Industrial disease most often evokes images of chimney sweeps or coal miners, quarrymen or copper workers, but since first being recognised in the late eighteenth century, it has become more synonymous in today’s society with contact sport, particularly football.
In this article our healthcare and sport team consider the findings of a recent study which explored whether associations can be drawn between potentially modifiable dementia risk factors and the higher dementia risk amongst former professional football players, and how such findings may have a ripple effect, not only on today’s footballers, but also their clubs, governing bodies, and insurers.
At the beginning of the millennium, the Professional Footballers’ Association (PFA) and the Football Association (FA) co-commissioned a 10-year research study into the “neurological neuro-imaging and neuro-psychological effects of playing professional football”.
Not long after former West Bromwich Albion striker Jeff Astle died at the age of 59, having been diagnosed with dementia just five years earlier. In November 2002, during the inquest into Astle’s death, the coroner heard evidence that advanced the theory that the syndrome “was likely to have been exacerbated by heading leather footballs”. The cumulative effect of evidence such as this led the coroner to set a precedent by ruling his cause of death as “death by industrial disease”, asserting that “the trauma caused to the front of his brain is likely to have had a considerable effect on the cause of death”.
Following this, the PFA requested, in the first instance, for the Industrial Injuries Advisory Council (IIAC) to recommend prescription of dementia in professional footballers. However, in 2005, the IIAC concluded that “current scientific evidence… [was] insufficient to establish a causal link between dementia and heading footballs, either via the accident or prescription route”.
In 2015, the FA set up an Expert Panel on Concussion and Head Injuries, which was made up of eight professionals from both the UK and US, all of whom were leading the conversation on head injuries and concussion. The role of this panel was and is to “monitor and advise [t]he FA and other football bodies on the appropriate guidelines for all levels of the game… The group [was also]… asked to help advise on how football’s world governing body should examine and research any long-term effects on the brain through heading injury or repeated concussion episodes”.
Due to logistical difficulties, the 10-year research study co-commissioned by the PFA and FA was truncated to five years, but further difficulties meant that the findings were not published until 2016. In short, these findings were inconclusive and offered no further clarification on the degree of consequence on the structural makeup of the brain following neurological injuries sustained whilst playing professional football.
At the forefront of this discussion was Dr Willie Stewart, Consultant Neuropathologist at the University of Glasgow, who was commissioned by the PFA Charity in 2017 to better characterise the incidence of neurodegenerative disease among former professional football players. To do this, Stewart conducted a retrospective cohort study which - two years later - ultimately revealed that mortality from neurodegenerative disease was 3.5 times more likely among former professional football players.
The invaluable nature of the insight gained by Stewart’s 2019 study rendered this complex issue as one to be taken more seriously and acted as a catalyst for the publication of concussion guidance for grassroots sports that was intended “to provide information on how to recognise concussion and how concussion should be managed from the time of injury through to a safe return to football”.
In this article we focus on a recent study, again led by Consultant Neuropathologist Dr Willie Stewart, which explored whether associations can be drawn between potentially modifiable dementia risk factors and the higher dementia risk among former professional football players.
In 2017, the Lancet Commission on Dementia Prevention, Intervention and Care identified nine potentially modifiable risk factors for dementia: a lower level of education, hypertension (abnormally high blood pressure), hearing impairment, smoking, obesity, depression, physical inactivity, diabetes and low social contact. As of 2020, excessive alcohol consumption, traumatic brain injury (TBI), and air pollution was added. In 2024, the catalogue of factors further increased by two to include high LDL cholesterol and visual loss.
Stewart compared the electronic health records (relating to general and mental health hospital inpatient and day-case admissions, prescribing information, and death certification) of over 10,000 male former professional football players against those of over 35,000 matched individuals from the general population. The interrogation and analysis of that data identified a dementia diagnosis in 3.62% of the former football players compared to 1.26% of the matched population controls and an overall trend of similar or lower rates of general health and lifestyle dementia risk factors among the former football players compared with the matched controls.
The study thus “found no evidence that high dementia risk among former professional soccer players was associated with potentially modifiable general health and lifestyle dementia risk factors” and, in the absence of such evidence, further underpinned the importance of the implementation of measures aimed at mitigating the risk of repetitive head impacts and traumatic brain injuries sustained during contact sports, specifically football. These findings – or lack thereof – also suggested that “while interventions to address general health and lifestyle factors remain recommended, the priority for neurodegenerative disease risk mitigation among contact sport athletes should continue to be reduction, if not removal, of exposure to RHIs and TBI when practical”.
A year prior to Stewart’s 2024 study, three Group Litigation Order claims were brought in the High Court on behalf of former football, rugby league and rugby union players against their respective governing bodies, claiming each failed to take reasonable action to protect their players’ health and safety.
To date, none of these claims have been heard. Yet an insight into how they might play out could be gained from another industrial disease: mesothelioma. In a recent landmark ruling in the case of White & Ors v Secretary of State for Health and Social Care, the Court of Appeal clarified the approach to be taken for establishing liability in such cases. Claimants will succeed if they can prove there was a degree of exposure in excess of the guidance in place at the time without protective measures being implemented. However, liability will not attach for “low or occasional levels of exposure” which would not have caused an employer to identify a risk, as per the standards of the relevant time.
In the cases being brought by ex-players, such temporal context will add complexities to proving precisely what was known by the medical fraternity at the time (when assessing foreseeability of risk) and whether such contemporaneous evidence was either negligently or wilfully ignored on account of – presumably – the overriding and unyielding yearn for promotion and associated profits. As such, it will be very difficult to establish a clear breach of duty in the absence of evidence akin to a smoking gun.
However, it has to be noted that the very first documented account of any contact sports-related head injuries can be found in the 1928 edition of the Journal for the American Medical Association in which Dr Harrison Martland observed that “For some time fight fans and promoters have recognized a peculiar condition occurring among prize fighters which, in ring parlance, they speak of as ‘punch drunk’… [the final symptom of which being] marked mental deterioration… necessitating commitment to an asylum”. Whilst the contextual background of this evidence does not relate to invasion games such as football or rugby, its very presence in print could heighten vulnerability to potential liability which governing bodies and their insurers may struggle to reduce, and which may allow for settlements on an inferential basis to be reached with a minimal application of pressure.
Nevertheless, we can only speculate as to the potential outcome of these GLO claims due to their relative rarity - it is the uncertainty that follows this rarity which has left many with legitimate concerns.
In the face of such uncertainty some insurers have adopted proactive strategies in an attempt to limit exposure to the potential repercussions of impending litigation. Others have tried to avoid liability by blowing the full-time whistle on writing cover for this class completely.
Going forward, one way in which clubs, governing bodies and their insurance providers can insulate themselves is by embracing a multidisciplinary approach to proactive risk management. The symbiotic relationship between the scientific, medical, and legal fields makes the trajectory of any developments emerging in one field predictable in another. By duly noting clinical breakthroughs in neurodegenerative disease research, specifically against the contextual backdrop of contact sports, those who owe a duty of care should broaden their comprehension of the nuances of the disease from a medical viewpoint which should, in turn, enable them to anticipate the evolution of risk in the eyes of the law and act accordingly. Moreover, this well-rounded understanding should then enhance the education that is frequently imparted to all staff – both coaching and playing – at all levels. The cumulative effect – which only partly exemplifies best practise – should allow for those who owe a duty of care to be on the offensive instead of the defensive, as some now find themselves.
While Stewart’s 2024 study “underscores the need for ongoing efforts to reduce repetitive head impacts and improve head injury management in contact sports to mitigate the dementia risk among athletes”, in the absence of removing the risk of repetitive head impacts altogether, it is imperative that a mechanism is found whereby the risk is attractive enough for underwriters to want to write cover for this class without being so prohibitively expensive that policyholders are deterred from renewing.
Make sure to keep an eye out for further articles from Keoghs in the coming months as the three Group Litigation Order claims progress.
Ella Meltzer
Complex Paralegal - Healthcare
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