While much of the focus has been on male athletes, increasing evidence from scientific studies1 suggests that biologically female athletes may be at a higher risk of sustaining concussions and other sport related traumatic brain injuries and suffering more severe long-term consequences than their biologically male counterparts. Litigation related to sports-related brain injuries is growing, with female athletes beginning to seek legal redress for the impact of head injuries sustained during their careers. As we explain below, the increased risks face by women in sport mean that sporting organisations must be giving specific attention to these issues or risk being open to liability.
Research indicates that factors such as anatomical differences (i.e. relative neck strength and lower head mass) and hormonal factors (i.e. hormone fluctuations and neurostructural and neurometabolic differences) makes women more vulnerable to sustaining concussions and experiencing more severe or prolonged recovery times for brain injuries.
Despite these risks, much of the research, protective equipment and injury protocols have been based on male physiology, leaving female sportswomen at a disadvantage in terms of prevention, diagnosis and treatment.
This increased risk to women in sport should be considered in a context where the impact of traumatic brain injury (TBI) is being discussed more widely across the board. In recent years, litigation surrounding brain injuries in sport has gained momentum. A group of former rugby players launched a group action against the Rugby Football Union (RFU), the Welsh Rugby Union and World Rugby for alleged negligence in failing to protect players from repeated head injuries. This legal movement has paved the way for female athletes to consider similar claims and all organisations involved in women’s sport should be taking steps to minimise the risk of further claims arising.
The question of whether, and to what extent, sporting clubs (both amateur and professional) and governing bodies should and are likely to be held responsible for injuries suffered by players is highly complicated. Ultimately, it comes down to the standard to which these organisations should be held.
Key legal considerations
- Assumption of risk: so long as the incidental risks of playing a sport are fully appreciated and voluntarily accepted, a person takes on those risks themselves by virtue of being a player. However, in the case of rugby, it might be said that a player accepts that a tackle may result in a low level or mild level risk of TBI in the short term, but have they accepted a long-term risk of multiple concussions leading to dementia or other cognitive issues? To what extent can women in sport be said to accept these even higher risks when all previous approaches have essentially treated women as ‘small men’?
- Duty of care: sports governing bodies, clubs, and coaches owe a duty of care to athletes to ensure their safety. If they fail to implement appropriate concussion protocols or provide adequate medical support, they could be held liable for negligence. In actions against governing bodies, the question is whether, in establishing the safety rules in place, they acted unreasonably in light of what they knew or ought to have known at the time the injury was suffered. It is not sufficient to rely on the rules having been up to date at the time that they were implemented. Sports organisations do not only need to ensure that they stay up to date on developments in understanding and that rules are reviewed and changed regularly, but that they are also looking at finding out what they ought to know in order to keep people safe in the game they control going forward.
The future: protection and legal reform
Issues of causation and limitation apply to claims by all players looking to hold governing bodies and sporting organisations responsible for injuries they have suffered and it will be extremely interesting to see how cases such as the current group action play out.
To reduce the risk of litigation and better protect female athletes, sports organisations must take proactive steps, including:
- Developing female-specific concussion protocols: more research is needed into how concussions affect women differently, leading to improved treatment and prevention strategies.
- Better education and training: coaches, medical staff, and players must be educated about the unique risks faced by female athletes and the importance of early concussion detection.
- Legal and regulatory changes: governing bodies must ensure that female athletes have the same level of protection and access to medical support as male athletes. If not, legal claims will likely increase.
Although there is undeniably a long way still to go before women in sports are given equal credit and attention as men, the popularity of women’s sports is irrefutably increasing. There is also a greater acceptance of the different needs of male and female athletes, reflected by the different concussion protocols being brought in for women playing rugby in Scotland, Australia and New Zealand, for example. World Rugby has also committed to funding equal men and women’s research so that if a study is carried out on men, the same study will be carried out on women.
This is clearly a growing area of development which all sporting clubs and organisations need to be aware of and take steps to factor into their decision making, governance processes and coaching strategies, whether at the grass roots or professional level. Should you have any questions regarding updating your internal policies, developing concussion protocols or in relation to potential historic liability, please contact Ben Thomas, Clara Hutter or Tim Constable.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.