Concussion - After-Effects

A very harrowing article in today's Guardian about the effect of repeated concussions on an American Football player.


Now, it can fairly be pointed out that NFL players use their heads as weapons, and are trained to do just that. Even helmets won't stop injuries there. But it has to give you pause when you think about the effect of repeated concussions being so devastating. 


The last few lines of the article are particularly worrying.


"In Duerson's heyday, she recalls, if a player took a knock, the coach would hold up two fingers and say "how many can you count?", the player would say "three" and the coach would send them back on to the field.

"They treated it like a joke," Alicia says. "But that wasn't a joke."

Now, contrast that with the words of referee George Clancy to the physios dealing with England player Chris Ashton when he was concussed playing against the Springboks last November:

"He's nearly asleep. He's slurring his words. Make a reasonable decision now."

And yet, Ashton stayed on, and played on; he's said himself since that he remembers nothing about the game, and it wasn't worth it. He's right.

And let's not forget, this happened in 2010, despite the evidence having been there since 2007 from the NZ study about the use of SCAT cards for concussions; and yet nothing was done until June this year.

This may well be an issue for more than just NFL.

Only to prevent manslaughter?

I was talking in a recent post about the reluctance of the Irish courts to get involved in litigating sports disputes. The approach taken is a bit like the comment of an early referee not just of rugby, but at Rugby, that he had never intervened in a game as a referee except to prevent manslaughter (the referee who's supposed to have said that, Willam Temple, ended up Archbishop of Canterbury; muscular Christianity, I suppose...).

Pretty much right on cue, a judgement appeared on the (excellent) Irish Courts website confirming that view. Rather aptly, it's about a tug of war.

The case is Conway v. Irish Tug of War Association & Others. The others included the International Tug of War Association. By the time the case had come to court, the Irish Association had settled, and only the International Association. The case was about what should, or should not, have been done about a claim a team at a competition in Killarney were wearing illegal footwear. The Plaintiff took issue with the decision taken by the organisers; her club were okay with it, and went with the penalties imposed on them. There's a fair bit of technical legal stuff (which you can safely skim if you're a lay person reading the judgement). The pieces of relevance from a sporting perspective start from about 7.3 on.

The judge, Laffoy. J, looked at the Modahl decision I mentioned in the other post. Now, the line of cases following on from Modahl don't seem to have been mentioned to the judge, which may have queered her view of it; she side-stepped it, in large part. Moreover, this claim was based on tort, not contract, which was the point in Modahl.

However, it's worth noting that she accepted that she had the power to intervene; just that in this case, where on the facts it was pointless, she refused to and struck out the case.

So, it looks like the Irish courts are still at the position in Coughlan v. FAI that I mentioned in that post here, perhaps a little further on. Modahl may be up for grabs in Irish law, and I suspect a properly-argued case with the line of cases following on from it might well bed it properly. But, while the Courts here might hate intervening, it does seem to be accepted that they can, and sometimes should do so.

So, if the hearing is unfair enough to be on the manslaughter level, even a judicial referee might intervene. Of course, what would make the Courts reach for the whistle is the real question.

We'll see; pre-season 2011-12 has started, and there's a lot of rugby ahead of us until the end of May next year.

Red card offence = ?

Something that came to mind following a discussion this morning about citing.


Citings happen under IRB Regulation 17. For a citing, the Citing Commissioner has to be satisfied that the offence in question is one for which a player could be sent off  - a red card offence (it's Regulation 17.6.2 (a), if you want to check it up; page 3 of the PDF link above). 


In quite a few recent citings, the player cited has admitted the offence, but said it didn't merit a red card. In some cases - Jerry Collins' recent one, for example - that's been accepted (by a majority in Collins' case).


The problem is, there doesn't seem to be any definition at all in the Laws as to what is or is not an offence that merits a red card. Law 10 (5), which is the one dealing with sanctions for foul, illegal or dangerous play, is very much along the lines of, "Your call, ref, whatever you're having yourself." The only one at all seems to be the mandatory requirement that anyone committing the same offence for which they have been sin-binned must be sent off in Law 10 (5) (b). And, as anyone who watches the game will agree, that one's ducked all the time.


So, you have a central part of how citing is supposed to work - and it's entirely subjective.


It's a bit like the famous line from the American Supreme Court Justice, Potter Stewart, on obscenity in a case called Nicobellis v. Ohio: 


I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it...


If only it were that simple in rugby. Or that precise.

Consistency in a World Gone Mad - Part II

So, to pick up this thread again - let's suppose you're a player, who's aggrieved at an inconsistent disciplinary hearing; you've been cited for something in a match when someone else, who did the exact same in the same incident, hasn't. That inconsistency is, you're saying, such that you're getting an unfair hearing.

What can you do about this, or, indeed, any unfair disciplinary hearing?

Good question. The answer may well depend on whether you're a professional player, or an amateur.

The reason is that the Courts - in Ireland, at least - really, really do not like getting involved in sporting disputes. Essentially, they are seen as being private disputes, between private parties, and to be resolved by the private bodies concerned. The Courts won't step in and exercise an oversight function in the same way that they would were there a public dimension to it. So, where there's a state or statutory body involved, overseeing the disciplinary hearing, then the Courts can and will intervene, because there's the public element. But, if not, then it's a private dispute, to be settled at a later date; and if it's a sporting one, that's all the more the case.

In the Coughlan v. FAI case, last January, that was more or less the reason why the judge, Hedigan J., hearing that case, held against the applicant (who was seeking to challenge the FAI's refusal to him of a licence to run Cork City FC). He quoted an aside from another judge, Smyth J., in Gould v. McSweeney:

    Sports organisations do best to resolve differences under their own governing codes, rather than resort to courts of law. Issues of natural justice are important, but the substance of matters rather than their form are important in seeking to resolve internal disputes in such organisations and recourse to the courts should be a last resort, and that only in the rarest of cases.


It is only fair to point out that, even since that hearing, Cork Con injuncted the playing of the Munster Senior Cup final; but it's also fair to point out that the Coughlan v. FAI  case wasn't cited to the judge in that case. If it had been, the result might well have been very different; from the judgement, it seems pretty that, at amateur level, disputes should almost invariably be sorted out in-house.

That's under Irish law. It should be noted that, despite similar reservations expressed (see for example the  last two paragraphs in this case, Flaherty v. National Greyhound Racing), the UK Courts still seem more willing to step in to exercise a general supervisory role, and a case of this kind,  properly argued before the Irish Courts with a full discussion of the UK caselaw, well change the Irish position.


Be that as it may; even as it stands, if you're a professional player, it's different. For one thing, it's your livelihood - a distinction made by Smyth J. in Gould v. McSweeney. Also, as a professional, you're playing for a professional team. You have a contract with them. And that professional team in turn takes part in whatever competition in which you were playing for them under a participation agreement - a contract between your team and the organisers. Now, it might be pointed out that that agreement is between your employer and someone else, not between you and that someone else. That's where the Modahl case comes in.

In Modahl v, British Athletics Federation, Diane Modahl, the British former athlete was charged with failing a drugs test (wrongly, as it turned out). She went in front of a disciplinary committee whose members she felt were not unbiased. She challenged this finding, appealed and succeeded; she then sued for damage caused by the first finding. The Court of Appeal in the UK held that, although she didn't have a contract directly with the organisers, the effect of her participating for years in meetings and clubs run under the BAF was that she had an implied contract with them.

So, you have what is, in effect, an agreement, about your work as a player, between you and the organisers of the tournament. You have a contract with your team; your team have a contract - the participation agreement - with the organisers; and when it comes to discipline, the organisers implicitly (or even expressly) agree with you and your team that they'll deal with it, and deal with it fairly.

That includes disciplinary hearings affecting your work; and that means there's an implied term about a fair hearing at work.

In a sporting context, that'll be interpreted pretty robustly; Diane Modahl lost her case, as it was held that all concerned agreed to accept what was a reasonably fair hearing with no prospect of a different outcome.

That's where professional players have an option. If they don't accept the system, or if they can show that the hearing was unfair, they can go to the Court for an injunction, based on contract, preventing the organisers or governing body from suspending them on the back of what they say is an unfair disciplinary hearing. This has happened in France on more than one occasion, and there are English cases on this, in sport, discussed in detail in Modahl and Bradley v. Jockey Club, both of which are well worth a look.

However, both the IRB and ERC are based in the same city, and operate (so far as anyone can tell). under Irish law. So, an aggrieved player could go straight from the ERC headquarters, get a taxi, and be in the Four Courts looking for an injunction restraining an unfair hearing within fifteen minutes, depending on the traffic down the Dublin Quays.

And, since this post is already long enough, we'll leave the player stuck in the traffic for the moment, and get back to this later.