Sports injuries: the concussion pandemic

(The following article by Fiona Hahlo was first published in Insurance Day on 16 April 2025).

The inherent risk of injury to participants in many sports is well known – you only need to watch a game of rugby or American football, or spectate a boxing match, to appreciate this. Participants must accept this risk to some extent, but, the acceptance is conditional. They rely on governing bodies to control and regulate the sport to minimise injury risk; clubs to enforce the rules; referees to ensure compliance; players to follow the rules; organisers to provide appropriate facilities; and clinicians, especially in professional sport, to administer appropriate treatment.

An area of key concern is head injuries, and the impact to participants of repeated concussive and sub-concussive injuries, which often occur due to collisions with other participants, falls or impacts with equipment.

Studies have shown a direct link between repetitive head injuries and the development of neurodegenerative disorders. There is now a real pandemic of athletes being diagnosed with life-changing conditions, which they claim are directly attributable to their participation in sport and, particularly, the failure of governing bodies to take the necessary action to protect them.

Global litigation

In the US, a class action by more than 4,500 former NFL players against the NFL alleged that despite knowing of the long-term health risks associated with concussion injuries, the league ignored and/or concealed this information from the players. It had a duty to protect the players and was negligent for failing to do so. The NFL denied liability, but settlement was reached in 2015 for an estimated $1billion. Similar litigation took place against the NHL in 2013, again with settlement being reached in 2019.

Here in the UK, there is ongoing group litigation involving former football and rugby players, who are suing the governing bodies of football and both codes of rugby (union and league) for failing to adequately warn players and protect them from the risks of repetitive concussive injuries. The claimants will need to prove that the governing bodies owed the players a duty of care, breached that duty by failing to take appropriate protective measures, and that this breach led to neurodegenerative disorders and consequent losses. This will require scientific and medical evidence to establish what was known at the relevant time. claimants are also likely to face significant legal hurdles, including defences such as volenti non fit injuria (consent to the risk) and contributory negligence, for example, where a player ignored medical advice to leave the field after a concussion

In Australia, the high-profile class action, Rooke v AFL Group Proceeding, is currently underway on a very similar theme.

Current management

Significant steps have been taken worldwide to address the issue of managing concussions. In the US, concussion protocols have been implemented to suit specific professional sports. For example, the NFL has a detailed Game Day Concussion Protocol. Outside of the professional arena, the US Centres for Disease Control and Prevention leads the HEADS UP initiative, which aims to educate participants in sports, coaches, parents and schools about concussion safety.

In the UK, there have been gradual changes over time. In football, header practice time has been reduced. In rugby, the laws in relation to tackle height have been changed, and head injury assessments and return to play protocols are in place and must be followed, with greater authority provided to doctors and match officials. The current protocol is that players should not return to play before 21 days post-concussion. Elite players now wear smart mouthguards, which alert an independent match doctor that a player has suffered a high force impact to the head. This enables appropriate action to be taken. Education and training are key, as well as ongoing research and monitoring. So far as grassroots sport is concerned, the government introduced UK Concussion Guidelines in 2023, with the slogan 'If in doubt, sit them out', to ensure a concussed player is removed from play and appropriately assessed and treated.

In Australia, similar concussion protocols and guidelines have been implemented across various sports to manage risks. For example, helmets in cricket must meet the British Standard for helmet safety and be worn both in matches and in training when playing in certain positions.

While the current developments are positive and encouraging, related litigation could be taken in the future. Recently, during the rugby Six Nations Tournament,  teammates Finn Russell and Darcy Graham collided with each other during Scotland's match against Ireland. Graham was taken off the pitch on a stretcher, but Russell was able to walk off the pitch to undergo a Head Injury Assessment (HIA). Although Russell passed his HIA, the Scottish coaches took the decision to keep him out of play for the rest of the match. Progressive Rugby, a non-profit player welfare lobby for rugby union, commented on X, formerly Twitter: "Excellent that the Scotland guys were this switched on, but it does show, yet again, that the HIA is not fit for purpose". Time will tell as to whether such assertions are features of any future litigation.

Looking forward

The progressive steps taken over the past decade or so should significantly reduce the risk of concussive injuries in competitive sport. However, there remains scope for litigation.

If the current legal actions succeed, they could open the floodgates to further claims. The scope of such claims may also broaden to include referees, clubs, or clinicians where concussion protocols are not properly followed. Players may even bring actions against fellow players and their clubs for dangerous tackles – such as in 2023, when Dani Czernuska-Watt successfully sued an opposing player after a tackle left her with catastrophic injuries.

If they have not already done so, insurers underwriting these risks should consider whether they wish to limit their exposures to such injuries through exclusions, conditions requiring adherence to safety standards and capped limits of liability.