Four years ago, just after the Guardian had first reported that a group of eight rugby union players had been diagnosed with early onset dementia and were planning legal action against the game’s governing bodies, I sat down to a three-way interview with the former Wales international Alix Popham and the forensic pathologist Bennet Omalu. It was Popham’s idea. He had just gone public with his own diagnosis and was planning to launch a charitable foundation to raise awareness about brain health. He had seen the movie about Omalu’s life, Concussion, and wanted to learn more about his story.
Omalu describes himself as the man who first identified chronic traumatic encephalopathy (CTE) in the brain of an American football player. He is a colourful character, one of a few I’ve met in over a decade of reporting on these issues. Even within the small community of people campaigning for better brain health there were people who would, and did, warn me off talking to him because they felt he had exaggerated his achievements. Omalu has his flaws. But it is indisputable that he has done plenty to publicise the risks of CTE in sport, and that he has a better idea than most about the obstacles, and arguments, that anyone who wanted to do likewise was likely to face.
“They are going to come after you,” Omalu told Popham. “They are going to call you all types of names.” It would have seemed over the top if I hadn’t already had background conversations with people in the sport who openly questioned the reliability of some of the eight players who had come forward and which, at their nadir, even pointed to the fact that one of them had a known history of recreational drug use. I’ve no doubt there are plenty of other people in rugby who had similar conversations around this time and heard the same things.
Soon the eight players became a dozen, and a dozen became many more. The anecdotal evidence became overwhelming, the suffering unavoidable, the problem incontrovertible. The authorities finally started work on implementing a few long overdue measures, including changes to the laws, and better welfare provision for retired players.
But those players are still waiting to find out whether they will win their claim or not. The authorities are unable to help them so long as they are involved in the legal action. So they’re in limbo. The next hearing is due in February, but no one on either side expects the case to properly begin before 2026. The two sides are caught in what feels like an interminable back and forth about disclosure, while media teams on both sides push and pull at public opinion.
This week, it was revealed that the law firm representing the claimants, Rylands Garth, had unsuccessfully sued the former England player Will Green for medical costs after they paid for him to have tests done and he then refused to join their action because he received a second opinion that contradicted their findings. The firm is now under investigation by the solicitors regulation authority (SRA) for possible breaches of the authority’s code of conduct. Representatives for Richard Boardman, the lawyer who initiated the wider case and the only partner at the firm, say he welcomes the scrutiny and that a central allegation made by Green – that he felt under pressure to lie about having dementia – is false and libellous.
District judge Pickering (who is listed as sitting on two Rugby Football Union panels), however, found with Green that Rylands Garth hadn’t proved the costs were reasonable and that the terms of engagement were muddled at best. Boardman has made mistakes. Whether he has done worse than that is down to the SRA to decide. He is, in his way, a colourful character too. He isn’t a rugby man. He doesn’t have a club tie, a double-breasted blazer or a debenture at Twickenham. He worked in television before he went into law and admits he stumbled into this case after reading about the concussion settlement made in the NFL. Rylands Garth is a small firm and it has seemed overwhelmed and understaffed for the size and complexity of the case they have taken on. The Green case has raised yet more questions about the processes they used to make their diagnoses.
All of which they will have to explain in court, for better or worse. All of which makes Boardman an easy target. No one in the sport is going to go after the players now. But there are people in it who would go after the firm representing them. The public tends to have a lot less sympathy for lawyers than it does for damaged athletes and it sometimes appears as if the defendants’ media strategy is to try to drive a wedge between Rylands Garth and the players they are representing. You can pick up hints of it in some of the public statements put out by World Rugby, like this one from December 2023.
“Legal action prevents us reaching out to support the players involved,” it said. “But we want them to know that we care deeply about their struggles, that we are listening and that they are members of the rugby family … Despite the court’s order from June 2023 the court noted that there was a ‘gaping hole’ in the evidence provided by the claimant’s legal team. The further delay to the case is regrettable and the players’ lawyers seemingly prioritising media coverage over meeting their legal obligations, is challenging for all concerned; not least the players themselves.”
The players could be forgiven for asking themselves exactly why they would want to trust their future care to the same organisations that made a mess of their past care. They could be forgiven for wondering who, exactly, would accept responsibility for their injuries and what, exactly, would happen to the compensation they feel they are owed, if they weren’t involved in the action.
Richard Boardman and Rylands Garth didn’t create this situation. The “rugby family” did. In fact, it was the lawsuit that forced the sport to finally get serious about these issues. Ultimately, the problem won’t go away if lawyers do. But the threat of a multimillion pound payout will.
