Anti-competitive effect?
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.
Hit sensors: a promising emerging technology
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", 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:
- Newcastle's athletic trainer, Damon Glass, ATC, told me that the sensors were "the next best thing to being inside the [players'] brain basically and seeing the hit, because if I don't know whether it happens, there's lots of times I've been away from the play and never saw it, and I don't know if they've taken a hit or not. So it's gonna be the best thing for me to have a tool, you know, to assess them if they do take a big hit."
- One of the Newcastle players, Collin Black, admitted to me that, "A lot of the guys, they don't want to come out when they get a concussion, and they know they have one, so the sensors, they don't really give them an option. When that sensor goes off, you got hit hard and the coaches are gonna pull you out no matter what. You can't hide it from them."
- Another, Sheldon Dillman, said, "Previously, if you got hit and you were just pumped with adrenaline, you might not even feel it until the next quarter. So now at least, you know, if you get hit and the athletic director gets an alert, then they know, hey you need to take a break. That'll do a big part in football."
- And a third Newcastle Racer, Chase Prudhome, told me he was glad that the sensors were being used: "It's helped a lot of kids out. We've actually had two of the kids come out of the game with their helmets going off, and they really did have a bad concussion. When the sensors went off, we have a girl that's always on the iPad waiting for the sensors to go off, and she goes over to our trainer, which goes to the coaches and they get them off the field as quickly as possible."
- Many of the players, in a private conversation the day I went duck hunting with them, told me quite frankly, that "we do not want to have the responsibility of reporting our concussions any longer. We want the sensors."
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:
- By helping to identify athletes who continue to participate in contact sports despite suffering undiagnosed concussion;
- By providing data that can help in research into the effects of sub-concussive impacts;
- By helping to address the problem of chronic underreporting of concussion; and
- By providing a way to help take the athlete's ego and attitudes about concussion (3) out of the reporting process, thereby making sports safer.
Let market and consumers decide
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. For two blog posts in which Brooke de Lench discusses the possible impact of the NOCSAE ruling and clarification, click here and here.
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," 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. 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.
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.
