The rise in post-retirement injury claims within sport

Posted in Dispute resolution, litigation and investigations Employment, labor and pensions

Co-authored byTom Maturi

Top level athletes suffer for their sport and, increasingly, there is focus on the medium and long-term effects of injuries. Perhaps the most notable example of this came in the United States, when the National Football League (the NFL) announced a settlement with more than 4,500 former players who sued the league for failing to protect them from head injuries.

As of March 18 2019, the combined NFL settlement pay-outs stood at over US$634 million, despite actuarial estimates from the NFL predicting total pay-outs of a little more than US$400 million in the first decade. The players had alleged that the NFL had willfully misled them over the long term impact of head injuries within the sport. The NFL, however, argued that the matter should instead be settled through private arbitration as was supposedly set out in collective bargaining agreements that the players had signed during their careers. Eventually, the matter settled in August 2013.

Under the settlement agreement, pay-outs can be made for up to 65 years after the settlement was reached. The agreement covers retired players who have developed neurological problems believed to be caused by concussions suffered during their careers, with awards as high as US$5 million for the most serious cases. Crucially for future liability, however, the settlement agreement is reportedly made on the basis that the NFL has not accepted any liability nor admitted that the players’ injuries were caused by the sport.

Indeed, there are copious examples of competitors across a range of sports battling grueling injuries long after their playing careers have finished. Lindsey Vonn, the four-time skiing World Cup winner, announced her retirement earlier this year after having suffered many long term injuries throughout her career. In an Instagram post announcing her retirement, she claimed that she “cannot continue ski racing” as her body is “broken beyond repair”[1]. Last year, British Olympic skeleton gold medalist Amy Williams revealed that she has been “living with pain every single day”[2] since a crash in 2002 and she has recently been forced to move into a bungalow to avoid having to climb stairs. 

In rugby, Cillian Willis, the former Leinster scrumhalf, has sued the Sale Sharks and two medics after he suffered a career-ending concussion, although it should be noted that this is specifically a clinical negligence claim rather than a claim against a governing body. Concussion has rightly come under particular scrutiny in recent years, with a number of sports (including rugby and cycling) introducing protocols to avoid players returning to the field of play when “punch drunk”. Within football, there has recently been widespread discussion on the links between heading a football and dementia, and this was the topic of a BBC documentary hosted by Alan Shearer in November 2018. 

To date, however, the NFL litigation is by far the largest case in this field, perhaps partly as a result of the availability in the United States of class-action law-suits and punitive damages. In England and Wales, where punitive damages are generally not available, the closest comparable method of bringing a claim similar to the NFL example would be under a “group litigation order”, as the joint claimants did in the wake of the Hillsborough disaster. There may also be the possibility of claims being brought by athletes against their governing bodies in arbitration.

Of course, the very nature of elite sport is to push the human body to, and often beyond, its limits. As understanding of the long-term effects of injuries increases, athlete care is being revisited, which can only be a good thing. In the meantime, expect a rise in the number of disputes between retired athletes and those running their sports.

 

[1] https://www.theguardian.com/sport/2019/feb/01/lindsey-vonn-retiring-world-championships

[2] https://www.telegraph.co.uk/news/2018/10/02/olympic-gold-medalist-amy-williams-moved-bungalow-sport-left/

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