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Rugby’s day of reckoning looms as unedifying worst-case scenario becomes clear.

The likes of Gavin Henson and Colin Charvis were named as claimants in the case against rugby’s governing body last week

On the face of it, last Friday felt like a step forward towards a resolution in the legal action that continues to cast a shadow over rugby.

Three years have passed since the original lawsuit concerning brain injuries was filed against World Rugby, the Rugby Football Union, and the Welsh Rugby Union. Several former players have since gone public with their terrifying tales.

That all changed last week when the reporting ban was lifted, allowing for the publication of all 200 parties involved in the case. Thirty-odd Welsh people have played rugby for Wales internationally.Register for our newsletter here to receive the most recent Welsh rugby news.

It’s hard to read the list of well-known names there in black and white, especially since it doesn’t seem like everyone expected their involvement to become public, which adds even more complication to an already complex situation.

Since the original action was launched, things have become progressively more strained. Lines have been drawn, with debate around the subject often binary or reductive – even toxic – at times.

Look at the comments on any article on this in the past three years and you’ll likely see one of two responses. Some are steadfast in their belief that the governing bodies are liable, while others are adamant that the players knew what they were signing up for and are simply jumping on the bandwagon.

Now, the latter is quite obviously a more insensitive take on the matter, but the reality is that neither is a statement of fact.

The former may change – the governing bodies may well be found liable in court. If it ever reaches that stage, of course.

All Friday’s latest case management at the Royal Courts of Justice actually did was put forward 200-odd more names in black and white for public consumption. But, in terms of a resolution to all this, we’re not really any nearer.

Any hopes of moving beyond a case management hearing were dashed last week due to a lack of availability of full medical records beyond self-reported symptoms.

Master Cook said, “Unless these medical reports are based properly on the individuals’ medical records and history, we are in a very difficult place.” He also criticized the two parties for their lack of cooperation and communication, calling them “passing like ships in the night.”

“I don’t fully understand why Friday happened,” stated Jonathan Compton, a partner at DMH Stallard and legal expert. Long before Friday, it must have been abundantly evident to both Susan Rodwell, the claimant’s KC, and Michael Kent, the defendant’s KC, that this case is not prepared for Master Cook to consider in connection with a Group Litigation Order under the rules of civil procedure.

“Somebody had to pick up the bill for all this work and it’s not cheap. There’s 295 players and they need to select a representative cohort. That’s the problem. They must have known for a long time they weren’t ready. That’s why Master Cook adjourned it to April.”

That will be the third case management hearing. It all points to this dragging on even further if it were to go the distance.

The very nature of this legal action – and likely what will define it at the end of it all – is how it sits in the court of public opinion. It is all about optics.

We could have another year or two, maybe more, in that setting, with all the brinkmanship and point-scoring, before this actually reaches court. Or even, if it reaches court.

Compton previously told WalesOnline that he believed that the sport’s governing bodies should not allow this to

argue that even if they could win, the spectacle of a “pyrrhic victory” would not be worth it when they go to court. When both parties have the long-term survival of the game in mind, a settlement offers greater flexibility in a situation such as this one, which can be succinctly characterized as the sport versus its players.

“I don’t tell anyone how to run their case, but broadly when you’re dealing with one’s own clients, you encourage them to settle where possible,” Compton said. “Because the parties and the lawyers have some control over the situation during a negotiation process.

“They can decide on what to agree on and what not to agree on. They can agree on things not in the purview of the court, like compensation funds. Once it’s in court and you’re being asked by the judge, that’s it. It’s the judge who decides who wins.

“You are a passenger. So, that’s why we encourage to settle where possible. Get around a table and if there’s some way of crunching this – and it’ll hurt as you’ll have to give something up – it’s a lot more pleasant than being up in court.

“I strongly suspect that the QCs (for the defendants) are saying behind the scenes that we can score some points. But whether that does any good in the court of opinion, or even if it goes to court, remains to be seen.

“I would suggest settling is the best option. That’s going to be a problem as it will be a lot of money. Often, as a defendant’s barrister, you can aim to cause as much doubt in the claimant’s mind as you can and cause them to obtain a settlement lower than the court might award.

“A slightly lower sum of money now, without the suffering and wait of going to court, might be a more attractive proposition to someone with a degenerative brain injury, rather than five years down the line or whenever this reaches the court.”

That’s a crucial point to make. It is implied that the ruling authorities are certain they will prevail in court. After all, the claimants may find it difficult to provide concrete evidence of their liability.

However, money is undoubtedly a factor as well. As a whole, the sport isn’t very wealthy right now. Regardless of how it would appear in the courtroom, fear of significant compensation may play a role.

“It’s a brutal game, law. Those are the horrible decisions that have to be made and are the ones that are brought into very sharp focus by a case like this, where the quality of people’s lives are at stake.”

If a settlement is a best-case scenario, then this heading to the courtroom arguably feels like the worst-case.

The claimants raise a number of allegations in their legal action. Among these they cite the alleged failure by the rugby authorities to take proper steps when the game turned professional to respond to a disregard for player safety and brain health. The alleged failure to provide adequate steps to inform, educate or warn the claimants

The possibility of irreversible brain damage is also brought up.

Brian Moore, a former England hooker and personal injury lawyer, articulated persuasively why it could be challenging for the claimants to establish liability.

He states in a Telegraph article that establishing causation will be the most difficult task. The claimants must demonstrate that their early-onset dementia and likely CTE were brought on by repeated head trauma and that the governing bodies’ negligence significantly impacted their case’s outcome. According to him, correlation does not always imply causation.

“Early-onset dementia is also one of the diagnoses said to apply to some of the claimants, but concussion is only one of 12 identified possible causes,” says Moore. “Saying that there is a correlation between early-onset dementia and concussed players is not enough for legal liability.

“Establishing concussion as the cause requires evidence that none of the others apply or a definitive reason to conclude concussion is a principal cause.”

However, given that both parties are firmly committed to their current positions, it may also be for the best that a middle ground is found, despite how difficult it may seem right now.

When World Rugby informed players in 2021 that there were 12 modifiable factors—including depression, alcohol consumption, and unhealthy eating—that could account for their declining brain health, it was perceived by some as a slight to those adjusting to their new circumstances.

Now, imagine those factors being brought up in court. A former player being questioned by a hard-nosed lawyer as to whether it was actually drink or drugs, rather than a career in rugby, that has put them in the position they are now.

The people who dedicated their bodies and, in a cruel way, their minds to this sport are now being dissected by those who are supposed to be protecting it.

It’s a gloomy picture. Not just for the players, but also for those who aren’t sure if they or their children should pick up the sport.

“These guys have got to get around the table and avoid the unedifying spectacle of a whole load of people, who by the very nature of their conditions, are not going to be in the best condition to undergo cross-examination,” Compton said. “There is no one at the top of their game like Michael Kent.

“I dare say that the Unions’ lawyers could claim some points in cross-examination. Ultimately, you’ve got a whole load of athletes who are roughly the same age, presenting roughly the same set of conditions.

“Conditions that are unusual in the relevant age groups and who therefore represent a statistical anomaly. They

all experienced the same symptoms after playing the same impact game. It appears extremely unlikely that they will lose the case based on the medical evidence, based on the balance of probabilities.

“In terms of where the case is going as a whole, my money remains, whatever the defendant’s lawyers may think, on the players to be successful in their claim.”

“I believe that correlation does eventually turn into causation. All of these people played the same game that involves head impacts and head injuries, and they are all about the same age and are presenting about the same conditions in an age group that is not typical for these conditions.

“And head traumas and impacts are the root cause of all of these disorders. In my opinion, we are merely asserting that these individuals are all experiencing the same injury on the balance of probabilities—that is, not beyond a reasonable doubt as in criminal law.

“What is the most likely reason for it? That question, in my opinion, is what matters. The defendant has the right to obtain the medical records, so they are free to use deft arguments to drag this out. They are able to gain some ground. But I believe we must exercise extreme caution and recognize the forest for the trees.”

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