimated that the value of the claim raised by the 260 former professional rugby union players, against World Rugby, the Welsh Rugby Union, and the Rugby Football Union, could exceed £300 million.
The claim by former amateur rugby union players contains greater diversity. The claimants are both male and female and have played across a spectrum of elite, international and youth teams.
These proceedings allege a failure to take reasonable action to protect the players from serious brain injuries. Many of the former players involved have been diagnosed with Early Onset Dementia, Chronic Traumatic Encephalopathy, Epilepsy, Parkinson's Disease and Motor Neurone Disease, which they attribute to the effect of repeated blows to the head they suffered whilst playing their sport.
New class action mechanism in Scotland
Whilst these actions are to be raised in England, the new class action mechanism in Scotland means similar actions are likely to arise here.
The mechanism came into force in July 2020 and allows two or more people to raise proceedings together in the Court of Session if they have the same, similar or related claims. Raising class actions in Scotland will be attractive to many. For Claimants, bringing an action together shares the work and cost burden and lowers each individual's exposure to adverse expenses/costs awards. The increased value of the claim is also more enticing to litigation funders.
Who is at risk?
Given the ability to raise proceedings collectively, plus the increasing awareness around the science of concussion, we can expect to see the brain injury claims being raised collectively in Scotland, too. At present the legal proceedings raised in England are only directed against the respective sports' governing bodies, but it is possible claims could be raised against others organisations at various levels of these sports, for example tournament league organisers, clubs, local authorities, schools/colleges/universities, or even coaches.
All organisations responsible for contact sports should prioritise lowering the risk to players as far as reasonably possible.
Due to the increased awareness surrounding brain injuries, sporting governing bodies have been scrutinising and tightening their laws/rules. In June last year, World Rugby increased its minimum stand-down period after a player sustains a concussion to 12 days, up from 11. There are calls by some to raise this to 28 days. Similarly, guidelines issued by the leading football bodies limit professional footballers in England to 10 "higher force headers" a week. Any guidance or policies issued by sporting bodies should be carefully adhered to and consideration should be paid to any additional measures that may appear necessary.
With the new class action mechanism in force in Scotland, the importance of insurance against exposure to litigation is brought into keener focus. A response strategy should be developed, in case of litigation arising. It may be useful to pull together a record of insurance policies you hold and have held, and what timeframe they cover. Likewise, consider who would handle your response to any claim and who would deal with public relations in order to best protect your organisation's reputation.
If you do become aware of a claim or potential claim being made against you, you should take immediate legal advice.