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With news hot off the press on Friday 11th November 2022 that thirty former professional footballer players intend to send a Letter of Claim to the Football Association, The Welsh FA and IFAB alleging negligence that heading of the football has caused dementia and other neurogenerative injuries, it may be worth reviewing the legal niceties of a problem that was highlighted by Ian Stebbings two years ago.
Since then however much has changed including an FA trial within some grassroots leagues whereby heading was banned for those playing at under 12 level and below with an indirect resulting if the header was ‘intentional’. The outcome of that trial and whether such ‘laws’ would be extended to all grassroots under 12s remains to be seen.
The diagnosis at the beginning of November 2020 of Sir Bobby Charlton with dementia follows on from four other members of the 1966 World Cup starting 11 also being diagnosed with the same disease. Martin Peters, Nobby Stiles, Ray Wilson and Jack Charlton have all died suffering the disease. It brings into stark focus that nearly 50% of an 11-man team have suffered the same disease. Further recent diagnosis of ex professionals with the same disease include ex England captain Dave Watson, and it has recently been discovered that more than half of the Burnley FC championship winning team from the 1959/60 season have died from or are suffering with dementia. Whilst dementia occurs in the general populace it is now being dubbed the ‘footballers disease’ by the media and there are calls for it to be recognised as an industrial disease. The repeated heading of a football has, it would appear, adversely affected both the England World Cup winning squad and the Championship winning team from Burnley; the obvious question is how many more footballers has this affected.
The recognition of dementia as an industrial disease whilst likely to be simplistic, presents its own difficulties when it comes to litigation. The condition has to be verified by the Industrial Injuries Advisory Council. The Council previously considered Neurodegenerative diseases in professional sportspersons in 2005 but there was insufficient evidence to warrant prescription to any group of sports persons. A more recent call to evidence closed in June 2014 but no prescription is again forthcoming. The disease has however already been cited as a ‘cause of death’ on a death certificate, when in 2002 the death of former West Bromwich Albion and England footballer Jeff Astell was recorded as being due to Dementia and upon revision of the certificate it was recorded as an industrial disease which had been caused by football. More recently in May 2020 the coroner at the inquest into the death of ex Welsh International Alan Jarvis recorded that his disease could be linked to the heading of a football and concluded that his death from Alzheimer’s was “caused by his occupation as a footballer, heading heavy footballs”.
The repeated heading of a football in the days when the ball was much heavier seems to have disproportionally affected footballers and it is not unreasonable to conclude that it is linked with the activity. No full studies have yet been undertaken as to the percentage occurrence between footballers and the general population but a study in Italy in 2005 found that incidences of Amyotrophic Lateral Sclerosis (ALS) (Motor Neurone Disease) was higher in former Italian professional footballers than expected from the population statistics.
Footballs in the 1950 & 60s were much heavier than modern balls, however with the advancement in technology, which have made the balls lighter, they also now move and travel much faster, so whilst those footballers from the 1950s & 60s may have been heading a heavy ball at 50-60 mph, modern footballers could be heading a ball which travels at 120 mph. The impact could be just as dangerous today as it was in the 1950s-1960s.
A recent study by Glasgow University (F.I.E.L.D study 2019-20) found that footballers are 3.5 times more likely to have a neurodegenerative disease. However, there was no definitive evidence that heading a ball caused dementia but what was noteworthy from the research undertaken was that dementia related medications were prescribed more frequently to former players than those in the control group, and perhaps further indicative is that goalkeepers were prescribed less frequently. Further research by Dr William Stewart and his team at Glasgow is ongoing. It is of note that the Football Association published guidelines in Feb 2020 that banned heading of footballs in training (but not matches) for those under the age of 12.
The repetitive nature of an activity has long been recognised in the courts in RSI litigation cases. The problems it seems to be faced by litigating traumatic head injuries sustained by footballers relate to those of limitation, from whom does the duty of care flow, has that duty been breached, issues of causation and foreseeability.
Limitation arguments may well be easy to overcome since the dementia will only become known to the party long after the heading has likely stopped and such is catered for amply by The Limitation Act 1980 regarding date of knowledge, although there may be some argument as to when the party became aware of the damage sustained.
The more prickly question for litigators is by whom is the duty of care owed, if at all. A professional footballer signs a contract to play for a club, the club therefore has a duty of care towards the player within that contract. However, until recently clubs have been unaware of the risks of heading the ball and a player is aware that injury is part and parcel of the risk of entering the field of play. Heading is within the rules and the club would only be responsible for ensuring that the rules are adhered to. This is also true of the referee. (See the case of Barlett v English Cricket Board Association of Cricket Officials  8 WLUK 301 and cf Vowles v Evans  1 WLR 1607). But what if a player plays for a variety of clubs across different countries. Where does the duty of care lie then?
Many, if not all players, are members of the Professional Footballers Association (the players union) who are tasked with players welfare both during and after playing. Whilst they may owe a duty of care to the player, it is difficult to see how such duty would manifest itself. The PFA could hardly tell players to stop heading the ball when such is allowed under the laws of the game. It would seem that even if a duty was owed (with regards to heading the ball), that any litigation would fail on breach of the duty itself.
Do the law makers of the game (currently the International Football Association Board ‘IFAB’) owe a duty to alter the rules to minimise damage to players by perhaps, banning heading? An Australian High Court case perhaps gives some guidance. In the case of Agar v Hyde (2000) 74 A.L.J.R 1219 the court had to decide if a duty of care was owed by the International Rugby Football Board (a rule making body) to change the rules to minimise injury. The Claimant contended that the rules that were in operation when he suffered an injury were such as to expose him to unnecessary risk. These rules concerned the formation of scrums. The Claimant contended that the board owed him a duty of care as they did to all participants of the sport. The court found that the degree of control of the scrum in a particular match was too remote from the games law makers and therefore there was no duty of care owed. It went onto say that each game has its own inherent risks, and it cannot be said that all avoidable risks have to be eliminated. The only way to avoid such risks is not to play.
A further question arises as to what part and therefore what duty is owed by the league which the professional footballer plies his/her trade in. And what happens when that footballer is subject to promotion or relegation? Does responsibility, if there is any, shift for example, from the Premier League (operated by the Football Association Premier League Limited) to the Championship (Operated by The Football League Limited) or vice versa. Ultimately, who is responsible?
Do ball manufacturers bear any duty of care towards those persons who use their equipment even if the equipment conformed to rules in place at the time? The fact that equipment has advanced through modern technology means the ball may travel faster, but then one has to look at the fact that players have advanced with regards to training and fitness which allows them to strike the ball and produce more speed and movement, football boots have advanced and are now manufactured with special materials to produce greater speed. The fact that equipment and training have advanced does not make the equipment and methods of yesteryear defective. The seminal words of Bramwell B from the case of Hart v Lancashire and Yorkshire Rly Co (1869) 21 LT 261 when he phrased the now classic statement in that people:
“… do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before”.
will be ringing in every litigators ear.
Even if a player could show that he was owed a duty of care by his club, the game law makers, the PFA, the referee etc, the injured party would have an uphill battle in proving that any of those entities had breached that duty given the voluntary participation in the sport and the fact that each header was at the discretion of the participant and was within the laws of the game. Of course, it is trite law that voluntary participation in a sport does not negate negligence. One only has to see the decision in Watson v British Boxing Board of Control Ltd  2 WLR 1256 which also looked extensively at who owes a duty of care.
Issues of causation would also create difficulties for any potential claimant in that current medical evidence can give no definitive evidence that heading a football causes dementia. Why does such a disease occur in those who haven’t headed a ball, or not occur in some players who have? Given the lack of definitive evidence it is difficult to see how any of the entities described above could have foreseen that engaging in such an activity as heading a ball would cause neurodegenerative conditions. But what if a player as aforementioned plays for a number of clubs either at home or indeed as many professionals now do abroad as well? And when, during those periods of playing for different clubs, did the damage occur? And how is each header causing damage, if at all?
One sport that has made massive advances is boxing and the British Boxing Board of Control which faced judicial criticism in the above Watson case now has mandatory screening of fighters, in training as well as before and after fights, it has a full medical team at each sanctioned bout and provides after care to fighters who are injured as a result of participating in the sport.
Whilst various governing bodies within football and the PFA in England have come under criticism from various sections of the media it is difficult to show what more they could have done to prevent or lessen injuries, however; the potential neurodegeneration caused by heading a ball will not be immediately obvious and cannot be prevented by the presence of medical practitioners at the game at which the injury occurs.
The Football Association have in recent months introduced ‘Concussion Substitutes’ whereby a team may replace players with two permanent substitutions for head injuries along with the three normal substitutions. These ‘new rules’ were put into place for the first time on Tuesday 9th February 2021 during the FA Cup match between Manchester United and West Ham United at Old Trafford. Issa Diop, a West Ham defender clashed heads with Manchester United’s Anthony Martial. What followed has highlighted how deeply flawed these ‘new rules’ are, and according to Headway, the leading brain injury charity, ‘had failed at the first test’.
Diop was assessed for a full two minutes on the field and was passed fit to continue, he played a further seven minutes and then half time was called by the referee. Diop was then assessed again over the half-time interval and found to be suffering from possible concussion which had not been found during the initial two-minute assessment. He did not appear for the second half and was replaced by the ‘permanent concussion substitute’. Headway, who have been lobbying for ‘temporary substitutes’ have stated that if a temporary substitute had been used, Diop could have been taken off, a temporary substitute used, been properly assessed for a full 10 minutes (such as seen in Rugby) and then returned to the field of play, if passed fit, having had a full assessment. The use of ‘permanent substitutes’ puts the medical staff under pressure to get the player back in the game as soon as possible so as not to invoke a substitute. This could then put clubs at risk regarding their duty of care towards the player. Whilst this is not a heading a ball type injury the parallels regarding concussion are stark.
Until medical evidence is forthcoming, or the law dictates otherwise it may be down to lawyers to push the boundaries as that which was touched upon in the Watson case by Lord Phillips MR. when he recommended the approach as taken by Brennan J in the High Court of Australia. He stated “…..the House of Lords and this Court have approved the approach to the development of the law of negligence recommended by Brennan J. in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1 , 43–44, where he said: “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.” ”
Could such a ‘novel category’ be developed for football players?
The Football League structure (Premier League and English Football Leagues) must make available funds to look after those, from within its ranks, who have suffered proven injury, it is the proving of that injury that may not be so straightforward. Such a fund exists within the U.S. Following extensive research, American football has recognised the neurodegenerative disease caused by repeated trauma to the head and has set up the ‘Concussion Settlement Fund’ which has paid out many hundreds of millions of dollars to former players without the need for any further litigation (as of 16.11.20 over $811m according to its own website).
Whilst this may come as some comfort to those in the professional game, albeit more research is required, what about those at amateur level and where does one draw the line? Wherever that line may be someone is going to cry ‘foul’.