A new ruling by a federal judge upholds the ability of the National Operating Committee on Standards for Athletic Equipment (NOCSAE) to influence the sale of helmets and related products.
On Apr. 22, Judge Gershwin Drain of Michigan’s Eastern Federal District Court dismissed a lawsuit brought by Mayfield Athletics, seller of a football helmet shock absorber called SAFE Clip. “SAFE” stands for “shock absorbing football equipment.” The product, small plastic clips that screw into regulation helmets and hold the facemask, purportedly “allow the facemask to slightly move backwards and absorb impact forces through a shock absorbing insert” and “reduces the impact to the head and may help to prevent injury.”
Mayfield contends that NOCSAE has unlawfully conspired with a handful of football helmet manufacturers—including Riddell, Schutt Sports, Xenith and other named co-defendants—to control nearly 100% of the market for football helmets and add-ons.
Judge Drain, 72, might be uniquely well-situated to preside over this case. During the late 1960s, he was a starting defensive back for the Western Michigan Broncos before attending the University of Michigan Law School. He told Legal News last year he holds the “the unique distinction of never intercepting a pass” as a college defensive back. Drain light-heartedly rejected the possibility that it was because quarterbacks were afraid to throw near him.
NOCSAE is a non-profit organization that sets safety standards for athletic equipment in football, baseball, lacrosse and other sports. With an overarching goal of preventing neurological trauma and other injuries, it requires third-party certification of compliance for sports equipment to meet NOCSAE safety benchmarks. Although NOCSAE is not a government entity and no product “must” bear NOCSAE-certification for retail, most football regulatory bodies—including youth leagues, the NCAA and NFL—require that helmets satisfy NOCSAE standards.
As Mayfield sees it, the absence of meeting NOCSAE standards for a product is tantamount to the “almost entire exclus[ion]” of that product from the marketplace. “Football helmets,” the complaint charged, “that do not meet NOCSAE standards, and football helmet Add-ons for which NOCSAE does not create standards, are almost entirely excluded from the respective markets for football helmets and football helmet Addons . . . [this alleged dynamic] allows Helmet Manufacturer Defendants to maintain higher prices for football helmets and reconditioning parts.” The complaint further posited consumer harm. “The exclusion of Add-ons encourage consumers to purchase new helmets rather than reconditioning their current helmets, thus increasing Helmet Manufacturer Defendants’ revenue by imposing higher costs on consumers.” This alleged behavior is meaningful, Mayfield’s attorneys write, because (in their view), “NOCSAE’s standards and representations . . . provide it with significant influence over purchasers of football helmets and football helmet Add-ons.”
Mayfield’s specific grievance concerns how NOCSAE addresses add-on products to already certified helmets. NOCSAE’s core objection to such add-ons is that they morph a certified helmet into a new product that was neither tested nor certified. In 2018, NOCSAE announced that add-on manufacturers (including Mayfield) could no longer independently acquire NOCSAE certification for helmet add-on combinations. Moreover, helmet manufacturers, per established NOCSAE policy, can declare its certification void should they worry about add-ons. As Mayfield sees it, NOCSAE and helmet manufacturers are violating the Sherman Antitrust Act and other laws by conspiring to interfere with SAFE Clip sales.
Judge Drain rejected this argument, noting that NOCSAE’s 2018 policy statement didn’t change the ability of helmet manufacturers to declare their certifications void or to take any particular action—each manufacturer could independently (and thus not as a supposed conspirator) do what it wanted. He further reasoned that Mayfield couldn’t show there was an actual agreement or sufficient circumstantial evidence, such as communications or media statements, “to exclude the possibility of independent conduct [by NOCSAE and certified helmet manufacturers].”
Mayfield’s other claims also failed to persuade Judge Drain. The company asserts that NOCSAE and helmet manufacturers have intentionally interfered with Mayfield’s “ongoing business relationships and business expectancies with football teams, football players, football equipment distributors and other purchasers of football equipment.” NOCSAE notes that Georgetown University’s football team rejected a purchase of SAFE Clips for, as portrayed by the judge, “fear that the product would void the helmets’ warranties.” The deficiency of this argument, Judge Drain stressed, is that Mayfield failed to offer facts suggesting it was close to striking a deal with Georgetown or other schools.
In a statement to Sportico, NOCSAE executive director and general counsel Michael Oliver, insisted his organization’s policies are designed to promote consumer safety and not impact consumer prices. “The only ‘influence’ NOCSAE may have in any consumer market,” Oliver asserted, “is based upon the integrity and demands of our standards and the independent certification of compliance with those standards. Governing bodies around the world require the use of athletic equipment certified to NOCSAE standards because there is no other standard which demands as much from protective equipment and from the manufacturers as does a NOCSAE standard.”
Mayfield can appeal Judge Drain’s ruling to the U.S. Court of Appeals for the Sixth Circuit.
(This story has been updated to include a portion of Oliver’s statement, excerpts from Mayfield’s complaint, and NOCSAE’s clarification that a third party is the certifying entity of NOCSAE standards for purposes of NOCSAE certification:)
“In 2015, NOCSAE revised its standards to require independent third-party certification of compliance with NOCSAE standards by an ANSI/ISO accredited certifying body, which program includes oversight and audit by the third-party certifier of the manufacturer’s quality control and quality assurance processes. The certifying body NOCSAE selected is the Safety Equipment Institute (“SEI”). SEI also certifies equipment to standards in other fields, including National Fire Protection Association and the U.S. National Institute of Justice (NIJ). SEI certified products in those programs include chemical, biological, radiological, and nuclear (CBRN) protective ensembles, bomb disarm protective suits, law enforcement restraints, HAZMAT protective ensembles, emergency medical operations protective clothing, firefighter helmets, gloves, boots, SCBA (self-contained breathing apparatus), and chemical/biological terrorism protective suits.”