Source: sadlersports.com - Should Youth Football Leagues Allow Add On Helmet Products?
Author: John Sadler
Do Add On Devices Actually Work?
Many youth football teams / leagues are currently using or are considering some new products on the market that will modify their existing football helmets with add on “enhancement devices” including 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 do not 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 that has many elements that need to be considered. I will provide 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.
Before getting into the risk management implications, I would first like to state that I don’t know whether some of these add on products provide effective concussion protection or not. Each side has its own argument that 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 very wary of liability concerns as they could easily be forced into bankruptcy by adverse jury verdicts or by not being able to afford liability premiums. As a result, they must strictly follow all protocols and standards as regards the law of product liability to preserve their defenses. This requires them to be conservative and risk adverse as regards new and unproven ideas and products.
On the other hand, the manufacturers of add on products are primarily start ups that are trying to rapidly gain market share with innovative new ideas as regards materials and designs. They are being fueled by the current hysteria over the concussion problem 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 regards the safety of their devices and by unduly influencing NOCSAE, The NFL, and other industry associations to do the same. See recent article entitled “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 benefitted 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 current 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, and 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 depending on the manufacturer. Some manufacturers allow the warranty to be extended if the helmet is reconditioned and recertified to NOCSAE standards every 1 – 2 years. The warranties are subject to a list of voiding factors such as failure to recondition / recertify every 1 – 2 years, inserting used replacement liners, use of a faceguard 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. Products that are defective 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 happens rarely. Furthermore, some of the add on product manufacturers offer their own helmet warranty in the event that the helmet manufacturer does not honor their own warranty. Another issue is does the use of an add on actually void the manufacturer’s warranty? It depends on the exact wording in the warranty and the nature of the add on device. For some add on products, it is almost inconceivable how their product could damage the helmet shell. One large helmet manufacturer states that they will decide these 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 ($100 to $400 max for entire helmet) and has nothing to do with liability arising from player injury, and 2) many add on product manufacturers provide their own helmet warranty.
Voiding NOCSAE Certification
NOCSAE is a not for profit corporation that was 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 school / college. Evidently, the majority of NOCSAE’s operating income comes from the sporting goods manufacturers and NOCSAE is very conscious of limiting the liability of the manufacturers in addition to 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 facemask removed) on a dummy head and dropping it 16 times onto a firm rubber pad under varying distances, contact points, and temperatures. Shock measurements are taken to verify that the helmet meets a severity index for concussion tolerance and if so, the helmet meets the NOCSAE standard. The testing is conducted by the manufacturers prior to the sale of the helmet and by licensed reconditioners thereafter. Newly manufactured helmets which pass the test must bear the seal, “Meets NOCSAE standards” which must be permanently branded on the outside rear of the helmet. Reconditioned helmets which pass the recertification must bear the following NOCSAE seal inside the helmet “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, it 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 that meets the needs of such team/league 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 since the NOCSAE test is based upon the configuration of the helmet when it was manufactured without any modification or alteration. 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 facemasks as they are separately tested. 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, cleaning agents, etc.
NOCASE’S July 16, Press Release After Market Products Void The NOCSAE Standard
“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.
NOCSAE’s August 7, 2013 Clarification Press Release States Helmet Manufacturers Decide If NOCSAE Standard Voided
In a change of position likely due to pressure from third party manufacturers and safety proponents, NOCSAE modified and relaxed it original July 16 statement to allow the original helmet manufacturer to decide if an add on product voids the original certification. This new statement also 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 April 2013 statement from National Athletic Equipment Reconditioners Association (NAERA) as regards 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 Players, Parents, Teams, and Leagues Use Add On Products 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.
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