The National Operating Committee on Standards for Athletic Equipment (NOCSAE) has decided [1], in order to "protect the integrity" of its helmet standards, that modification of helmets with third-party after-market add-ons will now be deemed as voiding its certification, which can only be regained if the helmet is retested with the add-on.
The July 16, 2013 announcement, made with little fanfare and no advance warning to the public or interested parties, was greeted with predictable enthusiasm by helmet manufacturers (whose licensing fees fund NOCSAE), but is being heavily criticized, not just by the companies affected, particularly those in the emerging field of helmet impact sensors, but by football safety advocates and at least one national football organization, which see the ruling as a severe setback to their collective efforts to improve concussion safety through technological innovation.
By its plain language, the new NOCSAE rule covers any after-market item that "changes or alters the protective system [of a helmet] by adding or deleting protective padding to the inside or outside of the helmet, or which changes or alters the geometry of the shell or adds mass to the helmet, whether temporary or permanent."
It is thus broad enough, by its terms, to void the NOCSAE certification for helmets to which have a wide array of after-market products have been attached, including clear plastic face shields, decals, chin straps (including Battle Sports' Impact Indicator, and popular football chin straps from Nike and Under Armour), and colored pinnie scrimmage caps.
Its biggest impact, however, is likely to be on the manufacturers of two specific types of products: those making small, lightweight impact sensors designed to be attached to the inside or outside of a helmet, such as Shockbox, Brain Sentry, Safe Brain, and gForce Tracker sensors; and supplemental helmet protective padding products, including Shockstrip, Guardian Cap, and Unequal Technologies' Gyro and Maxx. [Update: On August 7, 2013, Unequal announced via PR Newswire [2] that it had obtained a "clarification" from NOCSAE that, according to Unequal, "because Unequal supplemental head padding in a helmet is not intended to, and does not, permanently attach to the helmet, the use of Unequal product will not void a helmet's certification."]
In just the first two weeks after the ruling was issued, it already appears to be having a profound impact on the manufacturers of after-market products, with some reporting mass cancellations of orders which could drive some out of business. [Update: for the effect the NOCSAE ruling is having on Guardian Cap, and the "Catch-22" the company has found itself in as a result, click here [3]]
It is also likely to have a profound, and some critics say, extremely negative effect on football player safety. While NOCSAE consistently points out that adherence by football helmet manufacturers to its standard - first issued in 1973 and still designed to certify only that the helmet can withstand the high impact forces necessary to fracture a player's skull - is ostensibly voluntary, it is followed by governing bodies at every level of football. NOCSAE's action to void certification for helmets equipped with third-party add-ons and require retesting and recertification is thus likely to make schools and youth football programs extremely reluctant, if not entirely unwilling or legally unable, to allow such add-ons out of liability concerns, with the action coming at the worst possible time, just as programs are gearing up for the 2012 football season.
While a spokesperson for USA Football said the organization does not sanction helmets, and expressed support for the NOCSAE statement, Jon Butler, Executive Director of Pop Warner, however, expressed disappointment at the NOCSAE ruling, at least with respect to the use of helmet impact sensors. "I hope that NOCSAE will reverse their ruling as it is a real step backwards. We have been doing [beta] testing [of impact sensor-equipped helmets], as have many others, and this needs to continue. How can we do testing without kids wearing the [sensor-equipped] helmets?" Butler wondered.
The National Federation of State High School Associations (NFHS), the national governing body for high school football, issued a statement [4] in August 2012 from its Rules Committee saying that, absent a clear answer on the question of the net impact of exterior helmet padding on its protective ability, the decision about their use would remain within the discretion of high school teams, coaches, athletes, and parents. The statement specifically mentioned supplemental helmet padding manufactured by Pro Cap (no longer in business), Guardian Cap, and Shockstrip [5], and did not cover helmet sensors.
Despite repeated requests, NFHS has thus far refused to comment.
It should be noted, however, that Article 1, Rule 1‐5.1.a. of NFHS's rule entitled "Mandatory equipment" which, in pertinent part, requires that a player participate wear a properly fitted helmet "which shall be professionally manufactured and not altered to decrease protection, ... which met the NOCSAE test standard at the time of manufacture." (emphasis supplied). A strict reading of that language would appear to allow a helmet to which a third-party, after-market product has been affixed so long as the alteration does not decrease protection so long as the helmet met the NOCSAE test standard at the time it left the manufacture.
The heaviest criticism of the NOCSAE ruling has come from the manufacturers of helmet sensors, which monitor and measure the force of impacts to the brain during collision sports such as football and are designed to help identify possibly concussed athletes for sideline screening and evaluation, and is seen by many as a technological solution to the problem of chronic underreporting of concussions by athletes.
In a joint email to NOCSAE dated July 25, 2013, a copy of which was furnished to MomsTEAM, the CEOs of three helmet sensor manufacturers (Brain Sentry, Impakt Protective, and gForce Tracker) expressed a number of serious concerns about the NOCSAE position statement.
The CEOs acknowledged at the outset "the difficulty NOCSAE has in maintaining the integrity of its standards, given the development of many new after-market safety related products," which they viewed as the inevitable by-product of a "surge of creative and scientific energy and innovation now addressing the concussion crisis in contact sports," many proposing solutions which hold "significant promise."
While noting that NOCSAE was "uniquely situated, as a safety certification organization, to be a leader in identifying and eliminating potentially harmful products," the three companies expressed concern that, with its position statement, NOCSAE was "throwing away the baby with the bathwater."
"The NOCSAE position statement gives helmet OEMs [Original Equipment Manufacturers] inappropriate veto rights over the certification of third-party sensor technology," they argued, and they questioned how NOCSAE compliance could be gained "without the potentially conflicted participation of the OEM helmet manufacturers," some of whom, as noted by Danny Crossman, CEO of Impakt Protective, Inc., the Canadian company that manufacturers the Shockbox helmet sensor, are testing or in the process of bringing helmet sensor systems of their own to market (such as Riddell, which is in the process of introducing its<"href="/node/6077"> InSite Impact Sensor System or may have them in the product development pipeline.
To avoid having to seek participation of the OEM helmet manufacturers in the NOCSAE certification process, the three CEOs proposed that:
Reached in Texas, where he was attending a football coaches' convention, Crossman said that he not received a response as of yet from NOCSAE to the joint e-mail. "We have nagged NOCSAE," he said, but "it's like hitting against a wall."
Crossman criticized the NOCSAE statement as what he characterized as a "knee jerk reaction" to sensor technology that has been in the market for over two years. He viewed the ruling as being the "direct result of helmet manufacturer lobbying to protect their market" and feared that it would set back concussion research many years. "The release of the statement immediately prior to football season frankly smells," said Crossman. He called for NOCSAE to promulgate a new standard within the next 30 days to allow sensors to be tested on helmets at third-party labs without having to gain helmet manufacturer permission. "This is no different than a visor manufacturer testing a visor on a faceguard.""The position statement in itself is misleading and poorly drafted," said Crossman. "The statement about adding mass is erroneous since even mud, rain or grass adds mass, as do face-guards - which can weigh over half a pound, far more than the 1 ounce of mass added by the Shockbox sensor - which are applied after the helmet is tested. The issue of items affecting helmet reconditioning is a poor excuse since the helmets are vigorously sandblasted and stripped, cleaned and re-painted. If decals and stickers can be removed, so can the tiny Velcro strip that holds the Shockbox in place."
Crossman claimed that Shockbox has been tested in the labs at the helmet manufacturers as recently as April 2013 and shown not to affect the performance. "There have been over 45,000 impact tests with Shockbox in and on helmets by Impakt Protective in our test labs with over 500 youth athletes using Shockbox in clinical research trials. No helmets cracked, no-one was injured, no warranties were voided," Crossman noted.
Greg Merrill, CEO of Brain Sentry, which makes a three-ounce impact sensor attached to the back of a helmet which flashes when an athlete has sustained a heavy hit, alerting teammates, game officials, sideline coaching and medical personnel, even parents in the stands, to watch for signs or symptoms of concussion or prompt a sideline concussion screening.
"The NOCSAE position seems contrary to the safety goals of the organization as I understand them," said Merrill. "Some of the items NOCSAE is potentially blocking absolutely have safety benefits to the participants in these sports. Given the serious nature of brain injury and the challenges sports have in coming up with solutions, NOCSAE needs to find ways to support innovation."
"The NOCSAE position effectively requires 3rd party manufacturers to get manufacturers to agree to including their products in the original equipment manufacturer (OEM) helmet specifications, which in some cases is a business conflict. It seems, at least on the surface, that NOCSAE's position is purely for the benefit of the OEM helmet manufacturers (whose licensing fees constitute the primary source of NOCSAE's funding) without concern for safety of the athletes."
"A more reasonable approach for NOCSAE would be to require that companies that propose after-market attachments have them certified by NOCSAE for each helmet they propose attaching to - without effectively giving OEM helmet companies veto rights to that testing and certification," said Merrill.
Merrill said that "NOCSAE's statement regarding changes to geometry and mass are not consistent with the NOCSAE testing procedures -- in which the helmets are NOT tested with face masks (which obviously changes the geometry and mass of the helmets). NOCSAE knows that some innovative aftermarket helmet attachments, including the Brain Sentry Impact Sensor, have already been tested by NOCSAE test labs and found to have NO adverse effect on helmet performance."
"The NOCSAE position, unfortunately, sets back concussion innovation 20 years," Merrill charged. Specifically, he said, the ruling:
In a statement to MomsTEAM, another of the helmet sensor companies, Canadian-based [6]
"The recent statement released by NOCSAE addresses a couple of very important issues," the company said. "The structural integrity of any helmet is of the utmost importance for the safety of athletes in contact sports. NOCSAE certifies these helmets from the manufacture, [so that] removing padding or modifying the structure of the helmet could be extremely detrimental."
[6]But, said SafeBrain, lightweight helmet sensors are fundamentally different. "According to Dr. Martin Mrazik Clinical Neuropsychologist & NHL/CFL concussion consultant, ‘The best thing we can do for the player with a potential head injury is to provide immediate evaluation...' SafeBrain helps do just that. We have over three years of testing behind our product. We have made certain that our sensor does not change the structural integrity of a helmet. SafeBrain sensors are attached to the helmet using double-sided tape, the weight of the sensor is approximately an ounce and the tiny size of our sensor does not alter the geometry of the shell."
"SafeBrain and the NOCSAE are working towards the same goal, the ultimate protection of our athletes." Because it believed its product was of "immeasurable benefit" to athletes, the company expressed the view that "the ultimate decision [about whether to use it] should be left to the parents of the athletes and the athletes themselves."
Not surprisingly, helmet manufacturers reacted positively to the new NOCSAE rule, although at least one was careful to differentiate between helmet sensor products, like the Shockbox, Brain Sentry, and gForce Tracker, and supplemental impact protection devices, like Guardian Cap.
Schutt. In a statement to MomsTEAM, Robert Erb, CEO of Schutt, said that while "We work with a number of inventors and outside companies to help them understand helmet impact dynamics, we do not certify or approve the use of third party products in our helmets. We make the best protective gear and prefer that nothing be added or subtracted from the manufactured product. When it leaves our facility, it is fully compliant with NOCSAE and other regulatory bodies, and it is fully insured and warranted. A company that seeks to alter the helmet in any way needs to do its own certification under NOCSAE standards and needs to fund its own insurance. This is no different than after-market automotive or electronic enhancements."
Erb noted that Schutt specifically advises purchasers of its helmets that "alterations, additions or component deletions or removals you make to the helmet may void [its] warranty and could adversely affect the protective capabilities of the helmet."
As far as helmet sensors are concerned, Erb said that, while Schutt was "not currently contemplating getting into the electronic sensor business," as its "expertise was in the creation of protective gear and energy management under a variety of temperatures and environments, ... we are always open to working with third-party electronic companies and universities."
Erb stated that "the real underlying question is not whether sensors can be put into helmets, but what data can be relied upon to create a predictive model." He noted that "the epidemiology of concussions is not yet fully understood. There are no laboratory models or FEA models that have proven particularly predictive. And a concussive injury - at least at this stage of scientific inquiry - has far too many variables, including genetic predisposition to injury, environmental factors, and rotational and angular forces, neck girth and strength, player position, and point of impact."
SG Helmets. Ashlee Quintero, National Sales Director for SG Helmets [7], a new lightweight football helmet whose introduction has been met with generally positive reviews, including 4-star rating in the 2013 Virginia Tech STAR ratings [8], told MomsTEAM that SG "concurs with NOCSAE's position on the use of after-market products in the absence of re-certification."
With respect to after-market protective helmet padding, Quintero noted that "SG has spent years designing what we believe to be the safest football helmet on the market" so that the company saw "no need for additional padding, especially because they add weight."
"Our helmet's weight [about half that of other football helmets] is part of its performance and additional weight is unnecessary. Many people have approached us about after-market padding but the truth is we have yet to test such a product with positive results. If there existed a padding or material that we felt could make our helmet safer, it would already be standard in our helmet."
Helmet sensors, however, represented "a different issue than additional padding," said Quintero. "Should someone like to utilize sensors in our helmets that would not negatively affect performance, we would want to verify performance through the appropriate process of internal testing, and then NOCSAE certification. We believe the requirement of additional testing is the best way to protect athletes and their families from what she characterized as 'snake-oil' sales claims."
Rawlings: Kurt Hunzeker, a spokesperson for Rawlings, said the company supported the NOCSAE statement, as it "mirrors what Rawlings outlines in its football helmet warranty," which states that it does not apply in the event of "attachment of incompatible components and attachment of components, not in accordance with Rawlings' instructions."
Did Rawlings believe it was appropriate for NOCSAE to have given helmet manufacturers such as Rawlings control over certification of technology by third-party competitors? Hunzeker said he "did not believe that's the correct question. We the manufacturers are not certifying any after-market accessory carte blanche. We the manufacturers should protect what we have developed and certified via NOCSAE. If any manufacturer works in partnership with an after-market accessory [company], then they can secure 3rd party NOCSAE approval." He cited as an example the NFL helmet communication system, noting that, "Every year, we have sent the NFL 3rd-party NOCSAE approval with installation instructions so the equipment managers can install the communication systems in Rawlings-specific models correctly."
Asked if helmet impact sensors that attach to the inside or outside of a helmet shell with adhesive, even if weighing between less than an ounce and 3.5 ounces, would affect the integrity/structure of the Rawlings helmet in any way, Hunzeker's response left no wiggle room: "Any non-approved adhesives could potentially comprise the integrity of the paint, and thus the helmet. Weight is irrelevant."
Think that the way in which a football helmet is painted doesn't need to go through the NOCSAE certification process? Think again, said Hunzeker. "You should see the process to get every single color helmet approved by NOCSAE. Some collegiate schools have a unique color - think Notre Dame gold vs. Purdue gold - and every time we get a new custom color order, we go through NOCSAE for certification.
"I believe a number of decal companies are approved (3M comes to mind); what this protects against is a single consumer using some craft store adhesive to affix something on their helmet. Or preventing them from using regular paint to "update" their helmet.
"You should see what we see," he said.
Riddell: Erin Griffin, Senior Communications Manager for Riddell, provided the following statement on Riddell's reaction to the NOCSAE ruling: "Riddell's primary mission has always been, and continues to be, providing the best protective football headgear to the athlete. We distribute our helmets with on-product labels and users guides stating, "Do not modify, change or alter this helmet in any way." We recommend against any alterations that change the fit, form or function of our helmets. With respect to questions about whether modifications void Riddell's helmet warranty, we review warranty inquiries on a case-by-case basis."
Xenith: Due to what it said were summer vacation schedules, Xenith has thus far declined to comment on the new NOCSAE rule.
On its website, NOCSAE says its helmet performance standards are "based on accepted and recognized scientific data." But NOCSAE's rule de-certifying helmets with third-party add-on products, unless they have been re-certified by the helmet companies, to whom the third-party company would have to go for testing, cites no data suggesting, much less establishing, any instance in which such third-party product actually did what NOCSAE, and presumably the helmet manufacturers, assume they are doing: change or alter the protective effect of the helmet.
It is one thing to say, as did Rawlings and Schutt, that the addition of third-party after-market products to their helmets might void the limited warranties they extend to end-users, but it could be another to require third-party manufacturers of concussion risk reduction equipment to obtain NOCSAE certification from helmet manufacturers under a standard that, it freely acknowledges, does not test a helmet's ability to attenuate concussion risk but continues, as it has since being first established in 1973, to insure only that helmets protect against the wearer's head against the extremely high-level force that would otherwise fracture skulls.
Leaving aside serious questions which have been raised - by me [5] and by others - about the validity of claims made by some of the supplemental padding companies about their effectiveness in reducing concussion risk, one thing is clear: they aren't intended to provide additional protection against skull fractures. Nor are helmet sensors products designed to provide any additional protection; they are intended to help those standing on the sports sideline identify athletes who have sustained hits that may warrant closer observation for signs or symptoms of concussion [9] or removal from play in order to conduct a sideline evaluation using one or more available screening tools (e.g. SAC [10], SCAT3 [11], Maddocks questions, King-Devick [12], BESS [13]).
As Mike Oliver, NOCSAE's longtime executive director and general counsel, noted in an extended comment to a December 2012 article [14]on new helmet technology in Popular Science magazine, "Manufacturers regularly make football helmets that exceed the performance requirements under the NOCSAE standard. Exceeding the requirements of the NOCSAE standard is done in part for statistical quality assurance reasons so that even with 3 standard deviations applied, a helmet's performance would still meet the NOCSAE standard."
To be sure, that is not the same as saying that the added weight of a supplemental padding product could not seriously and adversely affect the performance characteristics of a football helmet, as Oliver noted in January 2011 interview with knoxnews.com [15] in which he pointed to research which showed that bigger and heavier helmets could lead to increased number of other injuries.
Not all experts, though, agree with Oliver's assessment. Asked whether he thought a helmet sensor weighing anywhere between less than an ounce (SafeBrain) and 3.5 ounces (Shockbox) affixed to a football helmet with adhesive tape was likely to so degrade the ability of a 4-plus pound football helmet to withstand the extremely high impact forces required to cause a skull fracture, Albert King, Ph.D., Chair of the Department of Biomechanics at Wayne State University, told MomsTEAM he thought that unless "you need to drill into the helmet, it should be okay." "I think this is more of a legal issue than a biomechanical issue," King said.
According to Impakt Protective's Crossman, "we, along with other sensor companies - Brain Safe and GForce Tracker - have data galore showing they are safe and meet the NOCSAE standards. We even have data from testing in the Schutt labs." What data exists about supplemental helmet padding products (Guardian Cap) appears to show the same thing.
Such evidence thus again begs the question: what scientific evidence gives NOCSAE even a reasonable suspicion that such products could so degrade the helmet's ability to meet the NOCSAE standard that it would no longer pass muster under a standard, that while tightened since first issued in 1973, is, by Oliver's own admission, extremely easy to meet?
On its face, the NOCSAE statement makes no mention of liability concerns; only that the new rule was intended to "protect the integrity of the NOCSAE standards." But is reasonable to assume - especially in the super-heated legal climate in which the NFL, the NCAA, and the helmet companies are currently operating - that, while unstated, NOCSAE's ruling was motivated, at least in part, by liability concerns.
As a October 20, 2010 New York Times article by Alan Schwarz about NOCSAE certification [16] points out, the primary defense against legal liability for school districts and helmet manufacturers when a player sustains a head injury and sues them for civil damages has usually been that the helmet met the NOCSAE standard. In a follow-up article for the Times [17] the next day, Dr. Bob Cantu, a leading concussion expert and then, as now, a Vice President of NOCSAE, admitted to Schwarz that NOCSAE had become as concerned about legal liability as about child safety. "If NOCSAE were to supplement its helmet standard in an attempt to address concussions, it could open itself to lawsuits brought by players saying that their helmet did not prevent injury," says the article.
"Manufacturers and schools, equipment managers and the coaches - the whole football industry - don't want to go after or even criticize the security blanket of Nocsae," Sander Reynolds, vice president of product development for Xenith, told the Times in 2010. "If there's a lawsuit, they all look to Nocsae to say, ‘Hey, see, the product met the set standards.' They're all ultimately on the same side when it comes to liability." In his view, "Nocsae exists for two reasons - to avoid skull fractures, and to avoid liability.'"
It thus seems reasonable to assume that one reason for the NOCSAE rule was to provide helmet manufacturers legal cover. In the event of a lawsuit against a helmet manufacturer for injury suffered by a player wearing a helmet which has been modified with an after-market add-on product, whether it be a supplemental padding product or lightweight sensor, the NOCSAE ruling will likely allow a helmet manufacturer to argue that, but for the modification, its helmet would have continued to perform as designed, thus potentially shifting liability to the manufacturer of the add-on. (Although it should be noted that, in order to establish that the add-on was what tort law refers to as the "proximate cause of injury," the plaintiff would still need to offer evidence that the addition somehow changed or altered the performance characteristics of the helmet, which, as noted above, will likely to be difficult to prove).
For those who fear that the NOCSAE ruling could have a potentially devastating effect on concussion product innovation, at least by companies other than the helmet manufacturers themselves, history appears to lend credence to such concerns.
"What was once a rather staid industry dominated by a few large companies has now grown to include an increasing number of upstart firms, serial entrepreneurs, and individual inventors," notes the December 2012 article on PopSci.com. "The result has been a proliferation of new designs. Mainstream helmet makers have stuck with variations on previous models: polycarbonate shells filled with various densities and thicknesses of padding. Newcomers have developed more creative, albeit less rigorously tested, approaches."
One of the reasons helmet companies may not want the upstarts to succeed is that "current safety standards don't require the companies to do anything more than what they're already doing." According to the article, "It's a criticism privately echoed by most helmet researchers. Simplistic certification standards provide convenient legal cover for the manufacturers. If NOCSAE certifies a company's helmets as safe, then the company has less risk of being held responsible for injuries. On the other hand, if that same company goes above and beyond the standards, it could put itself at risk of getting sued. Suddenly all of its existing helmets would appear to be inadequate, and worse, the company might have to admit knowing that they fell short."
As Blaine Hoshizaki, a biomechanics professor at the University of Ottawa and the recipient of a grant from NOCSAE to develop a new helmet standard that incorporates rotational acceleration, told Pop Sci, "If they could make a safer helmet, they would. I don't think they are against it, they're just making sure they don't cross that line and say, ‘Yeah, we should be managing rotation,' because that would bring up liability issues.' With a new standard, that roadblock would vanish."
To NOCSAE's critics, the situation is both harmful and backward. Niklas Steenberg is CEO of MIPS (Multidirectional Impact Protection System), a Swedish company which is testing helmets that utilize a layer of molded plastic attached with small rubber straps sitting between the helmet padding and the head which allow a player's head to float during an impact, eliminating in theory some of the rotational force believed to be most responsible for concussion before it makes its way to the brain.
"If something is available that makes your helmet more safe, you should be held liable for not using it," he says.
As the Popular Science article points out, "it's not the first time a new safety technology has faced such a paradox. All too often implementation hangs on the grim calculus of whether the cost to industry of adopting a safety measure is more or less than the cost to the public of going without it. When liability enters the equation, lawyers and judges and lawmakers get involved, and even the most urgent matters can end up mired in argument. It took more than a decade to legislate seat belts as standard equipment in automobiles." As the article notes, with a degree of irony, "the two companies that first popularized and implemented seat-belt standards were Saab and Volvo, both Swedish.
The same line of reasoning is advanced by Alan Schwarz in his October 20, 2010 article for the Times article on NOCSAE: "[B]ecause football helmets have already prevented deaths so effectively for decades, and because football's faster and more violent environment leaves biomechanists unsure of how to prevent concussion in the sport, Nocsae has not asked helmet makers to even try," the article observes. "When you have something that has worked well for a lot of years, you have to be pretty cautious," Oliver told the Times.
The result, says the PopSci.com article is that "unclear science makes for unclear standards, and unclear standards leave a lot of room for interpretation. The impact on the helmet industry is conspicuous. It's become a free-for-all."
Which raises the question: is the NOCSAE ruling intended to rein in that free-for-all?
Impakt Protective's Crossman, for one, is concerned that the NOCSAE statement was motivated less than by technical merit than by "anti-competitive" reasons.
Oliver acknowledged in a lengthy interview with MomsTEAM that the NOCSAE ruling meant that the third-party, after-market, add-on product manufacturers would "have to get with the helmet companies" for testing and certification." It thus could be argued that NOCSAE, by setting up the helmet manufacturers as the gatekeepers to certification of third-party products, has applied the brakes, at least in the short-term, on competition in the burgeoning industry so aptly characterized by investigative journalist Irv Muchnick as "Concussion Inc."
By suddenly imposing - literally at the 11th hour, just as youth and high school football pre-season is starting around the country - a cumbersome, time consuming, and extremely expensive process that it knows or reasonably should know full well won't be complete until the 2014 football season, it could be argued that NOCSAE's ruling will have the effect of raising significant economic barriers to entry into, or to remaining in, the market for after-market concussion protection and identification equipment.
As a 2008 George Mason University Law Review article (1) explains:
because standard-setting at its core poses a risk of improper collusion, antitrust law has a long history of application in the context of standard-setting organizations. ... Antitrust law has an important role to play in governing both collusive and unilateral misconduct in the standard-setting process. Such misconduct can cause extensive harm to consumer welfare by undermining the reliability and viability of standard-setting, raising the costs of goods, and slowing innovation. Given the degree and extent of the potential harm, the consequences for such misconduct should be severe, including the award of treble damages to injured parties and the loss of the right to enforce the IPRs at issue. Courts and federal agencies addressing standard-setting abuses have recognized this fact in a long string of antitrust cases that have sought to punish patent holders for misappropriating the monopoly power created by the standard-setting process. As the need for standardization increases with each new generation of technological advances, applying antitrust law to address such misconduct is crucial to protecting consumer welfare and fostering innovation.
Indeed, as the same law review article points out, private standard-setting organizations such as NOCSAE has historically been subject to antitrust scrutiny. (2)
Statements like those from Rawlings' spokesperson Hunzinger implying that a helmet manufacturer might only work to secure 3rd party NOCSAE approval for companies with whom it "works in partnership," coupled with evidence from the helmet sensor and supplemental helmet padding companies that their attempts to obtain NOCSAE certification have been repeatedly rebuffed, suggests in such context at least the possibility that the fear expressed by the helmet sensor CEOs in their joint e-mail to NOCSAE - that the position statement gives potentially conflicted helmet OEMs "inappropriate veto rights over the certification of third-party sensor technology" - may have some merit.
Of course, that is not to say that any restraint on competition, if there is one, rises to the level of constituting an "unreasonable" restraint on trade so as to violate the antitrust laws.
So where do we go from here?
As someone who has been writing about and following the concussion issue for many years, and as the producer and director of the new high school football concussion documentary, "The Smartest Team: Making High School Football Safer" [18], I have been in the unique
position of having direct, first-hand experience with helmet impact sensor technology, and of having addressed the issue of whether the addition of such sensors to a football helmet would likely void the NOCSAE certification and manufacturer's warranty.
After following closely developments in the impact sensor area for a number of years, and believing that this cutting edge technology had the potential to revolutionize the sideline identification of concussion in contact and collision sports, our plan in the summer of 2012 was to equip new Schutt football helmets worn by a number of football players on the Newcastle, Oklahoma high school team with Shockbox sensors so we could film and beta test the sensors over the course of the 2012 season.
When liability and warranty concerns were raised, both by the school's attorney and by Schutt, we moved swiftly to address them by having a Shockbox-equipped Schutt helmet drop-tested at Schutt's testing facility. When the testing showed that the insertion of the 3 1/2 ounce sensor in between the interior padding of the Schutt helmet did not in any way effect its performance characteristics, Schutt was able to assure the school that the helmet modification did not void its warranty, and we were able to proceed with the beta test.
While only a limited number of helmets were retrofitted with the Shockbox sensor, the results of our beta test were very encouraging:
I am not a scientist, nor a biomechanical engineer. As such, I recognize and appreciate that there are some in the concussion community, especially scientists who by their very nature are appropriately cautious in endorsing any new technology without validation via rigorous, peer-reviewed testing, and some of the helmet manufacturers themselves (see Schutt statement above), who believe that impact sensor technology has not advanced sufficiently to warrant widespread use in contact and collision sports.
But I also know that there are others - MomsTEAM included - who believe that impact sensors, despite being a brand new and developing technology, can improve player safety in a number of important ways right now:
As for supplemental helmet padding manufacturers, their claims that their products reduce the risk of or prevent concussions have come in for criticism, much of it justifiable, from the Federal Trade Commission, members of Congress, the scientific community, and by MomsTEAM.
But criticizing them for their marketing tactics or for, in the words of SG Helmet's Ashlee Quintero, being "snake oil salesmen," is not the same as criticizing them for at least attempting to come up with technology to do just that.
In the final analysis, while NOCSAE has every right to protect the integrity of its standards, it should be up to market to determine winners and losers, with as little government or private interference in that process as possible, so that the best company with the best technology wins. That's called free enterprise.
It is unlikely that the new NOCSAE ruling will bring technological innovation to a screeching halt. Hopefully, it will be no more than a speed bump on the road to improved player safety.
In the meantime, it should be up to schools, coaches, parents, athletic trainers, team doctors, and the athletes themselves to weigh the benefits and risks of supplemental helmet padding and helmet sensors, and make the decision that is most likely to improve player safety, NOCSAE certification or no.
Editor's Note: Less than a month after NOCSAE issued the ruling that is the subject of this article, it clarified its position. For an article discussing that clarification, click here [22]. For two blog posts in which Brooke de Lench discusses the possible impact of the NOCSAE ruling and clarification, click here [23] and here [24].
Brooke de Lench is Executive Director of the MomsTEAM Institute, Founder and Publisher of MomsTEAM.com, and producer and director of "The Smartest Team: Making High School Football Safer [18]," which first aired on selected PBS stations across the country in the Fall 2013, and will be coming to most PBS stations in the Fall of 2014. For more information about the documentary, click here [18]. Brooke is also author of Home Team Advantage: The Critical Role of Mothers in Youth Sports. An active speaker on youth sports safety and concussion issues, you can follow Brooke on Twitter @brookedelench and reach her by email at: delench@momsteam.com [25].
1. Cary GS, Work-Dembowski LC, Hayes PC. Antitrust Implications of Abuse of Standard-Setting. Geo Mason L. Rev. 2008;15(5):1241-1263.
2. See Broadcom v. Qualcomm, 501 F.3d 297, 308 (3d Cir. 2007) (citing Allied Tube & Conduit v. Indian Head, Inc., 486 U.S. 492, 500 (1988); Am. Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571 (1982) ("Private standards-determining organizations, in contrast to legislative or quasi-legislative bodies, have historically been subject to antitrust scrutiny.").
3. Register-Mihalik JK, Guskiewicz KM, Valovich McLeod TC, Linnan LA, Meuller FO, Marshall SW. Knowledge, Attitude, and Concussion-Reporting Behaviors Among High School Athletes: A Preliminary Study. J Ath Tr. 2013;48(3):000-000. DOI:10.4085/1062-6050-48.3.20 (published online ahead of print)
4. Greenwald R, Chu J, Beckwith J, Crisco J. A Proposed Method to Reduce Underreporting of Brain Injury in Sports. Clin J Sport Med 2012; 22(2):83-85.
5. Kutcher J, McCrory, Davis G, et al. What evidence exists for new strategies or technologies in the diagnosis of sports concussion and assessment of recovery? Br J Sports Med 2013;47:299-303 ("development of easily deployable sport equipment-based accelerometer systems ... provide[s] two unique and potentially useful, clinical opportunities": the ability to monitor impacts for the presence of an acute injury-generating hit, and from the potential advantage of accurately cataloguing the number of hits and post-impact head acceleration being experienced by an athlete over time).
The invaluable contribution of MomsTEAM Senior Health & Safety Editor Lindsey Barton Straus in the preparation of and research for this article is gratefully acknowledged.
Posted July 31, 2013; updated August 6, 2013 to correct the weight of the Shockbox sensor, which is 1 ounce, not 3 1/2; updated August 7, 2013 to include NOCSAE's "clarification" regarding use of Unequal Technologies' supplemental padding products, and on August 18, 2013 to add information about the NFHS helmet rule.
Links:
[1] http://nocsae.org/wp-content/uploads/2013/07/Third-party-add-on-statement-with-letterhead.pdf
[2] http://www.prnewswire.com/news-releases/nocsae-clarifies-statement-concerning-certification-of-helmets-using-unequal-technologies-supplemental-head-padding-218655091.html
[3] http://www.nfl.com/news/story/0ap1000000223873/article/guardian-cap-caught-in-catch22-after-nocsae-statement
[4] http://www.piaa.org/assets/web/documents/NFHS_Helemt_Accessory_Statement_8-24-12.pdf
[5] https://www.momsteam.com/node/5379
[6] http://www.safebrain.ca/
[7] http://sghelmets.com/
[8] https://www.momsteam.com/node/4789
[9] https://www.momsteam.com/node/149
[10] https://www.momsteam.com/node/215
[11] https://www.momsteam.com/node/1335
[12] https://www.momsteam.com/node/6204
[13] https://www.momsteam.com/node/221
[14] http://www.popsci.com/science/article/2012-12/helmet-wars-and-new-helmet-could-protect-us-all?single-page-view=true
[15] (http://www.knoxnews.com/news/2011/jan/16/helmet-safety-ftc-focuse-sports-headwear-co-found/?print=1
[16] http://www.nytimes.com/2010/10/21/sports/football/21helmets.html?emc=eta1&_r=1&
[17] http://www.bendbulletin.com/article/20101021/NEWS0107/10210392/
[18] http://www.thesmartestteam.com
[19] https://www.momsteam.com/node/4492
[20] https://www.momsteam.com/node/4804
[21] https://www.momsteam.com/node/6349
[22] https://www.momsteam.com/node/6485
[23] https://www.momsteam.com/node/6496
[24] https://www.momsteam.com/node/6450
[25] mailto:delench@momsteam.com
[26] https://www.momsteam.com/health-safety/nocsae-clarifies-stance-voiding-helmet-certification-with-add-ons
[27] https://www.momsteam.com/concussions/impact-sensors-frequently-asked-questions
[28] https://www.momsteam.com/health-safety/impact-sensors-benefits-real-time-monitoring-are-many
[29] https://www.momsteam.com/problem-underreporting-concussions-helmet-sensors-solution-to-problem
[30] https://www.momsteam.com/health-safety/sports-concussion-safety/news-studies/underreporting-concussion-by-high-school-athlete
[31] https://www.momsteam.com/health-safety/culture-resistance-self-reporting-concussions-study-finds
[32] https://www.momsteam.com/sub-concussive/sub-concussive-hits-growing-concern-in-youth-sports
[33] https://www.momsteam.com/health-safety/seven-ways-to-reduce-risk-of-brain-trauma-in-contact-and-collision-sports
[34] https://www.momsteam.com/health-safety/six-pillars-concussion-risk-management-momsteam-approach