Posts Tagged ‘football helmets’

Innovative sports equipment and safety regulations

Weeding through the hype

There’s an abundance of sports equipment manufacturers coming up with innovative products intended to make contact sports safer. The ongoing concern about concussions, particularly among youth athletes, is a focus and big money maker for many of these manufacturers.

As Eric Berman, an advertising and antitrust attorney, points out in a recent article, manufacturers compete for a share in the market by advertising their products’ safety features. However, the claims made by advertisers and marketers and the science they use to bolster those claims will be scrutinized by both regulators and consumers. Berman’s article discusses the false advertising claims recently being denied by a federal judge in the Riddell Revolution helmet case.

Riddell may have prevailed, but manufacturers will be held to the FTC’s new stringent test data retention requirements. It’s important that advertiser claims are supported by science and that all the documented data, test protocols and records for the clinical studies are maintained.

All that is well and good, but the best way to lower the risk of concussions and other sports-related injuries is through risk management and proper technique training based on credible scientific research. We encourage you to read some of our many articles advocating for risk management policies and concussion education. A perfect example is the Seattle Seahawks’ tackling video, which was released in 2014 as a way to educate coaches and players about their team’s methods of tackling.

Don’t count on technology to provide the safety you can achieve using common sense and proven methods.

Helmet design and concussion prevention

Latest research confirms design makes a difference

Reducing player concussions is a top priority in the world of football. Despite earlier blog postings citing doubts about the protective ability of advanced helmets, the latest research says advances in helmet design can make a huge impact on lowering the number of concussions for football players of all ages.

 The latest research

A recent study was the first to be conducted on the playing field, not in the lab. Two differently-designed Riddell helmets, the VSR4 and the Revolution, were fitted with sensors and tested on nearly 2000 college players over a five-year span. The Riddell Revolution helmets showed a 54 percent reduction in concussion risk compared to the VSR4. Player participants were from schools such as UNC, Virginia Tech and Brown. Data from the sensors, engineered to measure biomechanical head acceleration, was collected from more than one million head impacts.

“The Revolution is slightly bigger and has more padding, with a different shell configuration,” said Stefan Duma, the head of the Virginia Tech–Wake Forest School of Biomedical Engineering and Sciences. Both those elements result in lowered head acceleration, which in turn offers a significantly lower risk of concussion.

It’s not the helmet company, it’s the helmet design

The three elements involved in football concussions are the game rules, the coaching and helmet quality. A weak link in that triple combination raises the risk of concussion.

Riddell’s Revolution was designed 10 years ago, but until 2011 the VSR4 was the preferred helmet of over 50 percent of NFL and college coaches. The VSR4 was designed over 20 years ago. There are newer helmets on the market. Players, parents and coaches should take the time and effort to research a variety of helmet designs and choose the equipment that offers the best head-impact protection.

For more information on lowering concussion risks, please visit Sadler Sports & Recreation Insurance for the concussion resources section of our risk management content.

Source: Loren Grush, “Football helmet design,” foxnews.com, 31 Jan. 2014.

Add-on Helmet Products

Should they be permitted in youth football leagues?

Many youth football teams and leagues are currently using or considering some new products on the market that will modify their existing football helmets with add-on enhancement devices. These include external soft covers such as The Guardian, Shockstrip, or ProCap, internal shock reducers and shock sensors to help to identify concussion candidates. The helmet manufacturers, primarily the big three – Riddell, Rawlings, and Schutt – either don’t recommend the use of these products or have concerns about their use for various reasons.

Many of my youth football insurance clients have asked for my advice on this matter from a risk management perspective. This is a complicated issue with many elements that need to be considered. I can offer my thoughts based on the current information at hand. Please note that this situation is fluid with new developments and statement releases by NOCSAE and governing bodies occurring frequently.

Do add-on devices actually work?

Before getting into the risk management implications, I have to state that I don’t know whether some of these add-on products provide effective concussion protection or not. Each side’s argument  is backed by its own logic and research. The helmet manufacturers state that they are constantly researching new ways to increase concussion protection and have already incorporated all presently proven materials and designs into their existing models. The helmet manufacturers are wary of liability concerns; they could easily be forced into bankruptcy by adverse jury verdicts or not being able to afford liability premiums. As a result, they must follow all protocols and standards closely as regards the law of product liability to preserve their defenses. This requires them to be conservative and risk-adverse about new and unproven ideas and products.

On the other hand, the add-on product manufacturers  are primarily start-ups that are trying to gain market share with innovative new ideas. They are being fueled by the current concussion hysteria  in football and the rush to find a solution to “save the game.” The add-on device manufacturers allege that the big helmet manufacturers are trying to keep them from gaining a foothold by frightening the public as to the safety of their devices and by unduly influencing NOCSAE, The NFL, and other industry associations. See our recent article, “Helmets Preventing Concussions Seen Quashed By NFL.”

The add-on manufacturers and many safety proponents are concerned that the liability roadblocks thrown up by the helmet manufacturers and NOCSAE are hurting the development of player safety. They point out that, from a historical perspective, the independent research and creativity of smaller companies has benefited society with innovative solutions to problems that were thought to be insurmountable, and as a result they should not be stifled. Furthermore, they state that it is the players and parents who should make the decisions about the use of add-on products.

Regardless of which side is correct in this debate (only time and additional research will tell), the following legal and risk management issues are of  importance in a youth football league’s decision about the use of these add-on devices:

  • Voiding the manufacturer’s warranty
  • Voiding NOCSAE certification standard
  • Failure to follow rules or standards of governing or sanctioning body
  • The law of product liability.

Voiding the manufacturer’s warranty

The typical youth football helmet manufacturer’s warranty asserts that the helmet shell and component parts will be free of defects in materials and workmanship for a period ranging from one to three years. Some manufacturers allow the warranty to be extended if the helmet is reconditioned and re-certified to NOCSAE standards every 1 to 2 years. The warranties are subject to a list of voiding factors, such as failure to recondition/ recertify, inserting used replacement liners, use of a face guard or internal or external device not approved by the manufacturer, use of chemicals which may have damaged the shell, excessive drilling, abuse of helmet or unintended use, and removal of the warranty label. Defective products  under the warranty can be returned to the manufacturer for replacement. The warranties disclaim all liability for consequential damage arising from use of the products.

The helmet manufacturers make a big deal out of voiding their warranty as a reason not to use a third party enhancement device.

On the other hand, the add-on manufacturers state that this is not a big deal since the main purpose of the warranty is to replace a broken shell and this rarely happens. Furthermore, some of the add-on product manufacturers offer their own helmet warranty in the event the helmet manufacturer doesn’t honor their own warranty. Another issue is whether the use of an add-on actually voids the manufacturer’s warranty. It depends on the exact wording in the warranty and the nature of the add-on device. It’s almost inconceivable that some add-ons product could damage the helmet shell. One large helmet manufacturer states that they will decide such warranty matters on a case-by-case basis.

It is my opinion that voiding the manufacturer’s warranty is not a big deal for the following reasons:

  1. The financial consequences are not severe because the warranty merely guarantees replacement of the defective helmet part and has nothing to do with liability arising from player injury.
  2. Many add-on product manufacturers provide their own helmet warranty.

Voiding NOCSAE Certification

NOCSAE is a non-profit corporation  formed in 1969 to develop a performance standard for football helmets. The NOCSAE board of directors consists of representatives from associations in the fields of medicine, athletic training, athletic equipment, sporting goods manufacturers, and high schools/colleges. Evidently, the majority of NOCSAE’s operating income comes from sporting goods manufacturers. NOCSAE is conscious of limiting the liability of the manufacturers and promoting the interests of player safety. Their standards are adopted by governing bodies such as NCAA and NFHS.

The NOCSAE football helmet test involves mounting a football helmet (with face mask removed) on a dummy head and dropping it 16 times onto a firm rubber pad from varying heights, contact points, and in various temperatures. Shock measurements are taken to verify that the helmet meets a severity index for concussion tolerance. If it does, the helmet meets the NOCSAE standard. Testing is conducted by the manufacturers prior to the sale of the helmet and afterward by licensed reconditioners. Newly manufactured helmets that pass the test must bear the seal “Meets NOCSAE standards” which must be permanently branded on the outside rear of the helmet. Recertified helmets must bear the NOCSAE seal inside the helmet that reads “This helmet has been RECERTIFIED according to the procedures established to meet the NOCSAE STANDARD.”  It is important to understand that the NOCSAE standard is not a warranty, but simply means that a particular helmet met the standard requirements when it was manufactured or reconditioned.

NOCSAE does not require a helmet to be recertified on a regular basis but recommends that teams/leagues adopt a program of inspection and reconditioning based on a number of factors such as age of players, age of equipment, and usage. NOCSAE does not mandate reconditioning or recertification, but manufacturers may restrict their warranty based on these factors. Any change or modification to the shell or liner from the original manufacturing specifications could alter the performance of the helmet and its performance under the NOCSAE test. However, replacement parts are acceptable if they meet or exceed original manufacturer specifications. The NOCSAE helmet standard does not include the testing of helmets with face masks because they are tested separately. NOCSAE suggests that the original manufacturer be contacted before any materials are applied such as, but not limited to, thinners, paint, wax, solvents, vinyl tape designs, and cleaning agents.

Below is an excerpt from  NOCSAE’S July 16, Press Release:

“The addition of after-market items by anyone that changes or alters the protective system 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, voids the certification of compliance with the NOCSAE standard.”

This ruling likely prompted the Colorado High School Activities Association (CHSAA) to prohibit the use of add-on products during games.

You can also read NOCSAE’s August 7, 2013 Clarification Press Release, which details the helmet manufacturers’ decision on NOCSAE standards being voided.

Pressure from third party manufacturers and safety proponents likely was behind NOCSAE modifying and relaxing it’s original July 16 statement. This new statement  allows the helmet manufacturer to unofficially test the results of its helmet with the add-on device. This statement also makes exceptions for items that are not attached or incorporated (see text below).

Here are some highlights of the August 7, 2013 NOCSAE statement:

The addition of an item(s) to a helmet previously certified without those item(s) creates a new untested model. Whether the add-on product changes the performance or not, the helmet model with the add-on product is no longer “identical in every aspect” to the one originally certified by the manufacturer.

When this happens, the manufacturer which made the original certification has the right, under the NOCSAE standards, to declare its certification void. It also can decide to engage in additional certification testing of the new model and certify the new model with the add-on product, but it is not required to do so.

Companies which make add-on products for football helmets have the right to make their own certification of compliance with the NOCSAE standards on a helmet model, but when that is done, the certification and responsibility for the helmet/third-party product combination would become theirs, (not the helmet manufacturer). That certification would be subject to the same obligations applicable to the original helmet manufacturer regarding certification testing, quality control and quality assurance and licensure with NOCSAE.

Products such as skull caps, headbands, mouth guards, ear inserts or other items that are not attached or incorporated in some way into the helmet are not the types of products that create a new model as defined in the NOCSAE standards and are not items which change the model definition.” (Note: This is not the official position of NOCSAE or any helmet manufacturer but a leading concussion blogger speculates that the exception applies to MC10/Reebok Checklight and Guardian Cap.)

See the April 2013 statement from National Athletic Equipment Reconditioners Association (NAERA) regarding the removal of aftermarket enhancements and related complications during the recertification process:

Based on the latest NOCSAE clarification, the helmet manufacturer has the right to void the original NOCSAE certification for a particular add on product. This being the case, there is legal risk in allowing the use of an add on device on a helmet in a youth football program if an injury and lawsuit results where the helmet manufacturer takes the position that it voided the NOCSAE certification due to the add on  product.

Violation of governing/sanctioning body mandates

Do the use of these add on devices violate the rules of the various governing / sanctioning bodies such as NFHS, American Youth Football, Pop Warner, USA Football?

Most youth football leagues follow the rules of their state version of the NFHS rules and regulations.

The NFHS has not disallowed the use of certain external enhancement devices per their Rules Review Committee Statement, August 2012.  Here is the critical element of their opinion: “In the absence of a clear answer to the “net impact on protection” issue, the decision as to whether to use or not use helmet attachments remains, at the high school level and all other levels, within the discretion of the various teams, coaches, athletes and parents.”

However, as a result of the latest August 7, 2013 NOCSAE clarification, the NFHS may be pressured to reconsider its position and to disallow an add on product should a helmet manufacturer declare that its use voids the original helmet certification.

The NFHS rules can be amended by the various state member associations. For example, the Colorado High School Activities Association (CHSAA) recently prohibited the use of these products during games but not during practice.

It is always safest from a liability perspective to follow the rules of the governing / sanctioning body. Failure to do so will certainly be used against a team or league in a court of law and can be a strong indication of negligence.

Use of add-on products trigger legal defenses for helmet manufacturers

In the event of a serious head or neck injury, the plaintiff’s attorney will likely sue the helmet manufacturer/ distributor; add on product manufacturer / distributor; team / league; individual administrators; coaches, managers, trainers, and referees; and possibly the sanctioning body organization. Each will likely point the finger at the other defendants and will plead all the legal defenses that are available such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver / release, etc.

What does product liability case law say about the legal defenses that are available to helmet manufacturers that may be triggered by the unauthorized use of add on products? Here is a list of such defenses:

  • Improper Use Defense — Helmet was not used in manner intended by helmet manufacturer when plaintiff (injured party) was injured.
  • Product Labeling And Directions Defense – The plaintiff or other responsible parties (parent, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in helmet manufacturer’s materials.
  • Altered Product Defense – The helmet manufacturer is not responsible for plaintiff’s damages if the plaintiff or other party altered the product once it left the helmet manufacturer’s control and furthermore the alterations caused the plaintiff’s injury rather than the original unaltered helmet.

Should add-on products be used due to concussion concerns?

Based on the analysis above, from a legal and risk management perspective, it is safest to follow the recommendations of the helmet manufacturers as regards the use of add on products. If you follow their recommendations, they will be the deepest pocket in the event of a catastrophic head or neck injury in your program. The major helmet manufacturers likely carry a combined General Liability / Excess Liability insurance limit in the range of $10M to $25M. On the other hand, the add on product manufacturers likely carry much lower limits of liability insurance due to their restricted start up budgets.

However, if your sports program is going provide or allow the use of add ons that are declared by the original helmet manufacturer to void the NOCSAE certification, despite the liability risks of doing so, it is recommended that your program carry its own General Liability/Excess Liability policy with combined each occurrence limits of at least $5,000,000 such as the insurance program provided by American Youth Football. In addition, the requirement that players and parents sign an appropriately worded waiver/release agreement that specifically warns of the dangers of violating the manufacturer’s instructions as regards add on products should be considered.  

Additional research may vindicate many of the add on product manufacturers to the point where public demand will force the major helmet manufacturers to accept their products if they are proven to promote safety.

New Football Helmet Warning Label

Riddell helmet warning is response to concussion concerns

A new warning label is being posted on the back of the new Riddell 360 football helmet that reads in part:

NO HELMET CAN PREVENT SERIOUS HEAD OR NECK INJURIES… Contact in football may result in CONCUSSION BRAIN INJURY which no helmet can prevent. Symptoms include: loss of consciousness or riddell-225x300memory, dizziness, headache, nausea, or confusion. If you have symptoms, immediately stop playing and report them to your coach, trainer, and parents. Do not return to a game or practice until all symptoms are gone and you have received MEDICAL CLEARANCE. Ignoring this warning may lead to another and more serious or fatal brain injury.

This new warning label is in response to recent litigation against Riddell by retired NFL players who allege that football manufacturers failed to properly protect them against long-term concussion risks and lied about the company’s ability to reduce head trauma. The new sticker is an attempt by Riddell to provide better information to their consumers.

Will this new sticker be used against Riddell in the current litigation as an admission of fault? Not likely, according to attorneys, since subsequent remedial measures are not allowed to be introduced into evidence under Rule 407 of Federal Rules Of Evidence.

It’s interesting that the warning did not specifically mention the risks of brain injury from cumulative sub-concussive impacts (also known as chronic traumatic encephalopathy or CTE), which is as much of a concern as concussions.

For further reading on helmet safety, research and preventing concussions, click here.

Source: Darren Heitner, Wolfe Law Miami, P.A.