CINCINNATI (CN) — The designer of an impact-reducing football helmet attachment argued Tuesday at the Sixth Circuit that a group of prominent helmet manufacturers conspired to squeeze their product off the market in violation of federal trade law.
Hobart-Mayfield Inc., which does business under the trade name Mayfield Athletics, accused Riddell Inc., Schutt Sports, and other helmet manufacturers of anticompetitive behavior in a federal lawsuit filed in 2019.
The suit alleged the helmet manufacturers violated the Sherman Act when they signed safety licensing agreements with the National Operating Committee on Standards for Athletic Equipment, or NOCSAE, and were able to invalidate certifications obtained by attachment manufacturers like Mayfield.
Specifically, Mayfield says its S.A.F.E. Clip – which reduces impact to football players by up to 35%, according to lab tests – has been bounced from the market even though its initial prototype obtained a NOCSAE certification.
Mayfield claims helmet manufacturers have used their agreements with NOCSAE "to issue a blanket de-certification of all helmet/add-on combinations," which has given them total control over the introduction of add-ons to the helmet market.
U.S. District Judge Gershwin Drain, a Barack Obama appointee, called Mayfield's allegations "pure speculation" and dismissed the complaint in April 2021.
Drain emphasized that an updated version of Mayfield's S.A.F.E. Clip was never submitted for NOCSAE certification and was not given to the manufacturers for approval.
"Without these facts," he said, "plaintiff does no more than speculate that its product would be rejected even if it were in full compliance with NOCSAE standards -- but mere speculation does not survive the pleading requirements." (Emphasis in original)
In its brief to the Sixth Circuit, Mayfield attacked the credibility of NOCSAE, a supposedly independent body, and claimed its board of directors includes representatives "controlled by helmet manufacturers."
The company argued the licensing agreements between manufacturers and NOCSAE represent an explicit agreement under the Sherman Act that gives it standing to pursue antitrust claims.
"The 2018 policy rendered the NOCSAE certification standard meaningless as an independent standard," the brief states. "Instead, it delegated sole authority over the NOCSAE certification to the helmet manufacturers, who are now permitted to decide who can and cannot introduce competing products in markets for helmet improvement and reconditioning parts."
In their combined brief to the Cincinnati-based appeals court, NOCSAE and the helmet manufacturers pointed out there was no evidence to support Mayfield's allegation of a conspiracy, and echoed the conclusion made by Judge Drain regarding the S.A.F.E. Clip manufacturer's failure to submit its product for testing.
The defendants also mentioned safety concerns with the add-on product, including several test failures with the initial version that caused contact between the device and the player's chin.
The brief accused Mayfield of "making sweeping assertions" to cover the dearth of factual information in its complaint, and also disputed its claim the licensing agreements represent explicit agreements under the Sherman Act.
"Since the manufacturers were free to reject add-on products as early as 2013, long before Mayfield arrived on the scene, the timing of NOCSAE's policies cannot be linked to the advent of Mayfield or the S.A.F.E. Clip," the brief states. "Moreover, even if arguendo the timing was closer, that falls far short of suggesting a conspiracy between NOCSAE and three manufacturer defendants, none of which is alleged to have even communicated with NOCSAE on the issue."
Attorney Allen Bachman argued Tuesday on behalf of Mayfield, and told the three-judge panel that manufacturer certification is a necessity if you want to enter the football helmet market.
He said the S.A.F.E. Clip passed all safety tests at certified labs, but was nevertheless denied product certification by Riddell and other helmet manufacturers.
"The manufacturers issued blanket public statements [about add-on products] with no exceptions," Bachman said, "[and so] our customers start with the presumption that helmets cannot be used in league play when our product is added."
The attorney pointed out this includes not only players, but equipment managers, who "see these public statements and think, 'I can't use an add-on.'"
U.S. Circuit Judge John Nalbandian, an appointee of Donald Trump, mentioned warranties in other industries, most of which are voided when a consumer swaps out parts with aftermarket replacements.
"This is not the same thing," Bachman answered. "This is certification. The blanket statements create a huge burden and impediment to get into the market at all."
Attorney David Ettinger argued on behalf of the helmet manufacturers and NOCSAE, emphasizing Mayfield's case is predicated on a conspiracy of which there is no evidence.
"The license agreements ... say nothing about decertifying," Ettinger said. "They say nothing about other parties. Indeed, the license agreements are the same form agreements ... used for baseball, softball, hockey, lacrosse. So how do they create some conspiracy about football helmet add-on products?"
The attorney admitted a conspiracy could be proven by circumstantial evidence, but pointed out there are "zero allegations" of any communications among the defendants regarding any add-on products.
Nalbandian asked Ettinger whether certification is necessary for a manufacturer to compete in the helmet and helmet add-on market.
The attorney said Mayfield's complaint makes that allegation, but even if it were true, it would not form the basis of the conspiracy alleged in the lawsuit.
"Here, it seems like it's up to the manufacturers to certify [the add-on products]," Nalbandian said. "How does this company get access to this market if they can't get access to the certification?"
Manufacturers are given decertification power because add-ons "affect the performance of the helmet," according to Ettinger, who reiterated that such power does not constitute an agreement or conspiracy.
"The idea that a helmet manufacturer individually would want to keep an add-on product from the market if it reduced its product liability doesn't make any sense," he concluded. "They would have every incentive to adopt these add-on products if they avoided these very serious safety problems."
U.S. Circuit Judge R. Guy Cole Jr., a Bill Clinton appointee, and Senior U.S. Circuit Judge Eugene Siler Jr., an appointee of George H.W. Bush, also sat on the panel. Siler did not participate in the virtual arguments, but will be involved in the panel's decision.
No timetable was given for the court's ruling.
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