The day of truth in rugby approaches and the worst-case scenario becomes evident

At first glance, last Friday seemed like a step forward in resolving the legal case that continues to cast a shadow over rugby.

It has been three years since brain injury legal action was launched against World Rugby, the Rugby Football Union and the Welsh Rugby Union, and several former players have told their harrowing stories.

Everything changed last week when reporting restrictions were lifted, leading to the release of information on more than 200 players, all involved in the case. More than 70 are Welsh and more than 30 have played international rugby for Wales. Get the latest Welsh rugby news by signing up to our newsletter here.

The black and white list of recognizable names makes it difficult to read, especially since not everyone appears to have expected their involvement to become public, adding another instructive layer to this confusing situation.

Since the initial action was launched, the situation has become increasingly tense. Limits were drawn, debates on the topic were often binary or reductionist, sometimes even toxic.

Look at the comments on any article on this topic over the last three years and you’ll probably see one of two responses. Some insist that the governing bodies are responsible, while others insist that the players knew what they were signing up for and are simply joining the bandwagon.

The latter is obviously a more indifferent view of the issue, but the reality is that neither is a statement of fact.

The first could change: management bodies could be held accountable before the courts. Of course, if it ever gets to that stage.

Last Friday’s hearing at the Royal Courts of Justice exposed more than 200 names in black and white for public use. But in terms of figuring all that out, we’re no closer yet.

Any hope of moving beyond a case management hearing was dashed last week due to a lack of complete medical records beyond self-reported symptoms.

“If these medical reports are not properly based on medical records and individual records, we will be in a very difficult situation,” said Master Cook, who also criticized both sides for “flying like ships in the night” over the lack of communication. and cooperation.

“I’m not sure why Friday went the way it did,” said Jonathan Compton, legal expert and partner at DMH Stallard. “It should have been clear to Susan Rodwell (K Town plaintiff) and Michael Kent (K Town defendant) well before Friday that this case was not ready to be heard by Master Cook in connection with the injunction collective action under the Rules of Civil Procedure. . .

“Someone had to foot the bill for all this work, and it’s not cheap. There are 295 players and they must select a representative group. This is a problem. They probably knew for a long time that they weren’t ready. That’s why Master Cook changed it to April.”

This will be the third court hearing. All of this points to the fact that it will last even longer if it has to go to the end.

The very nature of this process – and probably what will define it in the end – is its performance in the court of public opinion. It’s all a matter of optics.

We may have another year or two, maybe more, in this situation, with all the grams and punctuation, before it actually goes to trial. Or even if you go to court.

Compton previously told WalesOnline that he believed the sport’s governing bodies should not allow the sport to go to court, citing the fact that although they could win, the optics of what he describes as a “Pyrrhic victory” would not be worth it. . In a case like this, which can be reductively described as a sport against the players, the agreement offers more flexibility in a situation where both parties aim for the long-term viability of the game.

“I don’t tell anyone how to do business, but generally when you deal with your customers, you encourage them to reach an agreement whenever possible,” Compton said. “Because in the negotiation process, lawyers and parties control the situation to a certain extent.

“They can decide what to agree to and what not to agree to. They can agree on things that are outside the court’s jurisdiction, such as compensation. If you’re in court and a judge asks you, that’s it. It’s up to the judge to decide who will win.

“You are a passenger. That’s why we advise you to sit down as often as possible. Being around the table and if you can crush it, it will hurt because you will have to give up something, it is much more pleasurable than being in court. .

“I strongly suspect that (defendants’) quality controls behind the scenes are saying we can score certain points. But it remains to be seen whether, or even if, this will bear fruit in court.

“I would suggest a peace agreement; this is the best option. This will be a problem as it will be a lot of money. Often times, as the defendant’s attorney, you may want to cast as much doubt on the plaintiff as possible and have him accept less than the court may award.

“A little less money now, without the pain and wait of going to court, may be a more attractive proposition for someone with a degenerative brain injury than five years from now, or when the case goes to trial.”

this is an important point. Government bodies must be confident of winning in court. After all, it can be difficult for plaintiffs to prove they are liable.

But obviously finances are also a factor. Sports, in general, are not awash in money right now. Fear of substantial compensation may be a factor regardless of how everything plays out in court.

“This is a cruel game, the law. “These are terrible decisions that have to be made and they attract attention in a case like this, where people’s quality of life is at stake.”

If a settlement is the best case scenario, this trip to court probably seems like the worst case scenario.

The plaintiffs make a series of allegations in their lawsuit. Among them, they allege that rugby authorities did not take adequate measures when the game was professionalized to respond to the disregard for player safety and brain health. Also cited is the alleged failure to take adequate measures to inform, educate or warn plaintiffs about the risks of permanent brain damage.

Former English prostitute Brian Moore, who also worked as a personal injury lawyer, eloquently explained that plaintiffs can have difficulty proving liability.

Writing in the Telegraph, he highlights that the biggest obstacle will be proving causality. Plaintiffs will have to prove that repeated head trauma caused their early-onset dementia and probable CTE, and that the government agencies’ negligence had a material effect on their outcome. He says that correlation does not necessarily mean causation.

“Early-onset dementia is also one of the diagnoses considered relevant for some candidates, but concussion is just one of 12 possible causes identified,” says Moore. “Saying there is a correlation between dementia praecox and concussions in players is not enough to determine legal liability.

“Establishing concussion as the cause requires evidence that none of the others apply or a conclusive reason to conclude that concussion is the primary cause.”

But perhaps that is why it is better to find a middle ground, however difficult it may seem now, given that both sides are entrenched in their current positions.

When World Rugby told players in 2021 that head injuries were just one of 12 variable factors, which also included depression, alcohol consumption and unhealthy diet, that could explain deteriorating brain health, some saw it as a sort of insulting people you see. accept new conditions.

Now imagine that these factors are considered judicially. A former player questioned by a tough lawyer about whether it was actually alcohol or drugs, not a rugby career, that put them in their current position.

Men and women who gave their bodies and, cruelly, their minds to this sport, are now being torn apart by the game’s guardians.

It’s a pretty bleak outlook. Not only for those who participate in the game, but also for those who are unsure whether they or their children should play sports.

“These guys should go around the table and avoid the rude spectacle of a bunch of people who, by the very nature of their condition, will not be in the best position to be questioned,” Compton added. “Someone like Michael Kent is at the top of his game.

“I dare say the union lawyers could demand some points during the interrogation. After all, there are many athletes of approximately the same age who have approximately the same conditions.

“Conditions that are uncommon in the relevant age groups and therefore represent a statistical anomaly. They all played the same influence game and developed the same symptoms. In terms of probabilities, it seems very unlikely that they will lose the case based on the medical evidence.

“From the standpoint of the overall development of the case, my money is still, regardless of what the defendant’s lawyers think, that the players will win their cases.”

“I think there comes a point where correlation becomes causation. When all these people of the same age have roughly the same conditions in an age range that is not common for those conditions, and they are all playing the same game that involves blows and head injuries.

“And all of these conditions are caused by impacts and head injuries. I think that on the balance of probabilities (what we are talking about here is, beyond a reasonable doubt, a criminal law), we are simply saying that all these people are suffering the same injuries.

“What is the possible reason for this? I think it all comes down to this question. The defendant, if he wishes, may raise reasonable questions and request the medical records to which he is entitled. You can see some points. But I think we have to be very careful and see the tree behind the tree.”

“Listen to the cases to learn where the responsibility lies and what we need to resolve,” says Moore. It’s a fair sentiment, but can rugby face the consequences?

If we get to this point where the sport and the players are still at odds, the court of public opinion may have already decided who is responsible.

Of course there are no winners in this. Former players were those who suffered least.