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Concussion, early onset dementia and CTE

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Post by king_carlos Tue 08 Dec 2020, 2:43 pm

First topic message reminder :

https://www.theguardian.com/sport/2020/dec/08/steve-thompson-former-rugby-union-players-dementia-landmark-legal-case?CMP=Share_AndroidApp_Other

That first link is an article in the Guardian about a potential legal case being brought against World Rugby, the RFU and WRU by 8 former players (all under the age of 45) with early onset dementia brought on by probable CTE. The players named publicly thus far are Steve Thompson, Michael Lipman and Alix Popham.

https://www.theguardian.com/sport/2020/dec/08/steve-thompson-interview-world-cup-rugby-union-dementia-special-report

That second link is a Guardian interview with Thompson, who's only 42, about his experiences with early onset dementia. Somber reading.

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Post by No 7&1/2 Sun 03 Dec 2023, 9:43 pm

Andrew Coombs: Former Wales forward reveals dementia diagnosis - https://www.bbc.co.uk/sport/rugby-union/67607608

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Post by Rugby Fan Mon 04 Dec 2023, 6:53 am

No 7&1/2 wrote:Andrew Coombs: Former Wales forward reveals dementia diagnosis - https://www.bbc.co.uk/sport/rugby-union/67607608

It's striking how young some of these players are.

The article says Coombs was 31 when a knee injury forced him to retire, is 39 now, and started getting symptoms when he was only 35.

The youngest person in the lawsuit is a 22 year old amateur player, while the youngest professional is Theo Brophy-Clews, who is 26, and retired in 2021.


Last edited by Rugby Fan on Mon 04 Dec 2023, 8:41 am; edited 1 time in total

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Post by No 7&1/2 Mon 04 Dec 2023, 7:51 am

It brings home for me why the laws were harsh pretty much up until Curry got red carded. And now back to us accepting head hits. I do.wonder what happened in the corridors of power with that sudden shift.

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Post by Rugby Fan Mon 04 Dec 2023, 11:25 am

Brian Moore:

https://www.telegraph.co.uk/rugby-union/2023/12/04/rugby-concussion-brain-injury-legal-case-toxic-debate/

Concussion, and the litigation involving former rugby players, has become a huge issue for rugby. The increasing toxicity of the debate over legal liability has reached a point of divisiveness that is doing immense harm.

Some journalists have irrevocably decided that there is liability. Some have taken to alleging that those who disagree are, effectively, commercially conflicted shills for the rugby authorities. On the other ‘side’, there are now allegations of players jumping on the gravy train of litigation, fuelled by no win, no fee lawyers.

Before raising the following points and questions, I feel obliged to set out my credentials in this area so that you can make your own judgement about the weight of what is said. I am a former international rugby player. I was a personal injury lawyer who litigated issues that involved thousands of claimants in both the Court of Appeal and the House of Lords. I also have a Master of Science degree, which involved having to understand research reports and statistical analysis.

I do not know whether there is liability. I accept that it will not be possible to be definitive about this until the medical evidence has been tested under cross-examination. I am not saying the claimants have no case. I am saying there are difficult hurdles for them to establish that case. If there is liability, the claimants deserve damages. Even if there is not, rugby should try to help those severely affected and have sympathy for their travails.

Anyone can have an opinion on this matter but, if they are honest, they should form it by addressing the facts and not just ignoring questions that are inconvenient.

The first point to make is that the NFL litigation over concussion is not directly referable to this case. The tackle techniques and rules about the legality of contacts to the head were, at the relevant times, completely different. Secondly, it is not correct to assert that knowledge imputed to the NFL will, under UK law, be deemed to apply to rugby at the same time.

The central issue to keep in mind is the difference between correlation and causation, and this applies both to the law and science around concussion. It is not possible in this short article to look at every medical and legal point. So, let us focus on two areas, but bear in mind there are communalities throughout the whole topic.

Chronic traumatic encephalopathy (CTE) was first diagnosed by Dr Bennet Omalu in 2005, following his postmortem on Mike Webster of Pittsburgh Steelers. According to Boston University, the world’s leading research faculty on CTE, there is no reliable way of diagnosing CTE before death. Claiming someone has ‘probable CTE’ is going to be problematic before a court.

If a player’s career ended before 2005, there will be the additional difficulty of proving rugby had the requisite knowledge to require it to act over CTE, when it had not been discovered. It is not good enough to claim CTE is the same as the previously diagnosed dementia pugilistica (being punch drunk). The knowledge dates for these conditions are different and it is legitimate to claim that boxing, where you can win by knocking out an opponent, is in a distinct category.

Although several media platforms have stated that concussion-related CTE causes the brain to attack itself, that is not correct and the truth is subtly but significantly different. They have found that in CTE cases there is a high correlation of abnormal patterns of tubulin associated unit (“tau”) proteins. They have not been able to specify what causes these proteins to go awry.

Early-onset dementia is also one of the diagnoses said to apply to some of the claimants, but concussion is only one of 12 identified possible causes. Saying that there is a correlation between early-onset dementia and concussed players is not enough for legal liability.

Establishing concussion as the cause requires evidence that none of the others apply or a definitive reason to conclude concussion is a principal cause.

A further problem is the large body of research that shows that retired athletes, including those from non-contact sports, have a variety of psychological and physiological problems, which mirror those claimed to have been caused by concussion. To establish liability, claimants must prove that such problems are caused by concussion and can be definitively distinguished. In any scientific analysis, they are going to have to pass the statistical significance test of there being a less than 0.05 chance that their results are not the result of coincidence.

The delayed cases are likely to go on for another two years, not least because the claimants have failed to properly comply with procedural stipulations and have had cost orders awarded against them. During this time, some commentators are likely to make further uncorroborated claims while others continue to claim that the game is going soft. None of this is helpful.

The law does not require rugby to be risk-free. It requires every reasonable step to be taken to reduce foreseeable risk and to inform people about that risk. This is why trials of new safety laws must be run and opponents of these steps need to accept this legal duty without whinging. The law does not say that medical procedures, taken at a certain time, are deemed negligent if they are subsequently changed. It only requires them to have been taken in line with a substantial body of similar expert opinion, even if other experts disagreed at the time.

I imagine that people will continue to push their agendas, but the polarisation, misunderstanding and misinformation that is creeping into this issue needs to stop. Get the cases heard, so that we know where liability lies and what we must deal with. In the meantime, would it be too much to ask people to address the above points, to refrain from abusing each other and to wait until the case is decided?

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Post by BigGee Mon 04 Dec 2023, 11:34 am

That is a very impressive article from Brian Moore trying to make some sense of what is an incredibly complicated issues and highlighting some of the pitfalls the complainants will face.

This is certainly not going to be a question of sign here and then collect the cheque!

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Post by dummy_half Mon 04 Dec 2023, 12:13 pm

BigGee wrote:That is a very impressive article from Brian Moore trying to make some sense of what is an incredibly complicated issues and highlighting some of the pitfalls the complainants will face.

This is certainly not going to be a question of sign here and then collect the cheque!

I can think of very few, if any, other people better positioned to write such an article for a lay reader. My experience with the Law (as an Expert Witness) is that it is much more nuanced than simply finding the truth of a situation. Indeed, the law, truth and morality only intersect some of the time and usually only by accident.
There is one weakness in the article though, and that is that Moore doesn't explain that as a civil claim rather than a criminal case, the burden of proof is 'more likely than not' rather than 'beyond reasonable doubt', and as such the claimants have a lower bar to get over than proving criminal negligence.

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Post by mountain man Tue 05 Dec 2023, 8:28 am

Another thought occurs around all this is why are players with a history of concussion still playing?

Notable examples are George North and Sam Underhill. Now, we can assume they have been thoroughly assessed etc and given go ahead to continue playing but given the number of players who are now suffering from early onset dementia etc or sympoms thereof, it makes me wonder why are they risking future well being. North has just signed with Provence for next season and Underhill is back playing regularly, was in RWC squad and quite possibly be in 6N squad.


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Post by Poorfour Tue 05 Dec 2023, 10:27 am

Moore’s articles are almost always brilliant, but this particular topic hits the intersections of his expertise so neatly that it’s hard to imagine anyone better placed to provide an objective analysis of what will undoubtedly be a complex and contentious case.

What it is likely to come down to is whether World Rugby and the unions were (or should have been) aware of the risks earlier, and whether the actions they took once they were aware were consistent with the best evidence available at the time of what would reduce the risk.

This, by the way, is a big part of why the RFU and other unions moved over the summer to reduce the tackle height - and took a huge amount of flak from players, coaches and supporters about it - this case has been brewing for a long time but I have been shocked at how many people show some awareness of it but still rail against the new tackle laws. But it took 7 years of accumulating evidence and trialling changes to get to this point - and even longer if you look at the introduction of things like the HIA protocol and Headcase training.

A lot may hinge on Barry O’Driscoll’s testimony - he resigned from World Rugby in 2012 in protest because he felt too little was being done about head injuries; it was one of the first public signs of the issue brewing. Understanding what evidence he and World Rugby had and why he felt they were doing too little about it is going to be very important here.
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Post by Rugby Fan Tue 05 Dec 2023, 11:35 am

In the Guardian, Michael Aylwin writes about how, if the case goes to court, rugby will likely end up the loser either way. While a loss for the unions could be financially crippling, a win might require shredding the reputations of former players.

https://archive.is/U1ftG

The game will not be the winner if legal action from players diagnosed with neurological damage ends up in court

Already there is a smack of Tier 1 versus Tier 2 in the contest we might call Rugby versus Its Players. Forget about talent, forget about justice; resources tend to hold sway. Which is not to say there is no hope for the 295 union players who applied for a group litigation order (GLO) on Friday, far from it.

Apart from anything else, they are clearly in need of compensation for their conditions, which somebody is going to have to pay. The defendants in the dock – World Rugby, the Rugby Football Union and the Welsh Rugby Union – would appear the most obvious parties responsible. Where it will become more contentious is whether those conditions are a result of negligence on the part of those defendants – or, as some of the more strident theories contend, a tobacco-style cover-up. Over to the courts.

If we ever get there. The preliminaries suggest that the GLO is likely to be granted, but not before the players’ legal team set their papers in order. Crushingly outnumbered by the rows of lawyers representing the three defendants, they suffered an early lecture from the ref. “It seems to me to be absolutely basic,” said Senior Master Cook of the medical records the players’ legal team were supposed to have supplied by now. Court adjourned for April. Out in time for lunch. Ouch.

Meanwhile, the defendants’ lawyers are already posturing as if they are confident of a win. This should not be seen as good news for those of us who want nothing but for the game to survive. The best-case scenario is a settlement before this case goes to court, which would not be before 2025. But if the defendants feel as if they can win – and as if they cannot afford to fork out for a meaningful settlement anyway – we could indeed be faced with the grisly prospect of Rugby v Its Players coming to a courtroom near you.

The sport’s image already feels as if it has been taking a hammering every bit as relentless as that meted out to its players in the normal course of a match, but wait until its governing bodies send in their lawyers to dismantle the evidence of its fallen heroes. In this case, the evidence is no more or less than their actual lives.

Imagine a ruthless KC interrogating Player X over their alcohol consumption, Player Y over drug use or Player Z over repeated concealment of their brain injuries as they did whatever they could to stay on the field in their playing days. Imagine confused, burly players in the dock reduced to tears by the very governing bodies who are supposed to look after them, whose repeated mantras about player welfare and No 1 priorities have long clanged hollow.

Such scenarios, however hypothetical at this stage, should make any right-thinking citizen seethe with anger just in the imagining of them, even if the almost-inconceivable possibility that the players’ conditions are unrelated to rugby turns out to be true. But the governing bodies would have no choice but to go hard in their pursuit of victory, which by definition means their pursuit of defeat and humiliation for the players.

Rugby very definitely would not be the winner. Any victory in the courts – and victory for the governing bodies is a perfectly plausible outcome – would be pyrrhic, the damage to the sport’s reputation almost as devastating as the very concept of neuro-degenerative conditions arising is to its future viability.

If nothing else, though, such proceedings should underscore the risks involved in playing a collision sport. If players know and understand those, so the defenders of the faith argue, they can decide for themselves if they want to play on. There may be something in that for the grown-ups – so long as best practices are observed in the recognition and treatment of brain injuries. But that line does not work with the kids.

Adult rugby will soldier on, whatever the outcome of this case. It is in the schools where the sport’s future will be decided. Already it feels, certainly in the little corner of the rugby world where I reside, as if there has been a sea change in attitudes, both among those playing and their parents. School rugby bears no comparison to its equivalent in the last years of the amateur era.

Professionalism may be restricted to the adult game, but its ethos pervades. Those not wholly committed must drop out sooner or later, for their own health as much as anything.
In order to play school rugby to any level of proficiency these days, from around the age of 15, one needs to be well-acquainted with the inside of a gym. There are conditioning programmes to be observed by players at even the mid-ranking schools.

Given some at that age are to all intents and purposes adults physically and others still very much children, the prospect for injury, whether to brain or bone, is already alarming. Sprinkle in the concerns of parents and, lest we forget, the demands of public exams, and it should not come as any real surprise the game will soon face a reckoning in the schools.

If in a couple of years’ time we must also watch the guardians of the sport eviscerate its former players, their lives in ruins as it is, in a court of law, we might as well switch off rugby’s lights now. This case is incredibly important for the players concerned and those to come and incredibly dangerous for the sport. Let us hope the protagonists on both sides know what they are doing.

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Post by king_carlos Tue 05 Dec 2023, 12:49 pm

RF - Interesting article from Aylwin.

I've posted it before but I heard early after the lawsuit was announced that drugs, booze, etc was an obvious reason that this might settle out of court. The boards will want that dragged up in court as little as the players.

Coke use is meant to be rife in the highest levels of rugby and most sport. I've seen first hand that it is in the higher amateur leagues in England and Scotland. It's not like the players going pro and having more disposable income is going to stop that. PEDs will be used extensively in rugby as well. Whilst the booze culture in rugby isn't even hidden.

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Post by Poorfour Tue 05 Dec 2023, 1:12 pm

Isn't that exactly the sort of article that Moore is warning against?

Aylwin makes it clear that he already thinks it's an "almost-inconceivable possibility that the players’ conditions are unrelated to rugby". He may be right, but he's hardly going into the process unbiased as to either the result or as to who the villains of the piece are (rattling on about the unions' allegedly deep pockets, armies of lawyers and the awfulness of cross-examination).

I'm also not sure I agree with him about a date in court being a disaster. It certainly won't be pretty, for either side, but it is probably the only route to provide any level of legal certainty around the outcome. It will determine what, if any, liability the unions hold for what has happened to these players, and establish a precedent for future cases. That's important for both sides to have; without it, the unions' support for the players becomes very open ended unless they decide not to offer anything.

I think he has a good point about rugby in schools. The hit to player numbers could be huge and that's why the tackle height reductions last year were so important - though I don't think that's well enough understood by parents and community rugby (and I don't think it's been well-enough communicated).

At the same time, the affected players need our compassion and support, though to some extent what the unions can do is constrained by the court case as it could be seen as an admission of liability.
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Post by king_carlos Tue 05 Dec 2023, 1:18 pm

dummy_half wrote:
BigGee wrote:That is a very impressive article from Brian Moore trying to make some sense of what is an incredibly complicated issues and highlighting some of the pitfalls the complainants will face.

This is certainly not going to be a question of sign here and then collect the cheque!

I can think of very few, if any, other people better positioned to write such an article for a lay reader. My experience with the Law (as an Expert Witness) is that it is much more nuanced than simply finding the truth of a situation. Indeed, the law, truth and morality only intersect some of the time and usually only by accident.
There is one weakness in the article though, and that is that Moore doesn't explain that as a civil claim rather than a criminal case, the burden of proof is 'more likely than not' rather than 'beyond reasonable doubt', and as such the claimants have a lower bar to get over than proving criminal negligence.

It's a very good article. The other significant thing missed is sub concussive blows being a massive contributing factor to CTE. If not the main factor. Which is something that seems to have been ignored across the mainstream reporting of this issue to a bizarre, some might argue wilful, degree.

The focus has almost entirely been on concussions. A very important topic of course. The issue of growing research showing that sub concussive blows can also cause DAI (diffuse axonal injury) has been relatively poorly reported. In short DAI's occur when the axons, which is the part of a nerve cell that carries signals to other neurons, shear when the brain rapidly accelerates or decelerates. In extreme cases this is the process that leads to major TBI. In more mild cases concussion. Growing research has shown that it also occurs due to sub concussive blows. When sportsman receive enough sub concussive blows over their career the cumulative effect can lead to CTE.

Concussion absolutely plays a role and shouldn't be ignored. But neither should that. Especially when the fitness and size of players means that we are seeing more collisions and bigger collisions than ever before. In the pre pro era RWCs the average tackles and carries combined for teams was 134. In the 2023 RWC it's approaching 300. Marcos Kremer hit 46 rucks in the 3rd/4th playoff. That's more than the average of an entire team in the first three RWCs.

There is now far less contact training than Thompson's era. Which will help with the issue of sub concussive blows. Whilst players are playing close to 30 games, 2000 minutes a year at the modern intensity I struggle to see that being the solution alone though.

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Post by Rugby Fan Wed 06 Dec 2023, 1:57 am

Poorfour wrote:I'm also not sure I agree with [Aylwin] about a date in court being a disaster. It certainly won't be pretty, for either side, but it is probably the only route to provide any level of legal certainty around the outcome.

A court can provide a ruling, but it would be far better if the two sides could resolve the matter before it does. For instance, some kind of settlement package from the defendants, recognising the distress of many of the claimants, while not accepting any liability. That's what happened in the NFL (although a court later ruled on the fairness of the settlement, and there is still separate litigation ongoing).

However, there may be some claimants who are unconcerned about money, and won't be prepared to accept anything less than a formal recognition of a link between rugby and their medical condition. For them, the case might be more about vindication for erratic behaviour and disrupted relationships.

There may also be defendants who don't want to offer any financial settlement, either because they feel it is unaffordable, or perhaps they view the claims against them as a shakedown.

There are lots of possible reasons for intransigence on both sides.

Poorfour wrote:Isn't that exactly the sort of article that Moore is warning against?  Aylwin makes it clear that he already thinks it's an "almost-inconceivable possibility that the players’ conditions are unrelated to rugby".

Yes, Aylwin does seem to be siding with the claimants, and Moore's article was very good at showing how that's not helpful in predicting where this case goes.

What both articles highlight is the way this issue is playing out both in court, and in public. For instance, if the court ends up ruling the claimants can't demonstrate a link, and the rugby authorities have no liability, it's hard to think that will be the end of the matter.

As Moore points out, the authorities still have a duty to mitigate forseeable risks, so there'll be no reverse course on HIA protocols, or tackle height laws. That won't please any players and fans who have threatened to leave the game over the introduction of these measures. At the same time, there'll be part of public opinion that will continue to side with the claimants, and feel that rugby is a dangerous sport in denial about its risks. That's not a great outcome for future playing numbers.

Similarly, if the court finds for the claimants, then we are in unchartered territory. Rugby will be legally linked to traumatic head injuries, which will probably lead to some schools dropping it from the curriculum. The financial consequences could be be ruinous for the professional sport. The whole code might have to be bailed out by a body like Saudi Arabia, or operate in much reduced circumstances.

Brian Moore explains how the NFL settlement has little legal bearing on the rugby case before the court. That's useful, because there are plenty of people, perhaps even many of the claimants themselves, who see the NFL result as irrefutable proof of similar harm in rugby, and can't understand why the authorities seem to disagree.

Moore's frustration is partly down to how public opinion is polarising, when so little is known about the case. Really, all we can glean is that hundreds of players have put their names to the claims, some of who have gone public with their current difficulties. We don't know any details of settlement proposals, let alone how far apart they might be. There was hope we'd get more clarity at the High Court the other day, but we just got more players names, and the view from Judge Jeremy Cook that the claimants hadn't yet provided sufficient medical evidence to progress the case.

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