Antonio Brown was one of 32 players using helmets last season that are now banned by the NFL and the NFL Players’ Association. Those players, including New England Patriots quarterback, Tom Brady, were able to use the helmets last season under a grace period but were required to make the change in 2019. Reports surfaced on August 9, 2019 that Brown, who was traded to the Oakland Raiders and then signed a three-year, $50.125 million contract with the team in the offseason, told team officials that unless he gets to wear his old helmet, he will not play football again. In fact, Brown filed a grievance to the NFL requesting that he should be allowed to wear his old helmet.

The NFL, like other professional sports leagues, adhere to The National Operating Committee on Standards for Athletic Equipment’s (NOCSAE) standards for the equipment being used by the players. NOCSAE is a nonprofit organization responsible for approving athletic equipment for safe play through research and testing. Helmets are initially certified as part of the manufacturer’s process for a certain amount of time. Once that time has elapsed, the helmets need to be recertified by a recertification entity. The recertification entity may declare the helmet is recertified for only one year or may follow the original manufacturer’s initial certification life as guidance to extend recertification life to not longer than that period specified by the manufacturer. Recertification must be carried out in accordance with the specific NOCSAE standard applicable to the headgear type by a licensed recertification house. Currently, all such entities are members of the National Athletic Equipment Re-Conditioners Association (NAERA). NAERA is an association of athletic equipment reconditioners whose mission is to increase awareness and acceptance of high quality athletic equipment reconditioning/recertification (where appropriate). According to NAERA’s rules, helmets that are 10 years or older cannot be recertified and, therefore, cannot be worn by NFL players.

Brown has been wearing a Schutt Air Advantage helmet since 2009. This helmet has not been found to be unsafe, but rather too old under the NAERA standards. The Schutt Air Advantage was discontinued in 2011 as a helmet. As a result, Brown has two choices: he can agree to wear a new helmet, or find a Schutt Air Advantage helmet that was manufactured in 2010 or 2011.

On August 12, 2019, the arbitrator ruled against Brown in his grievance hearing. Daniel Kaplan of The Athletic reported that during the grievance hearing, Brown’s side warned the NFL that if he suffered a head injury in a helmet that he is compelled to wear, he would hold the league liable. Only time will tell whether this was an empty threat or if Brown would actually file a lawsuit against the NFL if he suffers a head injury while wearing an approved helmet. .

Even if Brown files a lawsuit against the NFL, he is unlikely to be successful. There are several hurdles that Brown would have to overcome. First, leagues have always controlled what equipment can be used by the players on the field. According to the NFL Rulebook, Rule 5, Section 4, Article 1 “[a]ll visible items worn on game-day by players must be issued by the club or the league, or, if from outside sources, must have approval in advance by the league office.” Moreover, football is an inherently dangerous sport and there is an assumption of risk when a person decides to play football. It would be difficult for Brown to argue that using the helmet of his choosing somehow makes playing football inherently safe.

Brown would also have to prove that, were it not for the use of the required helmet, he would not have suffered the injury. This would also be an extremely difficult claim to prove. Brown’s threat to hold the NFL liable for any head injury seems more like a negotiation strategy to make the NFL loosen its stance, rather than an actual threat. In fact, the NFL could potentially be held liable if it allowed Brown to wear a helmet that was not approved by the NOCSAE and he suffered an injury.

Much to the delight of the Oakland Raiders and football fans everywhere, after losing the grievance, Brown tweeted “[w]hile I disagree with the arbitrator’s decision, I’m working on getting to full health and looking forward to rejoining my teammates on the field.” It’s good to have one of NFL’s premier playmakers and most entertaining personalities back on the field. As for the potential legal battle between Brown and the NFL, only time will tell if that will actually come to fruition.