'The defence will probably carve some of the plaintiffs to pieces' - Ethienne Reynecke fears concussion lawsuit will turn ugly

Ethienne Reynecke is taking no pleasure that time has proven him right about concussion. It was May 2016 when he put his head above the parapet, suggesting in a website column that rugby faced a legal and financial ticking time bomb due to the issue.

"I want to discuss a ticking time bomb that is situated inside rugby. It's so intertwined and part of rugby that you can make the insensitive comparison to cancer. The malignant type. We know it is there, we just choose to ignore it," wrote the former South African Super Rugby hooker whose European spell featured pitstops at Saracens and Connacht.  

Four-and-a-half years later the 'cancer' is finally no longer hiding in plain sight. Last week's initiation of a concussion lawsuit against World Rugby, the Rugby Football Union and the Welsh Rugby Union by ex-players suffering early-onset dementia has rattled the sport.

The concussion situation greatly saddens Reynecke, a 38-year-old who himself knows about life adversity only too well. He was nearly dead on three occasions in 2018, surviving a stroke, gunshot to the head and a ruptured spleen. He fought back to become a South African MMA amateur champion just last March.

That's a story he compelling relayed to RugbyPass over the phone last May from Johannesburg. Now the topic of discussion is concussion, something Reynecke had his own problems with during a no-holds-barred career where his aggressive style of play earned is share of painful blows.  

"I had five big concussions," he explained. "There are scales or grades to concussion. With some I remember a bit, with others I don’t even remember playing that day. Before I played professionally there were no people that could assess the concussion using the Glasgow Coma Scale. 

"Most people think concussion only happens when someone is knocked out so bad they lie on the ground without moving, or with arms stiffened like they were enduring an epileptic fit. My first one was when I was 15. Obviously, there was no duty of care to look after us at that time. 

"I kept playing and on the bus back people were laughing at me because I was acting funny and puking. I remember when I moved my eyes to the right or left the field of vision moved slow-motion and delayed to where I was looking.

"I had one proper whiplash at university, one at training when professional and two games that I don't even remember. The worst was in one of those games I kept playing for about ten to 20 minutes before they realised I was not all there."

When Reynecke retired from playing he tried to take on a hands-on role in investigating head injuries, putting his degree in chemistry and biochemistry to use in trying to get a concussion biomarker business off the ground in 2016. It didn't work out but his research was informative.

"I read about the two protein biomarkers in a medical article, GFAP and UCH-L1, even though that was in the early stages as the focus was on a point of care hand-held instrument. I approached the company in San Diego for the exclusive rights for the reagents in Africa to run the assays on basic lab equipment to run an ELISA test for concussion while they develop the point of care further.

"The findings were actually shocking. I used it in the presentation of my business plan. My research wasn't focussing on rugby alone. In South Africa, the mortality rate for traumatic brain injury is six times higher than developed countries and that includes automobile accidents, falls, sports-related injuries and assault.

"In terms of rugby, these were the research stats I found: In the highest level of competition for 13-, 16- and 18-year-old the incidence of concussion is 6.8-10.5/1,000 playing hours. That is one concussion per four matches and one in six school players experienced a concussion during a season involving 420,000 active players in South Africa.

"Stats from BokSmart documents show there were 13 catastrophic traumatic brain injuries from 2001 until 2014 across school and club rugby. These 13 resulted in disability or fatality. Since then I know of two fatalities in school rugby. 

"When people heard about the concussion testing, I also had parents calling me, telling me horror stories of their kids who suffered concussion. The coaches didn't take it seriously and let them keep playing or training. These kids had to repeat their academic year as they suffered long-term neurodegenerative consequences. The parents had no idea what concussion was, so how could they have had a duty of care."

It is from this disturbing concussion background that Reynecke is taking a keen interest in the goings-on in the UK where the harrowing stories of Steve Thompson, Alix Popham and others have fuelled the media spotlight around the concussion lawsuit which took its first step on Thursday with the delivery of a pre-action legal letter to three of the sport's governing bodies.   

How it plays out in a court of law if it gets there remains to be seen. One thing that is definite, though, is how rugby can't afford a payout of the staggering size that occurred in America where a 2012 class action by 4,500 ex-players with serious medical conditions linked to repeated head trauma resulted in the NFL agreeing to a settlement of $765million settlement.

"As I said four years ago, a billion dollars might be a drop in the ocean for a big American corporation like the NFL, but I doubt if World Rugby or a governing body like the RFU or WRU can take such a financial hit," said Reynecke, who has an LLM masters qualification from his time playing in England. 

"In saying that, if class action does happen in the UK it will be a long, ugly case. And rugby is going to lose. Rugby is not the NFL. NFL is a big corporate machine rooted in capitalism. Rugby is not.

"I foresaw this class action happening. There have been other players in the UK that have tried to sue the clubs individually. When the news broke about the planned class action, there were a lot of chats, opinions and historical stories on a rugby WhatsApp group," explained Reynecke, who worries about the costs involved for the ex-players taking the test concussion case.

"Damages-based agreements (DBAs) are rarely used in England and law firms are usually reluctant to fund counsel fees. The players will have to fund this. That is why they are getting the news in the media so more players are added. Unfortunately, if this happens, it will be an expensive exercise that will take years. 

"The court jurisdiction would not want that pandora’s box opened, especially without proper proof. So the players will have to fund this costly litigation and as the case goes on for years, some players will say they don't have the funds for it anymore and will want to pull out but will be told if you want to get your money back, you either stay until the end to get the prize or lose the money that you funded so far.

"The defence will probably carve some of the plaintiffs to pieces. As an example, as much as I was unhappy with TBI and concussion not being taken seriously in 2016, I will personally not do anything to hurt rugby. 

"As well, the defence would firstly ask if my MMA was the reason for any long-term neurodegenerative consequences, even though the concussion I experienced during rugby was way worse than any training or competing in MMA. 

"The defence for the class action can get ugly as well. Don’t you think they will ask some of the people with early-onset dementia if it’s not from alcohol or perhaps cocaine use when partying in London?

"The NFL case was over 65 years and bonafide research that showed CTE, Alzheimer's disease or moderate dementia. The thing was that the NFL tried to cover scientific research and hid the risks of repeated concussions in order to return players to the field.  

"The big focus (for rugby) will be negligence, but I can't see it being successful. And even more important, there is not going to be a settlement like the NFL class-action. My heart goes out to former players out there that suffer from depression, alcoholism, anxiety and memory that is starting to become a problem.

"I know old players and friends that struggle with depression and alcoholism. I know that problems are probably the roots of some brain disease or disorder. But there are millions of people that struggle with that as well and didn't do a contact sport. So, the answer will only be revealed when extensive research on old rugby players is done."

Reynecke's parting shot is reserved for rugby's head injury assessment, something he most certainly feels isn't fit for purpose. "Even though the HIA protocols have become stricter in the four years after I wrote that article, the HIA protocol is still inadequate. I still think the ten-minute HIA window to assess and to recuperate is a f***ing joke."