The Lack of Concussion-Specific Helmet Safety Standards Remains a Concern for School Districts and Student-Athletes

by Hodgson Russ LLP
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With the national spotlight increasingly focused on concussion management, protocols, and prevention, it is somewhat surprising that helmet safety has not comprised a larger role in the discussion. The National Operating Committee on Standards for Athletic Equipment (NOCSAE) currently sets the voluntary standards for helmet performance in sports such as football, lacrosse, softball, and baseball. These standards have historically not been concussion-specific, however. Although no standards precisely addressing prevention of head injuries currently exist for helmets, NOCSAE recently approved the first helmet standard that will include testing for certain concussion-causing forces. NOCSAE anticipates that manufacturers will be required to meet this revised standard by June 2016. If implemented on time, districts should schedule their equipment inspections and testing appropriately. Moreover, districts must be mindful of their athletic budgets to meet all required equipment needs, which may change following the implementation of new standards.

NOCSAE currently requires that helmets meet many linear impact tests that occur in different conditions, locations, and strengths. Its revised standard anticipates testing the rotational and linear forces commonly associated with concussions as well. It will then suggest a minimum threshold that helmets should meet to reduce the risk of a player sustaining a concussion. These are positive steps, but they are not yet the accepted industry standard.

Also lurking in the helmet-legislation background is the Youth Sports Concussion Act, which was introduced both in the House and Senate in 2013 to help reduce sports-related concussions in youth sports. It authorizes the Consumer Protection Safety Commission (CPSC) to make recommendations to equipment manufacturers as to whether voluntary standards should be adopted to 1) reduce the risk of sports-related injury for youth athletes wearing protective equipment, 2) improve the safety of reconditioned protective equipment, and 3) modify warning labels on protective equipment. The proposed legislation would also make it unlawful for anyone to sell in interstate commerce any sporting equipment where the seller makes false or misleading claims with respect to the safety benefits of the equipment. For instance, there is no such thing as a concussion-proof helmet today, and there probably never will be. Anyone who claimed as much could face serious repercussions under this proposed law. Unfortunately, this legislation has not moved forward in any meaningful way since its introduction last year. Moreover, the CPSC’s ability to act under this proposal is limited to only making recommendations. This leaves the legislation of questionable use to foster change and improve safety now and in the future.

Although at the collegiate level, earlier this month, the NCAA issued guidelines aimed toward improving safety too. The guidelines were crafted to “generate a cultural shift within college athletics.” Thus, the NCAA proposed suggestions to minimize contact during football practices, recommended that institutions give absolute authority to a lead medical person to manage a student-athlete’s medical care and return-to-play decisions, and gave advice regarding the diagnosis and management of sports-related concussions. There were no specific guidelines provided for helmet performance, testing, or reconditioning. The recommendations were also criticized because they are voluntary, and since they give no means to supervise and administer them. Nothing prevents the NCAA from making these guidelines mandatory in the future, and with the increased focus on safety, some type of compulsory requirements in the future is likely.

Equally important, and equally absent today, is any standard relating to reconditioning or recertifying used helmets for safe use. NOCSAE suggests—again, under voluntary safety standards—that helmets be inspected at least every two years. It also recommends that organizations adopt a program of helmet inspection. Factors to consider in creating a helmet inspection program include the sport where they are used, the ages and sizes of the players using them, the frequency and severity of use, and the helmets’ ages. Reconditioning and recertification may be important for warranty coverage as well, and the manufacturer may require inspections on a more frequent basis. Districts should follow manufacturer inspection requirements to keep warranties viable. They should also consider whether helmets should be inspected on a more frequent basis.

There are no federal or New York standards limiting the lifespan of helmets either, but most entities that provide reconditioning services will do so only on helmets less than ten years old. Districts should confirm that the entity providing reconditioning/recertification services at least follows the NOCSAE testing protocols. They should also ensure that they receive helmets back with the NOCSAE seal of approval and that they are in acceptable condition. For example, any harness cables, face masks, hardware, and padding should be in place and correctly attached. Make this another part of your routine equipment inspection protocol.

There is more work to be done on helmet safety to augment some of the requirements already in place to help reduce brain injuries, including those protections afforded under New York’s Concussion Management and Awareness Act. Districts should be mindful of the current and expected standards to make appropriate decisions with respect to testing, inspections, and budgeting for equipment required for safer student-athlete participation.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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