Jared Payne, Reggie Goodes, James Broadhurst, Mouritz Botha, Nathan White, Kevin McLaughlin, Jonathan Thomas, and Alistair Hargreaves – all have retired due to concussion.

Dylan Hartley, George North, Mike Brown, Francis Saili, Dane Coles, Ben Smith, and Ryan Crotty – all have come close to retiring due to concussion.

But they are the lucky ones. This weekend, Louis Fajfrowski of France’s ProD2 side Aurillac died following a head-knock in a pre-season friendly. It is an incredibly sad and haunting reminder – as if we needed one – of just how dangerous rugby can be.

Rugby has a problem with Traumatic Brain Injuries (TBIs). It has done forever but, as players continue to get bigger and stronger, the risk of suffering a TBI goes up and up. Governing bodies across the globe are trying to find ways to protect their players and, with the NFL’s $1 billion lawsuit firmly in mind, to protect themselves from litigation.

The latest attempt to do just that by France’s Ligue Nationale de Rugby (LNR) involves ‘blue cards’ for players with suspected concussions, and the possibility of 12 substitutions. The new measures come as a result of a medical conference between the LNR and the French Rugby Federation (FFR) but remain subject to the approval of World Rugby. This article will explain why these rules are a step in the wrong direction and why they will have an array of unintended consequences.

The New Rules

Substitutions

The first of the new rules changes would allow a side to make up to 12 substitutions per game. This doesn’t mean that there will be an extra four players sat on the bench, rather that players replaced for tactical reasons will be able to return to the field to replace:

1. An injured player;
2. A player with a blood injury;
3. A player who has been ‘blue-carded’;
4. A player who is undergoing a HIA; or
5. A front-row player who has been yellow or red-carded.

Temporary replacements for HIAs and blood injuries do not count as part of the 12.

The French authorities say that “this measure aims (in addition to simplifying replacement rules by no longer distinguishing between players in the front-row and other positions) to better manage injuries and the risk of injury during matches.”

Blue Cards

The second change sees the introduction of a blue card, which allows the referee to permanently send a player off who shows “any obvious sign of concussion”. As well as playing no further part in the match, the player must then observe a rest period of at least 10 days.

This proposal is supported by trials in France’s third-tier men’s competition as well as in the top women’s league, the Top 8. It has also been used in both Australian and New Zealand club rugby.

The Consequences

Substitutions

For this author, the new rules on substitutions have the potential to increase the risk of injury – including concussion – and would be readily open to exploitation.

Increasing the number of substitutions will mean that there is an increased chance of fresher players being on the field later in the game. Players who have been taken off, and have had a rest, will then be able to re-enter the fray, refreshed. This could lead to bigger collisions continuing throughout the game, including the increased possibility of collisions between fresh players and tired players. No statistical evidence is needed to deduce a higher risk of injury, particularly concussion, in these circumstances.

Similarly, if there is less risk involved in making an early substitution (i.e. because they can return in the event of injuries), coaches will be more inclined to do so and, hence, players will increasingly not need to last the full 80 minutes. Therefore, players can focus more on size as opposed to endurance. Bigger players, trained to exert their power in shorter bursts, will lead to bigger collisions – again increasing the risk of injury.

The current rules allow for tactically removed front-rowers to come back on, but this is an exception owing to the specialist nature of the position, and the particular dangers of scrummaging. They also allow players to come back on for players needing a HIA (to incentivise HIAs) but, once the removal is permanent, the temporary substitute must come off. The rules are carefully crafted to promote safety whilst minimising the risks outlined above. Some have even called for the number of substitutions to be reduced. On the contrary, the French measures are unnecessary and, arguably, dangerous.

Perhaps the biggest problem, however, is the increased possibility that the substitution rules can be exploited. It has been well documented that the French national team has exploited the rules regarding front-rowers, to enable them to bring back on their first-choice scrummager, Rabah Slimani, and there have also been accusations that they took advantage of the rules on HIA substitutions in their game against Ireland this year. The new rules would allow this type of dubious conduct – whereby a player claims to have an invisible head injury – to happen in every position.

It is a step in the wrong direction, with an array of potentially dangerous unintended consequences. It should be rejected by World Rugby.

Blue Cards

The blue card rule does not convince, either. Putting more responsibility on the referee, who is entirely unqualified to make what is ultimately a medical decision seems questionable, at best.

As recent test matches have shown, rugby referees have one of the hardest refereeing jobs in world sport. The rules can be extraordinarily complex, and there is sometimes no clear decision – on-field calls are often debated long after the final whistle. Why put yet another difficult decision in the hands of the referee?

Giving an account of what they have seen, or perhaps suggesting a HIA is needed after a big head knock should be the limits of the referee’s powers in this regard. Permanently removing a player for suspected concussion should be a medical decision, made by an independent doctor. Referees are entirely unqualified for this responsibility and it is yet another way in which their judgment can influence a game.

If “any obvious sign of concussion” was interpreted in the narrowest sense (i.e. a player being out cold or struggling to walk in a straight line) it would be workable, but the current rules allow referees to ask for HIAs anyway – and no reasonable doctor would deem a player fit to return in those circumstances.

Moreover, the on-field decision will have repercussions beyond the match itself, given the mandatory 10-day rest period. A mandatory rest period of this length following a concussion is to be welcomed, but only on the decision of a doctor. Would there be scope for the referee’s decision subsequently being overturned? Putting such power in the hands of the referee would be a proverbial minefield.

Finally, introducing the blue card could have implications for the legal liability of the referee. In English law, at least, it has been held that rugby referees owe a duty of care to the players to minimise their risk of injury. In the case of Vowles v Evans [2003], Lord Phillips MR stated the existence of such a duty but noted:

“a referee of a fast-moving game cannot reasonably be expected to avoid errors of judgment, oversights or lapses. The threshold of liability must properly be a high one.”

Nonetheless, the new rules would increase its scope. If, for example, a player received a head knock, but the referee failed to show him a blue card, and the player went on to suffer a second collision, causing his death by so-called ‘Second Impact Syndrome’, would that referee be liable?

In ongoing legal action relating to TBIs suffered in rugby (Cillian Willis v Sale Sharks, James McManus v Newcastle Knights and Brett Horsnell v Parramatta Eels) the defendants are the players’ former clubs and their medical teams. Indeed, this author has previously suggested that such claims stand a good chance of success. Under the new French rules, however, these actions could also be brought against referees. The implications of this could mean an increase in refereeing insurance costs, or perhaps difficulty in finding insurance at all, whilst the spectre of being more easily liable in law might put some off refereeing altogether.

In all, it is another dangerous proposal which this author hopes is rejected by World Rugby. Medical decisions should be left in the hands of those medically qualified.

“Governing bodies across the globe are trying to find ways to protect their players and, with the NFL’s $1 billion lawsuit firmly in mind, to protect themselves from litigation.”

Conclusion

The new rules which the LNR hope to introduce into French rugby are dangerous and misguided. The proposals for substitutions would be open to exploitation far more easily than the current system and could increase the risk of injuries. The blue card rules, meanwhile, are just as problematic. A referee is not well placed to pass judgment on whether or not a player is concussed, and such a rule would cause no end of headaches – both legal and administrative.

The LNR would be far better off ensuring that highly-trained independent doctors are present at all games and are able to monitor head contacts closely, with the final decision on whether players remain on the pitch being in their hands. Furthermore, all clubs and leagues would do well to heed the advice of neuropathology expert Dr Willie Stewart and reduce the amount of contact training at all levels of the sport.

The RFU have taken the step of trialling a reduced legal tackle height, in line with the armpit, in the Championship cup competition next season, after an extensive process of statistical analysis. While this measure will not eliminate concussions entirely – particularly those suffered due to collisions with knees and hip bones – it is certainly a step in the right direction. The LNR are, unfortunately, going the wrong way.