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  • Antonio Brown has reportedly warned the NFL of potential litigation over wearing his preferred helmet. The MMQB breaks down whether the Raiders wideout has a legitimate case.
By Michael McCann
August 11, 2019

If Antonio Brown’s NFL grievance fails, could his insistence on wearing a particular helmet become a legal dispute?

Yes, but the Oakland Raiders wide receiver would face better odds catching a Hail Mary pass than he would convincing a court that he has a legal right to wear his preferred helmet.

Brown reportedly insists that he’ll retire from football, and thereby forfeit $30 million in guaranteed contract money, unless he can wear his preferred helmet. On Friday, he and his representatives participated in an NFL grievance hearing before a neutral arbitrator. Brown demands permission to wear a particular helmet. He prefers to wear a Schutt Air Advantage helmet.

The specific Air Advantage model Brown wears is no longer manufactured by Schutt, a company which saw some, but not all, of its helmets make the cut of helmets deemed acceptable by the NFL and NFLPA. As part of a recent joint initiative between the league and union, biomechanical experts used lab tests to evaluate helmets for their capacity to reduce head impact severity. According to the league and union, “potentially concussive head impacts” were emphasized during the testing. Beginning in the 2019 season, players can only use approved helmets.

While grievance hearings are conducted in private, media reports suggest that Brown’s representatives raised two basic arguments.

First, the helmet he would like to wear is not listed as either authorized or banned. Brown’s representatives can interpret the absence of mention in a positive light: if the helmet ought to be banned, it should be listed as banned.

The NFL, presumably, capably rebutted this line of reasoning. The league can explain the helmet’s omission on account of it being discontinued. To that end, it would be impracticable to expect the NFL to list every helmet made over the last century that has been worn by NFL players. Any helmet out of production, the NFL could logically maintain, should be viewed as banned unless it is listed as approved.

To bolster that point, NFL spokesperson Brian McCarthy tweeted on Monday the league requires that helmets satisfy standards established by the National Operating Committee on Standards for Athletic Equipment (NOCSAE). The NOCSAE is an independent and nonprofit entity that sets performance and test benchmarks for athletic equipment. A separate nonprofit entity, the Safety Equipment Institute, certifies equipment based on NOCSAE criteria. McCarthy notes that certification for equipment older than 10 years is not possible, thus implying that Brown’s helmet can’t be certified.

Second, Brown contends that if he had to wear any of the helmets authorized for use, the helmet would interfere with his line of sight while catching a football. It’s unclear if this argument has merit. The NFL has roughly 1,700 players. Only Brown has publicly threatened to retire over choice of helmet, which suggests that other players believe the approved helmets are at least tolerable. If, however, Brown could show that he would become more at risk of injury (not to mention a diminished capacity to catch footballs), perhaps he’ll have success with the arbitrator.

According to The Athletic’s Daniel Kaplan, a person familiar with Brown’s camp contends that Brown has warned the NFL of potential litigation. Brown, according to this source, would contemplate suing the league if he is injured while wearing a helmet he doesn’t want to wear.

There are thus two potential legal issues with Brown: his ability to compel the NFL to let him wear his preferred helmet and his ability to sue the NFL if he’s injured while not wearing his preferred helmet.

Brown doesn’t have a viable legal case to wear the helmet

If Brown’s grievance fails, there is no cognizable legal theory that would enable Brown to wear a helmet over the NFL’s wishes.

A contract law claim would not work. Brown is bound by his employment contract and the collective bargaining agreement. Neither his contract nor the CBA provides him with a right to use unsanctioned equipment. Brown had an opportunity to raise his arguments in a grievance; whether the grievance succeeds or fails, Brown will be bound its outcome. Stated differently, the NFL would not breach a contract by denying Brown access to his preferred helmet.

An antitrust law claim would be similarly unpersuasive. Brown might concoct a theory that the NFL and its teams have conspired against him and similarly situated players to unlawfully harm competition. Perhaps the denial of particular helmets dissuades Brown and other players from suiting up for NFL games, thereby diminishing the quality of the league product. Brown is one of the NFL’s best wide receivers. If he and other star players sat out over helmets, consumers would be left to watch an inferior brand of football.

If that line of reasoning sounds a bit “out there,” your instinct would be correct. For starters, Brown isn’t being denied a chance to play in the NFL. If he elects not to play over a helmet, that would be his choice. Second, it doesn’t appear that any other players have adopted the position that unless they can play with a certain helmet, they’ll refuse to suit up. Third, workplace rules that primarily relate to wages, hours and other working conditions—including equipment—are exempt from antitrust scrutiny when they are borne through collective bargaining. Here, the NFLPA collaborated with the NFL on the helmet rule.

Alternatively, if Brown could credibly show that denial of his preferred helmet exposes him to health risks, he could file a complaint with the U.S. Occupational Safety and Health Administration or California’s Division of Occupational Safety and Health. Brown would argue that his workplace safety is jeopardized by playing with a helmet that interferes with his line of sight.

A complaint along these lines would likely go nowhere. The helmet rule is designed to promote, not degrade, safety. Unless Brown has access to scientific data and medical evidence that contradicts that of the NFL and NFLPA, it is unlikely that a government agency would conclude that the helmet rule makes playing football less safe. This is particularly true since Brown’s union participated in the testing of the helmets. Indeed, the NFLPA assented to the very rule that Brown would be complaining about. It should also be noted that OSHA has traditionally taken a hands-off approach to workplace safety in the NFL (and in other contact sports). Also, even if OSHA became involved and found the NFL at fault, the appropriate remedy would be to fine the NFL, not force the league to allow Brown to use his preferred helmet.

Alternatively, Brown could take on his own union in court. It’s rare, though not unprecedented, for an NFL player to sue the NFLPA. Philadelphia Eagles offensive tackle Lane Johnson sued the NFLPA in 2017, when Johnson—who was given a 10-game suspension after testing positive for a performance-enhancing substance—insisted that the NFL and NFLPA had unlawfully conspired against him. Johnson maintained that the NFLPA denied him of the chance to review pertinent records for his appeal. He thus asserted that the NFLPA violated its duty of fair representation to represent members without bias or bad faith. Even if Brown went down this path, litigation against the NFLPA could take months, if not longer, to play out. A lawsuit against his own union would be unlikely to provide Brown the swift remedy he needs to play with his preferred helmet.

Brown would probably not have a viable case if he sues over an injury while wearing an authorized helmet

A major challenge to NFL player lawsuits over neurological trauma and other types of injuries is the principle of preemption. Preemption refers to the collectively bargained obligation of players to address their health grievances through arbitration. Only after an arbitrator has made his or her award (ruling) can a player go to court. Further, at that point, a federal judge would be obligated to give high deference to the award. The NFL successfully used preemption to defend against the first batch of concussion-related claims.

If Brown were injured while wearing an authorized helmet and then blamed the helmet for the injury (more on that below), a lawsuit over the injury would likely be dismissed. A judge would inform Brown that, as a member of the NFLPA, he accepts the grievance processes detailed in the CBA. In other words, Brown would have to arbitrate before he could litigate.

Bolstering preemption is language from the Labor Management Relations Act (LMRA). Section 301 of the LMRA instructs a federal court to dismiss state law claims that are “substantially dependent upon or inextricably intertwined” with the terms of a CBA. The NFL would maintain that any legal claim offered by Brown under California law would be bound by collectively bargained arbitration procedures and thus subject to dismissal.

Even if preemption didn’t knock a lawsuit out of a court, Brown would struggle to prove that wearing an authorized helmet unlawfully caused his injury. Over his nine NFL seasons, the 31-year-old has played in 140 regular season and playoff games. He also played in 41 games for Central Michigan University and numerous games at Miami Norland High School and in Miami-based Pop Warner football. Between games and practices, Brown has participated in thousands of football plays. By this point in his football career, Brown has likely suffered various injuries to different parts of his body. One such injury was a concussion suffered during a 2016 wild-card game between the Pittsburgh Steelers and the Cincinnati Bengals. It would be difficult for Brown to prove with meaningful certainty that he suffered a long-term neurological injury on any one particular play.

Brown would also struggle to establish that wearing a particular helmet “caused” an injury. As David Chao, MD (@ProFootballDoc) explains in a San Diego Union-Tribune story, helmets can’t prevent concussions. The NFL and NFLPA acknowledge this point. On their page for helmet safety, the league and union note, “no helmet system can completely protect against serious brain and/or neck injuries a player might sustain while participating in football.” While certain helmets may be safer than others, the degree of difference is questionable. If Brown suffered a head injury while playing football with an authorized helmet, it seems unlikely that his old helmet would have prevented that injury. There are also, of course, other potential causes of head injuries, including those related to biology and environment. Causation with long-term head trauma is often not straightforward.

Lastly, Brown, like other players, assumes certain risks by suiting up to play NFL football. It’s an obviously dangerous game, with very large men colliding with each other at very fast speeds. And this occurs play after play, season after season. As someone who is entering his 10th NFL season, Brown is hardly a novice when it comes to perceiving this type of hazard.

The NFL could grant an exemption to Brown but has reasons to say no

Assuming Brown’s grievance fails, the simplest resolution to the Brown drama would be for the NFL to grant him an exemption. The exemption would allow Brown to wear his preferred helmet, even if the helmet hasn’t been approved. The league could also attempt to extinguish any potential legal risks by having Brown sign a waiver. Such a waiver would say, in so many words, that Brown wears his preferred helmet at his own peril.

The NFL might not go with the simplest approach here.

First, the league has pragmatic reasons to avoid granting Brown an exemption. Once the league makes an exception for Brown, it invites other players to seek exemptions—be it for helmets or other types of equipment. Out of administrative convenience, the league might want to avoid the practice of crafting rule exemptions for players who are unwilling to comply with rules.

Second, while the league has mostly settled concussion litigation, some litigation continues. Whenever possible, the league wants to compile a factual record that suggests it values safety above all else. Granting a player an exemption to use a helmet that has not been deemed sufficiently safe would betray that goal.

Third, the league could reason that Brown has already enjoyed consequential opportunities to lobby against the helmet rule and to seek permission to use his preferred helmet. Brown, as a member of the NFLPA, could have used internal union deliberations to advocate against helmet limitations. It appears that other players, including stars like Tom Brady and Aaron Rodgers, share reservations about the helmet rule. Had Brown organized players against the rule, he might have found support from influential stars. Brown has also invoked his right to a grievance process before a neutral arbitrator. To the extent Brown has grounds to complain, the NFL could credibly assert that Brown should raise those complaints with his union, not the league.

Fourth, league attorneys know that contractual waivers are not always as firm as they appear on paper and they can become grounds for future litigation. The NFL has no incentive to accept a risk that Brown could eventually challenge the enforceability of a waiver.

Fifth, the league likely resents someone from Brown’s camp leaking rumors of a lawsuit. The league is probably less inclined to make an exception for a player who might be using media channels to warn of potential litigation.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.

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