The Real Pain of Non-Disclosure of Rugby Injuries

Author: Julie Austin and Brian Hammond

November 26, 2018

On 17 November 2018, Ireland struck a blow at the heart of New Zealand rugby with a 16-9 home win marking the first time in Irish history that the All Blacks have been defeated on Irish soil.

One notable absentee from the Irish team was scrum half and Midi-Olympique World Player of the Year, Conor Murray. Murray has been absent from the Irish set up since he picked up an injury in a test match against Australia on 23 June 2018. 5 months on, Murray has only this weekend featured on the pitch coming off the Munster bench against Zebre. Notwithstanding his return, detail of Murray’s injury has been scant.

Privacy Rights

Conor Murray is following in the footsteps of his ex-international colleague Jamie Heaslip who picked up a back injury in 2017 which ultimately led to his retirement from professional rugby. Throughout his injury, Heaslip remained silent as to his prognosis and the details of his return to play, at one point asserting that;

“I’ve been very clear on my medical information. It’s private.”

Prior to the New Zealand clash, flanker Dan Leavy was ruled out of the contest with what was reported as “general tightness” by the IRFU. Leavy made a similar choice to Murray and Heaslip in relation to the non-disclosure of his medical details prior to the match.

Legislative Basis

With the introduction of the General Data Protection Regulations (the “GDPR”) and the Data Protection Act 2018 (the “Act”) the privacy rights of individuals are afforded much stronger protections and individuals are given more control over how their data is handled and by whom. In the past, a club or coach would release injury updates in press conferences advising the public on the progress of an injured player. Now under the new legislative provisions, we are seeing a change in attitudes.

The IRFU has referenced a “general movement amongst the players controlling their own information”. The trend shows that players are starting to enforce their privacy rights and requesting that their support team remain silent as to injury specifics in order to protect their careers and allow them more scope to negotiate contracts.

As employers, the IRFU or professional clubs are entitled to information about the details of players’ injuries in order to ascertain whether they are capable of performing their jobs and indeed any future employer would be entitled to ask similar questions of prospective players/employees who may be harbouring injuries in circumstances where their fitness is paramount to the performance of their contracts. However, there is no onus on any sportspeople to release any medical details to any other person.

For sports professionals, this privacy can come at a price. With the vacuum created by the lack of information, social media diligently steps in to fill the void. This is normally done with wild speculation as to the nature and extent of the injury which in the best case is inaccurate and in the worst case, highly damaging.

Dangers

The key issue in this regard is that players are seeking to be the ones in control of the information relating to their careers. However, by not releasing any information on injuries it creates the potential for rumour and conjecture to replace the truth, which in turn can cause significant and in some cases irreparable damage to the very right they are seeking to protect.

It leaves a very precarious situation whereby it could be said that the right to privacy in a sporting context is simply a notional one as the reality is dictated by the limitation of damage cause by social media speculation.

For information on the circumstances where employers can ask for information on absences due to illness see our previous blog here.

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