Rugby Union authorities clear the way for players to sp...

Rugby Union authorities clear the way for players to speak out against dangerous play.

Rugby blog photo

In other instances of everyday life, the types of bodily contacts and physical injuries associated with the game of Rugby Union would give rise to criminal liability under the Offences Against the Person Act 1861 and to civil liability under the Law of Tort, but rugby and other combative and contact sports enjoy special treatment by the prosecution authorities and the courts, allowing their players to avoid such legal liability. This special arrangement is premised on the basis that sports such as rugby maintain appropriate internal regulatory structures capable of dealing with dangerous bodily contacts and, most importantly, that its participants are fully consenting to the rules and playing practices of the game.

Marking out the true limits of players’ subjective consent however is incredibly difficult, especially when the culture of the game encourages its participants to play down their injuries during matches for fear of substitution, and to remain tight-lipped post-match about the dangerous play of other players, particularly where such play constitutes an instance of on-the-ball contact which has (at least nominally) occurred as part of the game.

The Twitter comments made by England’s Full Back, Mike Brown, following his altercation with Australia’s Michael Hooper during a recent 2015 Rugby World Cup match represents a rare challenge to that established culture of silence. Following a dangerous tackle during the Australia v England match in which Hooper illegally used his shoulder to clear Brown out of a ruck, Brown took to Twitter to voice his anger at Hooper’s behaviour:

snip of Mike Brown tweet

Several influences on Brown’s decision to speak out publicly about Hooper’s dangerous challenge are apparent here. In particular Brown alludes to the fact that he previously had to take some time out of rugby as a result of a concussion sustained from an accidental shoulder-to-head contact during the last Six Nations Tournament. Additionally, the intentional nature of Hooper’s tackle obviously had an influence on Brown’s decision to comment on Hooper’s actions. What goes unspoken here, however, is the influence that the recent focus of the rugby authorities on concussions within the game is likely to have had on Brown feeling able to break away from the established culture of silence within Rugby Union, and to speak publicly about the dangerous conduct of another player.

To say that the nature of the game of rugby is being transformed by the focus on the prevention and detection of concussion would not be an understatement, and this has been particularly evident during the recent Rugby World Cup. The implementation of increased safety measures such as the concussion protocol and the clear evidence of a more robust disciplinary approach against players who risk causing concussions demonstrates that the issue is being taken seriously within the sport. This new approach has undoubtedly been influenced by several high-profile and heavily publicised instances of missed concussions occurring within the game, but also due to lessons learned from across the Atlantic in respect of concussions suffered within the sport of American Football, and the associated legal action that has been pursued against that sport’s regulator, the National Football League.

With such a cultural change around concussions being led by the rugby authorities it is perhaps unsurprising that players such as Brown feel more able to speak out about the dangerous on-field conduct of other players, where such play has a clear potential to lead to concussion or other head injury. What the Brown situation indicates more generally, however, is that a safe environment for players to speak out about other aspects of dangerous play could also be created if those governing the game had the will to do it, just as they have demonstrated in relation to concussions. Only in such a more enlightened era will we be able to properly investigate the true limits of players’ subjective consent to physical contact and injury, and only then will we be able to properly assess the suitability of rugby’s regulatory structure and the appropriate limits of the criminal and civil law in relation to Rugby Union.

Louise Taylor is a Senior Lecture in Law at Nottingham Law School. For details of her other publications see her staff profile.

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