Rugby players’ brain injury battle reaches watershed moment in court

It has been 10 years since I first spoke to Peter Robinson about the death of his young son Ben, almost to the day. Ben had died of brain swelling after being hit in the head twice in short succession during a school rugby game on 29 January 2011. Peter’s grief was raw, but he wanted to talk because he had a story he needed to tell. It was a story about Ben and what happened to him that day, but it was about more than that, too. It was a story about a sport Peter loved, but which he believed was failing to protect its players from the risks of brain injury.

Peter told me about the conversations he had had with administrators and politicians, he shared anecdotes and emails, showed me extracts and printouts from medical journals and websites. He told me about the sport’s inadequate education programmes and medical procedures, the five-minute pitch-side concussion assessment they were using in the professional game. He described a culture, one I recognised, in which players were lauded for making big hits and lionised for playing on after being wounded. In those days, people still argued that scrum caps were adequate protection, and described brain injuries as “head knocks” that could be “run off”.

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Peter was determined that the game had to change. He wasn’t the only one. Dr Barry O’Driscoll had just resigned from World Rugby’s medical advisory board in protest against the pitch-side concussion assessment protocol, which gave medics five minutes to make a diagnosis. Dr James Robson, who had participated in six British & Irish Lions tours, also spoke out. So did the renowned neuropathologist Dr Willie Stewart. At the Daily Mail, the journalist Sam Peters was working on a series of articles investigating these issues. And in Westminster, Chris Bryant, Labour MP for Rhondda, was starting to ask questions, too.

There were others, but not as many as those who said that they had got it wrong, that it was all just scaremongering. Men like the head coach who told me, angrily, that the group were going to kill the sport, or the ex-player who insisted that they wanted to make the game soft, or the doctor who announced, at one medical conference, that the risks were being hugely overblown, or the administrators who repeated over and over again that player welfare was paramount, and that the sport was simply following the science.

For years, rugby’s concussion policy was shaped by the Concussion In Sport Group, who produced a consensus document every four years summing up latest research on the issue. Here, between Robinson, Stewart, O’Driscoll and the rest, were the beginnings of an alternative consensus, one that agreed, in O’Driscoll’s words, the sport had “got this one very, very wrong”. That same year, the NFL had reached a $765m settlement with a group of 4,500 former players who claimed it had misled them over the long-term dangers of head injuries. O’Driscoll was convinced rugby would end up facing similar claims.

The former hooker Steve Thompson has no memory of England’s triumphant campaign at the Rugby World Cup in 2003.
The former hooker Steve Thompson has no memory of England’s triumphant campaign at the Rugby World Cup in 2003. Photograph: Christopher Thomond/The Guardian

He was right. In December 2020, the Guardian broke the news that a group of former professional players were bringing legal action against the game’s authorities because they had been diagnosed with probable chronic traumatic encephalopathy and, in some cases, early onset dementia. The first three to go public were the England internationals Steve Thompson and Michael Lipman, and the Wales international Alix Popham. The Guardian interviewed all three and then, in the months afterwards, many more besides, such as Dan Scarbrough, Paul Pook, Alex Abbey, as well as the family of Norman Hadley.

Their pain, their suffering, has always seemed to me to be an indisputable truth. The links between head trauma and CTE have been known about for a lot longer than people sometimes let on, but it is still a complicated and contested science. But when I close my eyes, I can still hear Thompson talking about how he can’t remember winning the World Cup, Lipman describing how he struggles to control his bladder at night, Popham telling me about the time he blacked out while riding his bike, and the issues seem very black and white.

There are 268 players involved in the action. They don’t all have the same diagnoses, or the same symptoms, but they all have their own stories.

At the high court on Friday a judge will decide whether they can go ahead with their group legal order, and, if they can, which test cases will be put forward for trial. The proceedings are still in the pre-action phase, and there is the opportunity for the disputing parties to reach an early settlement to avoid a trial.

But the defendants are not thought to be inclined to settle at this point. The case is very different from the one involving the NFL players, who did settle. The accusation there was that the authorities had wilfully misled them, whereas the allegation in rugby is that they were negligent in their efforts to mitigate them.

Mark Telea tackles South Africa’s Damian Willemse.
Mark Telea (right) tackles Damian Willemse. Head injury assessments (HIAs) are part of World Rugby’s attempts to combat the risks of head trauma. Photograph: Pavel Golovkin/AP

A key part of the allegations is that World Rugby were over-reliant on the advice of CISG, and in particular its co-chair Dr Paul McCrory. In 2022, after an investigation by Retraction Watch and a series of articles in the Guardian, McCrory resigned from the group after being exposed as a serial plagiarist. CISG continue, but their credibility has been damaged. They do not have a monopoly on authority any more.

Which is just one way in which the culture of the game has changed in the decade since I first met Robinson. For years, the conversation was stuck in a circular argument about which side was right, and whether more research was needed before the link between head trauma and CTE could be adopted as a mainstream position.

The legal case, and the McCrory scandal that followed, have hurried that conversation along. This year, in what felt like a landmark achievement for Robinson, the UK government finally issued new Concussion Guidelines for Grassroots Sport, which included ideas he had been advocating a decade.

The authorities seem finally to be acting with appropriate urgency. Which doesn’t mean they are getting everything right, far from it, just that they are no longer insisting that there’s nothing much wrong.

They are pinning a lot on instrumented mouth guards, which will help measure the impacts the players are experiencing, and there are hopes too, for new pitchside diagnostic tools, and even experimental treatments. World Rugby says it wants to address the cause as well as the symptoms. Which sounds good. But it is hard to balance the financial imperatives to play more frequently with the medical imperative to give players more rest.

The unavoidable truth is that rugby is a collision sport. It will be possible to do more to minimise the risk of head trauma, but not to eliminate it, especially the repeated small blows involved in rucking and tackling.

The decision to play the game then becomes a question of weighing risk and reward. The sport will survive these legal proceedings, whichever way they are resolved. But long after they are over, players, and more importantly players’ parents, will still have to ask themselves whether the game is worth it. And the answer to that one could be fatal.