In August the NFL, the most lucrative sports league in the world, announced that it had agreed the terms of a US$765 million personal injuries settlement with 4,500 retired players. The players had instigated a class action claiming the league had long hidden and failed to warn on the dangers of concussion in American football.

Players gave evidence in the lawsuit on how they now suffer from depression, dementia, Alzheimer’s or chronic brain trauma which they blame on blows to the head during games and training. The claim also accused the NFL of negligence in not regulating to prevent injured players from being rushed back onto the field.

The settlement, which has yet to be validated by a court, has been made without admission of liability by the NFL.

Second impact
One week after the NFL announcement, a coroner in Belfast ruled that 14-year-old Ben Robinson died as a result of injuries from second impact syndrome in a schools rugby game in Carrickfergus in January 2011. The syndrome – the impact of two concussive-type injuries in quick succession – led to swelling on the brain.

During the inquest, Ben’s father, Peter, used video evidence to highlight three separate tackling incidences in the second half of the game involving his son. Ben Robinson, with his Mum on the sidelines, eventually fell to the ground shortly before the end of the game, never to regain consciousness.

Peter Robinson now campaigns to raise awareness of concussion prevention in schools rugby. At the elite level of the game, the debate on concussion detection and prevention rages.

The current medical protocols put in place by the International Rugby Board (IRB) generally, and at individual tournaments such as the Six Nations, have received trenchant criticism from experts such as Dr Barry O'Driscoll. Dr O'Driscoll, who once sat on the IRB's medical committee, claims that current IRB concussion protocols are inadequate and endangering player welfare. Why, he argues, is the sport permitting players "with brain damage to be put back on the rugby field?"

At the first ever brain injury and European sport conference held in Dublin on 13 December last, the treatment of Dr O’Driscoll’s nephew, Brian, during the November international against the All-Blacks, was used as an example of the inadequacies of current IRB policy. O’Driscoll was taken from the field with suspected concussion but apparently passed the requisite concussion protocol.

Normally this would have permitted him to return to the field. At a crucial time in the game and with coach Joe Schmidt on the line, Irish team doctor Eanna Falvey nevertheless made the call to stand down the Irish centre.

Dr O’Driscoll also contends the failings of the IRB’s stance on concussion are such that the IRB is vulnerable to a NFL-type legal challenge.

A courtroom
Might the law makers in the IRB's boardroom soon find themselves in a courtroom? Four points are noteworthy in reply.

First, unlike the accusation made against the NFL, the IRB has been open about the dangers of cumulative, concussive injuries in rugby.

Nevertheless, the IRB should heed the lesson learnt by the British Boxing Board of Control in the tragic aftermath of the Michael Watson v Chris Eubank WBO super middleweight title fight of September 1991.

In the final round of that savage fight, Watson was stopped by Eubank and suffered a blood clot to the brain. There was a delay in clearing the ring and a further delay occurred when it emerged there was no plan to direct the paramedics to the nearest hospital with neurosurgical facilities.

Watson subsequently and successfully sued the BBBC for breaching it duty of care to provide adequate medical facilities on the night of the fight. The resulting costs of nearly £1million put the BBBC into administration and forced it to enhance its medical and safety regulations.

Now the usual approach in boxing, both professional and amateur, is that if a boxer suffers a knockout or if a bout is stopped by the referee because the boxer has received sustained hits to the head, that boxer is not permitted to take part in boxing or sparring for at least a 30-day period.

Second, and staying in the courtroom, the IRB’s approach to player safety regulation has previously been challenged in the courts. In a case called Agar v Hyde (2000), the claimants were teenagers who suffered catastrophic spinal injuries as a result of collapsed scrums.

The matter went to the highest court in Australia where the claim was that the IRB, as the sport's global governing body, had negligently permitted a situation to develop such that inadequate scrum safety rules exposed all players to unnecessary risk and was one of the direct causes of the claimant's injuries. The claimants lost on a technicality but the litigation echoes into today's game in the verbal instructions (crouch, touch, set) that referees give to players at scrum time.

Third, if a concussion-related claim were to reach trial, the key issue would be whether the IRB’s current approach meets the reasonable standards normally adopted in sports medicine. If, for instance, the IRB’s approach was shown to be egregiously at odds with common practice in the area, and principally the so-called Zurich principles on sports concussion (a global consensus agreement amongst practitioners in the field); then legal liability might follow.

Fourth, concussion in sport is what the physicians call an "observable" harm. Medical research presented at conferences at the Mayo Clinic in 2013 suggests that sport should not forget the dangers that even minor cumulative head injuries can pose. The research led to rule changes, banning helmet-led charges, at various levels of both American football and ice hockey.

This “hidden” danger may actually be the more serious, long term issue for rugby. As supplements help bodies become bigger, as sports science becomes more sophisticated and as the hits become harder, rugby’s authorities may have to consider the sustainability of the very manner in which the sport is now being played.

In sum, the IRB needs to carry out a comprehensive risk assessment on all aspects of the concussion debate. Rugby needs to do this not because of some future threat of litigation but because of the immediacy of player welfare and it would be appropriate if the subsequent policy responses might collectively be called the “Robinson Regulations”.

Jack Anderson is a Professor of Law at Queen's University Belfast. @SportslawQUB