In July 2013, the National Operating Committee on Standards for Athletic Equipment ("NOCSAE") published a press release on its website stating that football helmets equipped with add-on products that were not originally affixed to the helmet during lab testing "void[ ] ... the helmet manufacturers'] certification of compliance with the NOCSAE standard."
In August 2013, amid growing inquiries from coaches, parents, and school boards about how third-party helmet add-ons affected helmet certification, NOCSAE clarified its July 2013 statement. Instead of deciding that an addition to a helmet automatically rendered the manufacturers' certification void, NOCSAE said (1) it would leave up to the helmet manufacturers themselves to decide whether a particular third-party add-on affixed to the helmet, such as an impact sensor, voided its own certification of compliance with the performance safety standards set by NOCSAE with which manufacturers voluntarily certify compliance; (2) that they could decide to engage in additional certification testing of the new model and certify the new model with the add-on product, but was not required to do so; (3) that it would allow manufacturers of add-on products for football helmets to make their own certification of compliance with its standard, as long as the certification testing was done according to NOCSAE standards and the add-on manufacturer assumed potential legal liability for the helmet/add-on combination; and (4) that products not attached or incorporated in some way into the helmet, such as skull caps, headbands, mouth guards, ear buds, and other items. such as the Guardian Cap, would be exempted from coverage.
I was concerned at the time, as were others, that NOCSAE's decision had the potential to empower football helmet manufacturers to act as third-party technology gatekeepers, a power the manufacturers denied it gave them. As MomsTEAM Senior Editor, Lindsey Barton Straus and I suggest in an article published last week in the Journal of Business & Technology Law, the move also raised possible antitrust concerns. The fact that the Federal Trade Commission reportedly asked NOCSAE to produce documents pertaining to the certification process for third-party add-on products gave at least some credence to those concerns.
Despite the fact that the NOCSAE clarification exempted add-on products such as Guardian Cap from having to be re-tested with helmets to determine whether the addition of such add-ons caused the helmet/add-on combination to fail the safety standard set by NOCSAE,
I agreed with the core focus being on NOCSAE and how its strategic statements in Summer 2013 created a windfall for the budding add-on industry that still exists today. This powerful statement summed it up: "In effect, NOCSAE's decision empowers helmet manufacturers to act as thirdparty technology gatekeepers."
The only recommendation that we would have as you continue your research and writing is to look a little deeper into the actual legal responsibility side of things. While we respect Mr. Sadler's opinion that the OEM helmet manufacturer could be "off the hook" if a league is using an add-on such as ours, we've heard from numerous attorneys as well as the legal departments of the universities who implement our product that a) it won't be that simple and b) legal precedence in other industries (such as automotive industry) does not support that theory. The precedence shows that the jury only sides with the OEM manufacturer if they can prove that the add-on or alteration causes the OEM product to become more dangerous, or less safe.
In addition, NOCSAE's recent statements re: Warrior and Cascade helped to establish precedence for this industry and it follows the same lines. The helmets' certifications were voided only after it was shown thru test data that they no longer met the NOCSAE standard. Establishing this as a criteria for a helmet to be decertified is a key distinction as it forces an OEM manufacturer to present test data that when they added the sensor, liner, cover, etc. to their helmet, the helmet no longer met the standard in order to be "off the hook" in a catastrophic injury lawsuit.
Just like Brain Sentry and Shockbox, we have a wealth of data that shows numerous brands and models of helmets exceeding the NOCSAE standard when equipped with a Guardian Cap. We're just waiting for data from Riddell, Schutt, etc. that shows their helmet with our Guardian Cap failing the standard to back up their statements of threatened voided certification. In the meantime, when the consumer is left to sift through these grey areas of legal nuance, helmet manufacturers that directly contact hundreds of customers and potential customers to threaten them that they'll be "more liable" is not only erroneous but also potentially illegal.
MomsTeam can play a big role here as you continue to shine a light on the truth behind all of the intricate layers that have been instituted since 1969. We urge you to continue your work and to take a deeper look into the legal responsibility side because the fact remains: add-ons are not helmets in themselves and shouldn't have to meet a standard for a helmet; add-on manufacturers simply must demonstrate that the helmet's existing certification is unaffected in order for consumers to feel comfortable implementing the product. We feel that we have done this and hope that MomsTeam will continue to be a voice for the smaller companies. Our voices are getting drowned out in the marketplace by the multimillion dollar companies.
