In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Tuesday, June 28, 2011

Concussion in GAA

Although not, I grant, about rugby and law, it's unfortunately a live issue in other sports in Ireland, too. Specifically, in the Gaelic Athletic Association, with the news that a player,  is in a coma after a head injury received while playing Gaelic Football in San Francisco over the summer.

Concussion is a problem for all sports. Rugby is addressing that problem; the GAA may well need to follow suit. I realise that in this post, I run the risk of repeating what I've said elsewhere on this topic; it's a risk I'm happy to run, given the subject.

In any contact sport, players can get concussed. Accidents happen, even with the best will in the world, and everyone – and the Courts – accept that. But sports can’t be wilfully dangerous when there’s no sporting reason not to make the game safer. Sometimes, the laws of the sports in question get changed to protect players; so, rugby has changed the laws at scrums to make it safer, and hurlers now have to wear helmets.

Making a game safer doesn’t mean it has to be, or even can be, absolutely safe. Rugby is a collision sport, and inherently dangerous. A proper shoulder on the GAA pitch can stop a player dead, and hurling is not or the faint-hearted at the best of times. All are in the nature of the game, and players will get injured. The question then is – what happens when they get injured? What’s the legal position?

In England, it’s been held that if the sideline treatment is inadequate, then the governing body can be liable for the injuries caused by the lack of adequate treatment; it was the case of the boxer, Michael Watson, and the brain injuries caused to him by lack of proper medical treatment, that settled this. So, players are entitled to expect that when playing a game, that reasonable steps will be taken to make sure that they’ll receive reasonable treatment for injuries.

That doesn’t mean you have to have a neurologist at the side of every pitch. That’s just not realistic. But it does mean that injuries can’t just be ignored; and it means concussion can’t just be shrugged off as, “Sure, it’s only a knock, run it off, you’ll be grand.”

It doesn’t help that concussion isn’t seen as being a real injury. Studies in New Zealand rugby have shown the same problem of ignoring concussions. But concussion is a brain injury. You get concussed because your brain has been traumatised enough by an impact that it’s not functioning properly. That scary fact is one that needs to be faced up to.

Concussion kills. That’s not an exaggeration; research in South African rugby shows head and concussion injuries are the leading killer of players over the last decade. And it’s been clear since 2007 from research done in New Zealand rugby that proper sideline treatment makes a big, big difference to preventing concussion injuries becoming worse.

Rugby has, in the past weeks, finally got around to addressing this. It’s introduced new concussion management programs. The key to these is that they are simple, and allow players even at amateur club level to be assessed, quickly and accurately, using a pocket card – the SCAT card. This was first done in New Zealand, copied in South Africa, and the results have been dramatic. Coaches and referees have been trained how to use the SCAT card, carry it with them, can assess players who’re concussed and get them the proper treatment.

The surprise is that it took four years to make this change when it’s been known since 2007 what works.
The GAA’s problem is that the GAA’s own 2007 position document on concussion mentions the SCAT card, yet no efforts to introduce training for non-doctors in its use have been made.

This is so crucial because studies show that at training – where there are normally no doctors present – GAA players have the highest injury rate of any major sport in Ireland. 87% of inter-county hurlers receive head or facial injuries of some kind during their career; and if helmets don’t save American Footballers from concussion, then at least some of those hurling injuries will be concussions. Similar rates would be expected at lower levels.

Yet how many of those concussions of a wet training evening, with no doctor around, will be properly diagnosed and treated using the SCAT card?

So, there’s a clear problem of serious injuries – and concussion, being a brain injury, IS a serious injury – with a clear, simple and workable method of giving proper treatment to those injuries at all levels and at all times. Yet the GAA has not followed through on its own recommendations. And there really is no good reason why.

The IRB is introducing training for non-doctors in the use of the SCAT card this autumn. Some rugby unions already have it. The training programs are there, ready to be lifted, tweaked if necessary, and used to protect players. There really is no excuse for the GAA not to do just that, as fast as possible.

It would  protect both the games and the players; and that has to be what everyone wants.

Wednesday, June 15, 2011

Consistency In A World Gone Mad - Part 1.

The best way to start off this one is with some clips (with thanks to those on Gwlad who've put them together).

Sean O'Brien hits Yannick Nyanga in the HEC semi-final - not cited.

Gavin Henson hits Alex Moreno - banned for seven and a bit weeks on appeal.

Richard Yapp hits Mick O'Driscoll - yellow card, but no citing.

Paul O'Connell hits Justin Thomas - red card, banned for four weeks.

The offence in each of these is the same; striking an opponent under Law 10 (4). In three of the four, it was hitting a player holding the other player back off the ball.

The sentences - or, indeed, whether cited at all - are wildly at odds.

To make the point even clearer, you have the difference between the cases of Richie Rees of the Blues and Mark Cueto of Sale.

So, what to make of this? Is there any pattern at all? And what does this mean at law for players who are up before the disciplinary beak?

Consistency is important in any disciplinary system. If it's not consistent, it's arbitrary; and if it's arbitrary, it's unfair (I've dealt before with why a disciplinary system in rugby requires fair procedure). Consistency does not mean the same result in every case, though; one size fits all is also unfair, as it pays no attention to the individual case. So, what does consistency mean?

This is an issue that's come up a lot in Irish law over the past few years (I should enter a note here that I have been involved in some of those cases). The two competing elements can be seen in two cases, Fasakin, and Itaire. In Fasakin, the late O'Leary J. said.

In Itaire, McGovern J. said:

The synthesis between the two is a Supreme Court case called Atanasov. In essence; for fair procedure, outcomes will not be consistent, because as individuals vary, so will their case. But  fair procedure also requires what is considered in those individual cases and the way in which those cases are dealt with must be consistent.

So, all fine and dandy; but what does that mean in terms of citings?

If the same things are to be considered, and the same treatment given to each case, that certainly suggests that the threshold for a citing - whether a red card could be justified - should be the same in each case; and once that threshold is met, then the player should (indeed, must, for reasons I'll get to in Part II) be cited. Never forget, at a citing, the citing can be upheld, but no further action taken - as witness Jerry Collins' recent case. If the disciplinary hearing considers after hearing all the evidence that no further action should be taken, that's fair enough; but the same offence should still lead to the same citing once the threshold is passed. If one player is cited, when another player committing the same offence is not, that's inconsistent treatment; and the player cited has good reason to feel aggrieved.

There's no question - none - that striking can be punished with a red card. It happens, of course; I would go so far as to say every player has probably thrown a punch at some stage. But in each case a player takes his chances of being sent off when he does it, and knows it. So; a punch can be a red. Throw a punch and connect, it can be a red; which means it meets the citing criterion; which means consistency and fairness requires you should have to explain yourself in front of a hearing just as everyone else who throws a punch should.

Similarly, if and when it comes to sentencing, the same matters should be considered in the same way; whether aggravating or mitigating. The disciplinary regulation, Regulation 17, has a list of them; what is aggravating for one player should not be mitigating for another for the same offence.

To give a perfect example of this; for Alan Quinlan, being "old enough and experienced enough to have known better" was an aggravating factor; yet Schalk Burger having 50 caps was treated as being a mitigating factor for the same offence charged (and it is noticeable that after that, the IRB itself was moved to protest over inconsistency). That's as good an example of arbitrary inconsistency as could be asked for (and it's one which, I regret to say, has been repeated in the Cueto case).

As to what weight those mitigating or aggravating factors are given, that depends on the individual case; again, fair procedure.

So, it would certainly seem that in at least some of the clips above, consistency would have required that players be cited who weren't. What that inconsistency means for an individual player up before a hearing is for Part II.

Monday, June 13, 2011

Concussion - again.

Proof, if proof were needed, of why this is so serious an issue.

Berrick Barnes' career looks like it could well be over, due to his history of concussions and what would seem to be linked migraines, amnesia and nausea.

Barnes himself has been running a campaign for heavier padding in scrum-caps; unfortunately, the evidence so far is that they don't have any effect.

The lesson is clear; at all levels, the game needs proper assessment, proper treatment, and,  on the pitch, and end to the idea that anything above the line of the shoulders can be shrugged off as "There was nothing in that". It's too risky, and we can see why.

And, again, one has to ask - why has it taken so long for so many unions, and the IRB, to introduce proper concussion management procedures when the evidence has been there since 2007 that using SCAT cards works?

H/T to Green & Gold Rugby for highlighting this one.

Update; unfortunately - but probably wisely - it seems to have moved from "Berrick Barnes career could well be over" to "probably is" - he's now on an indefinite break from the game.

Oh dear...

I was looking up something on the IRFU website this morning when I noticed this pearl:

"Your use of this website and any dispute arising out of such use of the website is subject to the laws of England, Scotland and Wales."

Which, given that Scotland has a different legal system to England and Wales (which are one jurisdiction) isn't the sort of thing that fills one with confidence. And when that's the IRFU's take on simple matters like their own website, it's not really conducive to making one over-optimistic about fun things like cross-border tournaments like, ooooh, the Pro12 or HEC. You know, the ones the Irish provinces play in...

Tuesday, June 7, 2011

Concussion guidelines

Apologies for the lag, as it's been a bit busy of late. There's a lot to deal with, as a result.

First, and most recent, I want to touch on concussion. I was lecturing on this back in April, saying that when you looked at the way it's managed in the Boksmart and Rugbysmart programs, it was inexplicable how so potentially dangerous an injury seemed to be more or less ignored in this part of the world.

I'm glad to see the International Rugby Board would seem to agree. They've just introduced new concussion guidelines, more or less identical with those in the Boksmart program (the comment about duty of care is interesting, and it's one I'll hope to return to).

It's no wonder, and it's about time. Concussion kills; in the injuries tables on the Boksmart program, head and concussion injuries come up as one of the leading killers of rugby players at all levels. The evidence of how this proper side-line management helps manage concussion in rugby so much better has been there, properly researched, since at least 2007, and the RugbySmart concussion program since before this.

There remains another, perhaps more worrying mystery. The information and policies that would allow any rugby union to have proper concussion management practices have been there, ready to cut-and-paste, on the websites of at least two unions for a good few years now. Those policies don't require insanely high standards, or a neurologist at every pitch-side; but they're reasonable proper practice, such as having SCAT cards available to allow properly trained club officials to assess players and prevent them hurting themselves.

There was and is no reason why those policies should not have been introduced world-wide as soon as they came out - if not by the IRB, then at least by the individual unions aiming to protect their players.

But, despite it being necessary, reasonable and easy, they weren't. Which begs two questions; first, why not? Secondly; how many players have been injured as a result of this breach of duty by the unions?