Hello Cobbers,
And welcome back for episode 1 of the Chewsday Chew for 2023.
It has been a bit of a break since we were last in the normal routines. But that doesn’t mean there haven’t been some goings-on. In quick form we’ve had:
- Dave Rennie get told he was ‘Da Man’ for the World Cup.
- Dave Rennie get shanked 5min later.
- Now to be fair, one may expect that with a 38% win record. But if ever there was a case of “The Board’s Curse”, then Dave getting knifed was surely it.
- We also saw DJ EJ get shanked out of the English coaching job while having a win percentage of 72% overall, but after he had won a paltry 5 of 12 tests in 2022.
- Then we saw EJ get romanced by RA before he had even hit the street to parade his stuff ‘down Darlinghurst tonight’ as the song goes.
- We listened to RA’s Chairman McLennan waste no time in heralding EJ as a bit of saviour because (in his opinion) the Wobblies are too soft and do too much hand holding and singing Kumbaya (I’m still struggling with that).
- In the midst of all that we also saw the RFU give a masterclass in ‘shooting your own foot’ around the height of tackles (or did they?).
- And of course, without dwelling on it too much, we saw the prodigal son of Australian Rugby, Kurtley Beale himself, get stood down by the Waratahs (on full pay mind you) following his high-profile arrest and charging with alleged sexual assault.
So the Christmas & New Year break has not been bereft of stuff to talk about.
And then, on the weekend passed, we saw the Scots pants the Poms, the Paddies dismiss the Jones and the Frogs only just get over the Pasta & Pizza lads. Just in passing, if the Italians had indeed finished the job and beaten the French, would it have made us see the Wobblies loss to the Italians any differently? Sliding doors moments.
But today, I’m going to talk a bit about the RFU and their handling of the tackle height issue that has been bobbing about like an elusive apple in the proverbial bin.
The first thing to recognise is that, regardless of where anyone stands with their opinion of where tackle lines should be drawn (or made), there are some mighty big lawsuits underway in the UK right now that are driving this issue. And everyone, including those in our game and other codes, are watching proceedings very intently.
More precisely, two separate cases are underway with the London-based sports law firm Rylands Garth dropping letters of claim on the RFU and WRU in recent times. The first suit to launch was last year and involved over 225 former professional rugby players and the second group consisting of some 55 amateur ex-players launched in early January this year. There are some well known names in the law suits including Steve Thompson (England), Carl Hayman (New Zealand) and Alix Popham (Wales).
Both suits are citing negligence, recklessness, etc, by the governing bodies and so are seeking damages stemming from a failure by the governing bodies to ensure that those who had suffered from head knocks, be they acute incidents or cumulative, had not then been seen through a suitable recovery process. Specifically, they failed to ensure an adequate, symptom-free, break from the game after suffering brain injuries. They also argue that the governing authorities wilfully failed to follow expert medical advice available to them at the time about the risks of brain injury, and that they specifically failed to institute adequate research by credible independent experts into the greater vulnerability of certain player groups including females, children and front-rowers. Accordingly, the broad swathe of reported ailments they now suffer from, a range a neurological impairments including early-onset dementia, probable CTE, epilepsy, Parkinson’s disease, and motor neurone disease, are placed at the governing bodies feet as evidence of the outcome of the failure to manage such concussive and sub-concussive blows suffered while playing the sport.
These suits must be viewed through the prism of the 2013 NFL settlement. Therein, cumulative legal actions involving thousands of former college and NFL level players who had developed dementia or other concussion-related health problems were rolled-up into a single settlement underpinned by a medical fund that expects to shortly exceed U$1.5billion.
Now for those non-legal eagles out there, there are a couple of important things here:
- Firstly, the US/NFL suit did not go to ruling and verdict. No one was found ‘guilty’. Being a civil suit (so not criminal) and then ‘settled’ means both sides agreed on a sum of money and conditions being met without any verdict or admission of any culpability or ongoing liability by either party. That means the issue of testing the evidence against the benchmark of ‘balance of probabilities’ has not been resolved in any court.
- Secondly, even if the US/NFL had gone to a verdict, such a verdict would not be binding on a UK or Australian court. It wouldn’t set a precedent. But it would serve to influence and help shape any courts opinion, notwithstanding the particulars of different cases with different facts in different jurisdictions (the law varies).
- However, the fact that the NFL paid anything at all, and paid such an eye-watering sum, says they were perfectly aware they MAY have been found guilty and thus were moving pre-emptively to prevent having to pay a truck-load more.
So just have a sober think about that settlement number for a moment, U$1.5billion. For comparison, various estimates put the spin-off value of the 2019 World Cup in Japan at approx U$2billion. So for rugby, anything remotely in that realm of a financial hit is an existential threat. It is sport-ending stuff. Or if not sport-ending, it is asteroid-smashing-killing-all-dinosaurs stuff in that while the planet and ‘life’ may survive the big God awful rock falling out of the sky, life will look very different afterwards.
So yeh, the day after a monumental judgement gets handed down, someone somewhere will still go to footy training and life will continue. But it won’t be ‘Life as we know it, Captain.’
Is such a financial hit possible? Could rugby sustain that sort of hit? Well to be truly cynical, that depends on how good your lawyers are. And that depends on how much you want to spend. But in general terms, given the prevailing acceptance by the scientific community of the CTE argument, combined with the well-publicised NFL experience equating to meaning no one can realistically claim ‘they didn’t know’, then the odds are that the law suits will end in payouts. How big will those payouts be? I dunno.
So, bringing this chat back to the RFU, who are clearly aware of the issues above and directly citing papers such as this and this, we saw the RFU go to print with an announcement on about Friday, 20 January 2023. That announcement was the heralding of law variations from next season, 2023/24, wherein the tackle height was being set at waist height or below. The hullaballoo that resulted was deafening with all sort of pundits, petitions, proclamations and chest-beatings that such a radical call would be the end of the known game as we recognise it.
Then, on about Friday, 27 January, the RFU appeared to backpedal fairly dramatically with this statement wherein they are backing away from the universal decree approach and are now wanting to hold workshops with stakeholders (players, coaches, match officials and volunteers) on the matter instead.
While on the prima facie it was a Dunkirk-level revision and eating of humble pie by the RFU, was this reversal of the RFU position authentic? Or was it part of a pre-planned legal and commercial tactic?
I would put it to the Good Reader that this manoeuvre by the RFU was deliberate. I would offer that the RFU is well aware that their structure is a 3 way power split between the member clubs, the council and the Board of Directors (the Board) wherein the majority of power appears to rest with the clubs. As such, and knowing full well both the war that would erupt internally around the traditionalists on the side of ‘not changing the game’ versus the legal/commercial reality of Armageddon being faced, the RFU decided to go ahead and ‘set the pricing’ of the ‘auction’ so to speak.
You see, by ‘coming out so hard’ from the outset with such an emphatic statement on tackle-heights, it was a calculated gamble that achieves 2 core objectives:
- Externally, the price-bracket of the negotiation has now been set. And as any watcher of home-auctions knows, movement will be based on that starting-bid point. Thus it is a calculated gamble that I would suggest was more about being able to retrospectively demonstrate to any court that they (the RFU) had taken proper, meaningful and substantive steps to change the height of the tackle. Such positioning may not ultimately decide a legal action, but such a clear show of intent weighs heavily as/if/when deciding damages (and this is about money after all).
- Internally, it establishes the ‘maximum’ position with the clubs and the game from which the RFU will now gently recede until a point of compromise is reached. Somewhere above ‘waistline’ will be a word where the traditionalists are placated, but still advanced (lowered) from where it began and thus providing foundation to a legal argument for the RFU to run along the lines of “We took action, but it resulted in such an existential threat to our game that we had to compromise or have no game (and thus no money) at all.”
Will we ever know if my hypothesis is correct? I doubt it. But rather than a disastrous retreat that sits somewhere around 1812 and Napoleon’s Grande Armée debacle, we may have just seen a bit of deliberate or ‘feigned’ Battle of Hastings retreat so as to set up a defensible legal counter argument the RFU know will be called on, and quite likely may prove decisive, in the future.
Am I right? Am I wrong? Was it more Thermopylae than Stalingrad? We will see.
