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Hiding behind the concussion industry: The NRL’s ticking time bomb

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Expert
2nd November, 2021
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The 2020 book The Triumph of Doubt, written by ex-Barack Obama and Bill Clinton Assistant Secretary, David Michaels, is an eye-opening account of how corporate cynicism and greed repeatedly triumphs over the safety of workers and consumers.

Over 15 engrossing chapters, Michaels lays bare the sharp practices that infests industries as diverse as chemical, pharmaceutical, vehicle manufacturing and the NFL.

Among many stellar reviews, ex-San Francisco 49ers line-backer, Chris Borland said: “When corporations manipulate science and launch marketing campaigns to sow doubt, they ensure human suffering. Michaels’ work is vital reading for everyone to understand these industry tactics.”

While the specific approach differs from industry to industry, the tactical playbook adopted by corporations that elect to take this path is remarkably homogenous. Typically, when problems are identified, an executive decision is made to ‘manage’ the issue in favour of expending resources to actually solve it.

Typical actions include:

•The careful management of public perceptions, both of the organisation and the issue, including high spending in public relations
•Commissioning and funding ‘friendly’ research, with predetermined outcomes unharmful to the organisation
•Quoting ‘friendly’ or irrelevant research, to validate their position
•Casting doubt on contrary science and research, and attacking the credibility of ‘unfriendly’ independent scientists and practitioners
•Continually calling for more evidence and clarity, insisting upon more and more studies, in order to push the issue further into the future
•Associating with high-profile politicians or public figures to enhance legitimacy
•Highlighting trivial or partially relevant actions as evidence of ‘attacking the problem’
•Inadequate response to failures and breakdowns
•Fostering a culture within the organisation/industry where whistleblowing or conduct contrary to the objectives of the organisation are suppressed
•Abnormally high legal costs, combined with a desire to avoid court at all costs
•Paranoidal control of media, refusal to engage independent journalists and publications

Published online in 2017 was the most recent Consensus Statement on Concussion in Sport, considered the global framework for concussion diagnosis, recovery, return to play, and Chronic Traumatic Encephalopathy (CTE).

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Except that with regard to CTE, the statement asserts that, “a cause-and-effect relationship has not yet been demonstrated between CTE and sport related concussion and exposure to contact sports.”

An incisive 2020 expose by Jeremy Allingham of the Canadian Broadcasting Corporation found that of the 36 expert panellists who compiled the statement, 32 happened to have connections to organisations and sports where concussion is a major issue.

For many other independent experts, including Associate Professor Michael Buckland, of the University of Sydney, and Associate Professor Alan Pearce of La Trobe University, the science with respect to the connection between brain injury and CTE is not only in, the use of a flawed consensus statement as a tool of convenience is a concern.

Published in October 2021, a paper authored by 17 global experts, including Buckland and Pearce, entitled, Toward Complete, Candid, Unbiased International Consensus Statements on Concussion in Sport takes particular issue with the consensus statement’s CTE assertion, stating:

“Over the last 20 years the consensus statements that emerged from these conferences have been dominated by individuals with close relationships to professional and amateur sports organisations.

“The documents have promoted sports-friendly viewpoints that could be construed to pronounce concussions and repeated sub-concussive impacts more benign, recoverable, transient, and reversible injuries than we consider reasonable.

In so doing, the guidelines have arguably compromised informed consent. We would suggest, too, that these guidelines have almost certainly avoided the complete candour required for informed consent to be complete and frank.”

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Jake Friend of the Roosters passes

Long-time Rooster Jake Friend’s career was ended by repeated concussions (Photo by Matt King/Getty Images)

In short, there is concern that what players might think they are signing up for, with respect to the risks associated with contact sports like rugby league, does not fully reflect the true risk.

Consider then, the matter of head injuries in rugby league, and the actions of the NRL.

•In 2021 the NRL announced that concussions had halved compared to 2020. In fact, the NRL simply changed their definition of concussion to exclude numerous incidences that were previously considered concussions.

•In 2019 the NRL announced an investment of $1m into concussion research, including a partnership with the University of Newcastle and Harvard University, funding the ongoing research of Dr Andrew Gardner, who stated that the study would take “multiple generations” to conclude.

Gardner is considered the NRL’s ‘go-to’ expert on matters of head injury, despite his co-authoring a study claiming there to be no direct links between head injury and CTE.

This outcome led renowned global concussion expert, Dr Chris Nowinski, to state, “At this point, it’s fair to ask, why are the people who are getting money from the NRL so bad at measuring exposure on a concept that’s so simple?”

In October this year, another paper co-authored by Gardner was published, determining that there was no link between concussion and risk of depression. Despite the study taking eight years to complete, and Gardner acknowledging that “self-reported concussions are not extremely reliable”, research outcomes like this have the effect of reinforcing opinion that the risks of head trauma are overstated.

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Nowinski immediately took to Twitter to set the record straight: “Amazed to see an NRL-funded study finding a mind-boggling 30 per cent depression rate among retired players spun into an article about how concerns over head injuries are overblown.

“Tip of the cap – this is a masterclass in how to keep industry $ coming.”

•In 2021, the NRL replaced its Chief Medical Officer, Dr Paul Bloomfield, with a five-person Medical Advisory Panel (MAP). Upon announcing the formation of the panel, NRL Head of Football Graham Annesley stated that it would include specialist doctors in neurology.

The panel comprises Dr Donald Kuah (Chairman), whose interest areas, according to his profile for the Sydney Sports Medicine Centre, “lie in the treatment of tendon pathologies, Osteoarthritis, hamstring origin pathologies and also in the area of regenerative medicine; Dr Sharron Flahive, a sports medicine specialist, long-term team doctor for the Wallabies and NSW Waratahs rugby union teams; Dr John Best, a sports and exercise specialist with a particular clinical interest in shoulder and hip injuries; Associate Professor David Heslop, an expert in major disasters and infectious diseases, who was hired by the NRL to facilitate the game’s return in 2020 under strict COVID protocol conditions; and, Craig Catterick, former Penrith Panthers rehabilitation co-ordinator (now since resigned).

No inference is made with respect to the medical capability of any of the panel members or their commitment to the safety and health of rugby league players. All of the panel members are highly regarded in their respective fields. But none of the panel members are experts in neurophysiology.

•In May 2021, following complaints that not enough was being done to combat a rash of concussions caused by foul play, Magic Round featured a crackdown by referees that saw unprecedented numbers of players sanctioned for high contact to the head of an opponent.

Tyrell Fuimaono is sent off.

Tyrell Fuimaono being sent from the field in Magic Round for a high shot on Ryan Papenhuyzen (Photo by Bradley Kanaris/Getty Images)

But by the end of the season, with similar transgressions now going unpunished, fans and some sections of the media were wondering if the crackdown had run its course.

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•In September 2021, the Newcastle Knights (backed by the NRL) settled prior to trial in the NSW Supreme Court, a case relating to head injuries suffered by former Knights player James McManus. Details of the settlement are confidential. Despite the matter being settled, subsequent reports in News Limited press (the NRL’s main broadcast partner) claimed that the NRL had “won” the case.

It is unarguable that, regardless of what financial settlement was reached with McManus, by virtue of the case not going to court, avoiding evidence being heard in public with respect to the dangers of head injury, and concerns over concussion management in rugby league, the NRL can consider themselves a ‘winner’. That is not the same thing as the matter being heard by a judge, and the NRL winning the case.

The construct of a perception that cases against clubs and the ruling body are nigh impossible to win serves as a deterrent for other players who might contemplate similar action. In May 2020, Parramatta player Brett Horsnell withdrew his court action, three years after instigating it, stating that “he didn’t need the drama”.

•Also in September 2021, despite the NRL insisting that its protocols for removing concussed players from the field of play were watertight, in a preliminary final against South Sydney, Manly player Sean Keppie was allowed to stay on the field and continue to participate in play, despite him being visibly concussed.

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•In the lead-up to the 2021 season, the NRL dispensed with dual referees, ostensibly as a cost-saving mechanism. The referees lobbied strongly on the grounds of player safety, demonstrating that incidences of concussed players being allowed to play on (such as those that would occur involving Keppie, Lachlan Lewis and others) would not have occurred in the presence of a second pocket referee.

Lachlan Lewis

Lachlan Lewis (Photo by Mark Kolbe/Getty Images)

Not only were the referees rebuffed, a prominent media report suddenly emerged, attacking the business and personal reputation of a senior refereeing administrator.

•The Rugby League Players Association, which otherwise might be expected to represent the interests of their members who are potentially at risk from head injury, is funded by the NRL to the extent of $1.6m annually, plus an amount of $4.8m per annum which the NRL has committed to pay into a player retirement fund.

When contacted by The Roar earlier this year, a PA representative stated, “We are satisfied that the NRL is utilising the right experts and devoting appropriate resources to the area of concussion in a way that demonstrates appropriate duty of care for members.”

Would they have commented differently had they been independently funded?

Meanwhile, players – who are not subject to any formal education on the seriousness of brain injury – continue to recklessly hit each other in the head, with force.

•Despite Australian Rugby League Commission Chairman, Peter V’landys, spruiking that the NRL’s crackdown on foul play was a direct initiative to address the concussion problem, it demonstrably didn’t work.

ARLC Chairman Peter V’landys

(Photo by Matt King/Getty Images)

NRL sports injury expert Brien Seeney reported in September that for the 2021 season, in-match concussion incidences increased by over 30 per cent compared with previous seasons.

One outcome was that media and fan discussion actually shifted away from concern about head injuries, to refereeing and judiciary inconsistency instead. This was inevitable, given that at no stage was any clear, evidence-based framework and protocols provided to referees, to assist with the implementation of such a profound change to the way in which the game had previously been adjudicated.

An obvious question to ask is, why would the NRL, like the companies and organisations who feature in Michaels’ book, obfuscate and proceed down a path of fostering doubt and misconception, when they must know that the matter is inevitably going to catch up with them?

Reasons include arrogance; office holders rarely being held personally liable; potential financial penalties that might sound large to the public often being small relative to the size of organisation and seen as a cost of doing business; financial penalties often being paid by someone else (i.e. an insurer); and elongated time frames meaning that current administrators can leave it for someone else to deal with.

Whatever the reason, it is evident that under the current administration, there seems little prospect of the NRL pro-actively implementing genuine, effective measures that will make the game safer for participants.

What then, is the approach that should be taken?

Pearce, a widely respected Neuroscientist and researcher in the area of brain injury, told The Roar that the first thing that needs to change is the emphasis on concussion.

“What we have is a platform that is misleading, as it provides an opportunity for both inadvertent and deliberately deceptive manipulation of the issue, that ultimately seeks to apply solutions to the wrong problem,” he says.

“Brain trauma and concussion are not the same thing. A person can suffer a concussion and recover to the point where they no longer exhibit symptoms of concussion, but their brain still hasn’t had sufficient time to recover. Similarly, a person can suffer repeated brain injury but exhibit no symptoms of concussion at all; what are known as sub-concussive hits.

“Sports like the NRL must consider all incidences of head injury and take this into account. Not just the visible injury that attracts the headlines, but all of the factors attached to it,” he concludes.

Pearce’s comments suggest to this writer that an effective way for the NRL to manage the issue might be to break the issue down into four distinct parts; two which apply pre-concussion, and two post-concussion.

Stage one is ‘situation’. This would reflect not only the overall position the sport finds itself in today, but encompass the concept of existing brain injury resulting from repeated sub-concussive injuries obtained through childhood, junior sport, then into adult sport, via play and training.

In this respect, it is possible that many NRL players have suffered significant brain trauma before they even start playing professionally. (This aligns with the concern in soccer over the accumulated effects of heading the ball over a lifetime).

This stage also encompasses ‘assumed risk’, where NRL players informally accept the risk of injury as a reasonable trade-off against the opportunity to play professionally. It would seem that better disclosure, definition and more rigid parameters around what is reasonable risk, and where the respective responsibilities of the NRL and players lie, would be beneficial.

This is also the point where the NRL should consider the context in which an 18th man ‘concussion substitution’ was introduced this year.

The move bought controversy and dispute around the potential for teams to manipulate the rule for unfair advantage, when really, the question the NRL should have been asking was, “If we are forced to add extra players to ensure that teams who lose multiple players to failed HIAs in one match aren’t disadvantaged, don’t we have a fundamental problem with the game in the first place?”

Of all of the four stages, it is this area that poses the biggest potential, existential threat to rugby league and other contact sports. For example, it is here where future research may demonstrate that even incidental head contact, leading to brain trauma, renders a contact sport like rugby league unsafe.

Ryan Papenhuyzen

Storm custodian Ryan Papenhuyzen has missed plenty of action due to concussion (Photo by Robert Cianflone/Getty Images)

Stage two is ‘prevention’. Are the rules of the game, tackling techniques and training methods sufficiently well designed to minimise the incidence of head contact? Are the adjudication of the rules and the application of judicial sanctions, sufficiently robust and consistent? Are there appropriate modifications for junior rugby league? Is there sufficient player education?

Focus must be equally applied to accidental and incidental contact, and foul play. Foul play is the most talked about, because it is the most visual and, because players should be able to be trained away from it, is considered the ‘low hanging fruit’.

However, as was evidenced this year, to be effective, any approach must be methodical and scientific. A chairman thumping on his desk for a fortnight is not the way to bring about lasting change.

Post-concussion, we move into the ‘management’ phase, which includes protocols and guidelines for detection and management of head injuries. This encompasses initial assessment, adoption of new technology for earlier and better identification of brain injury, return to play protocols, the appropriate medical advice provided to all participants in the sport, and investment into research.

This is typically where the NRL focuses attention, to demonstrate how players suffering concussion are better managed than ever before. But the pitch-side SCAT5 baseline test used for HIAs is frequently gamed by players, and has been widely discredited by concussion experts, and the return to play protocol allows injured players to resume playing far more quickly than what Pearce and other experts consider is safe.

The final stage is ‘motivation’. This requires acknowledgment from the NRL that the science with respect to CTE is already in. Does the NRL truly want to solve the problem, or is it satisfied with maintaining the appearance of trying to solve the problem?

A report this week in the Sydney Morning Herald detailed how, for rugby league (and rugby union), concussion is now the leading cause of hospitalisation for participants.

According to Seeney, more than 120 players suffered concussions this year.

When adding in unreported instances occurring at training, the actual number is almost certainly far higher. Also, a number of high-profile players were forced into early retirement this year, due to ill-effects from head injury.

Boyd Cordner of the Roosters reacts after the 2020 NRL Qualifying Final match

(Photo by Cameron Spencer/Getty Images)

How many is too many? And further, does the culture of the sport support an effort by the administration (should one be forthcoming) to solve the problem?

Setting aside the lamentable record of the NRL with respect to solving the problem of head injuries, it is evident, from the actions of players and rugby league commentators (largely comprising ex-players) that there remains little understanding of the need, and little appetite for, change.

The culture of rugby league is derived from its origins; working men breaking away from rugby union fiercely determined to be financially compensated for the time spent away from their jobs. From inception, an intense loyalty was fostered, and rugby league revelled in its image as a belligerent, working class, tough man’s game.

Somewhere along the way, save for a brief period in the 1980s when judiciary chief Jim Comans attempted to clean up the game, this persona of toughness was allowed into morph into acceptance of forceful head-high contact as being part and parcel of rugby league.

Even today, that attitude persists. After it was announced that research had found that former footballers were four times more likely to die of motor neurone disease (MND) than the general population, English player Kevin Sinfield said in December 2020, “A lot more research is needed before linking concussions in rugby league to brain diseases. It’s important not to guess and try to make assumptions.”

NRL immortal, Andrew Johns, commenting in August this year about the poor form of Ryan Papenhuyzen, who had taken a long time to recover from a debilitating head injury suffered in May, suggested that all Papenhuyzen needed was to fall off the horse again and cop a couple of hard hits. “The lack of contact work is where the demons are coming from,” Johns insisted.

Andrew Johns smiles as he's presented to Newcastle fans in 2017

Johns, the eighth Immortal, has previously stated his own health issues may have been caused by concussion (Tony Feder/Getty Images)

When Brandon Smith, also of the Storm, was filmed on an alcohol and cocaine bender following his side’s preliminary final loss to Penrith this year, intense media focus was around player admissions (or lack of) regarding identification of a white powdery substance, and the subsequent sanctions imposed.

Nobody – least of all Smith himself – wanted to talk about how a player, having failed a head injury assessment (HIA) during the match and being replaced, was allowed to ignore recovery protocols and ply himself with drugs and alcohol, to the point where it was claimed he was too drunk to know what he was doing.

Past legends of the game like Ray Price and Steve Mortimer are among many ex-players who are walking illustrations of the potential for head injuries suffered, having a severe impact on cognitive and motor function post-retirement.

There is an opportunity for the NRL to utilise these greats and other past players to educate current players, to shift the culture, and to at least test the prevailing ‘we go into this with our eyes open’ mentality.

Instead, with each head injury, week after week, fans and media commentators nod and repeat the mantra that the game needs to get serious about concussion, without anybody in rugby league stepping forward, or knowing how to actually go about it.

An announcement was made last week that a group of ten rugby league players, including legend Bobbie Goulding who, at age 49, has been diagnosed with early onset dementia, is launching legal action against England’s Rugby Football League.

Might this serve as a catalyst for action in Australia? Like COVID-19, brain trauma in rugby league is not confined within geographic borders.

The answer lies with the game’s leadership.

V’landys and the commission running the NRL can choose to act to save rugby league from itself, or they can elect to kick the can further along the road, to maintain a veil of concocted credibility, and to keep hiding within the concussion industry.

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