World Rugby, the Rugby Football Union and the Welsh Rugby Union should settle their upcoming class action with a number of former players suffering from brain damage out of court, according to a leading lawyer.
Close on 200 ex-players, including former Wales internationals Ryan Jones and Alix Popham, have issued legal proceedings against the game's governing bodies this week over alleged negligence leading to their diagnoses of early onset dementia, probable CTE and other permanent injuries as the result of brain damage. This latest step paves the way for what is the biggest class action of its kind outside of the US to head to court.
However, Jonathan Compton, partner at DMH Stallard, believes that the sport's governing bodies should not allow that to happen, citing the fact that while they could well win in court, the optics of what he describes as a "pyrrhic victory" would not be worth it. He added that, in a relatively unique case such as this where the claimant and defendant each have a similar interest in improving the viability of the game long-term, there is an added flexibility in settling matters out of, rather than in, the courtoom.
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"The optics of it are not good," said Compton. "If I was advising them, I'd be saying we should settle this for any number of reasons, some of them legal, some of them optical.
"But most of all I don't want this going anywhere near a court because I want to settle this on my terms. The instruments open to the court are blunt and they can't introduce new rules.
"My advice to the employer - or indeed World Rugby in this case - were I representing them would be to settle. The reason being that even if you were to win, what you'll be faced with is a whole load of young men and women being reduced to wheelchairs and you'd be sat there saying it's not your fault.
"You're making money from the game, but you're not responsible for the people that get injured in it. Even if you win, I'd venture to suggest it's not a good look.
"And, as I mentioned, the instruments a court can used can be quite blunt. It can say there's been a breach of duty and instruct for compensation to be paid out, but what it can't do is say how it thinks the rules should be amended.
"From my own view, there's a conversation to be had between the governing bodies and the injured players about how the game can move forward. They may need to alter the very nature of the game through new rules.
"It's your duty to look after your staff and it's no different in rugby. I think World Rugby will have to think very carefully about this and how things move forward.
"They can have the conversations with players about settling the case and how things move forward in a broader sense or the courts will have that conversation for you and will simply impose their answer. I always advise my clients to possibly settle if you can.
"Once you're in the witness box and you're giving evidence, you're almost a passenger. There's almost nothing anyone can do to help you. But at the settlement stage, you can suggest solutions and things like that."
Crucially, while it is currently just a group of governing bodies facing action at the moment, it is not out of the question that clubs could one day face action as well. "The primary duty to provide a safe working environment is up to the employer so theoretically, the answer to the question of whether clubs could be involved at some point is yes," added Compton.
Despite an inability to reach a settlement between the pre-action claim being filed in December 2020 and the proceedings being issued this week, negotiations will likely still be going on behind closed doors in terms of potentially reaching a settlement - even if the matter is now in the hands of the court.
The chances of the players winning
However, should the action go to court as expected, the question is whether this class action, the biggest of its kind outside of the US, would have a chance of winning? Compton believes, on existing precedent, there's a good chance that the court could find in favour of the 185 former players.
In a case of negligence, the claimant - in this case the former rugby players - will have to prove that the governing bodies had a duty of care, there was a breach of that duty, that breach resulted in the claimant suffering a loss and that there is no defence to the claim. The third of those points, known as causation, is likely upon what this case will hinge.
"The question is being asked as to whether a group of rugby players drawn from various clubs and unions can successfully make a claim against their union and/or their employers," added Compton. "In my view, the answer is undoubtedly, yes."
In terms of existing legal precedent that could become relevant in the current case, Compton cited Watson versus the British Boxing Board of Control. In that case, former boxer Michael Watson brought a claim in negligence after being severely injured in a fight against Chris Eubank.
He successfully argued that there was a lack of adequate ringside medical facilities and that this caused his major brain damage. Crucially, despite the fact that the BBBC were not the organisers of the fight, the Court of Appeal held that they owed Watson a duty of care.
"After the case of Watson v the BBBC, the courts have shown themselves more willing to get involved where duty of care arises, as is the case in the workplace," Compton added. "The immediate answer to that is that the players aren't being employed by World Rugby or the various unions, but by the clubs, but the courts got around that in Watson by saying that if you have the power to make mandatory rules relating to medical care, you assume that duty of care.
"What the court held there is that if the British Boxing Board of Control have the power to introduce mandatory rules, you assume the duty of care. We've seen how World Rugby has altered the laws to make the game safer, so I don't think they'll defend it successfully on grounds of duty of care.
"Was the damage reasonably foreseeable? I think this situation can be dealt with swiftly. Two men running into each other at 10 miles an hour have an impact force of over half a ton.
"It seems very foreseeable that heads and necks will suffer injury. From there it is a short drive to obtain medical evidence that this type of injury will cause damage.
"What plays in my mind, though, is this: we now know that repeated blows to the head will cause damage to the brain. But the evidence as to when we knew this from a medical research point of view is a matter for the court to determine. Because the question of breach can only be decided by what was known at the time to the person owing the duty of care on a general level.
"Is there a duty of care? I think almost certainly in this instance the court will find there is. Has there been a breach of duty? That is a case for the defence."
As mentioned before, causation could well be what this case hinges on. In that regard, whatever historical documents are produced in court pertaining to the amount of medical knowledge available at the time - or indeed any documents or evidence that prove a correlation between repetitive head impacts and CTE - could prove crucial.
"Then there's causation - as a result of the breach, has the claimant suffered a loss. It's not enough to say they've suffered a loss, it has to be as a result of the breach of duty.
"The medical evidence will be key. Perhaps the biggest test the claimants may face is whether their injury was sustained on the pitch at a time when the defendant knew or ought to have known the likelihood of the injury.
"So we shall see what the evidence in the case of each claimant suggests and how the general state of medical knowledge was developing at the time the injuries were being sustained, assuming, of course, it can be ascertained when the damage was sustained.
"I come back to this initial point and say that World Rugby could win this and still be condemned in the eyes of public opinion."
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