Better helmets mean better player safety.
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If you are a sports fan who happened to have been puttering around the house this past Sunday, there were a plethora of dramatic games on tap. From NBA and NHL Game 7’s, to end-of-season English Premier League drama, to the weekly opportunity to snooze on the couch with a golf tournament as white noise, Sunday was a sports fan’s paradise. Yet, for all the drama, it is highly likely that none of the games available for viewing will end up with a TV rating that even approaches the average viewership of Sunday Night Football in the 2021 season — nearly 20 million viewers a week. Even the recent NFL draft, an event whose action consists of watching people come to a podium to announce a draft pick, followed by even more people discussing that pick in excruciating detail, likely drew more viewers than yesterday’s Game 7 between the Celtics and defending NBA champion Bucks. Because there are popular sports — and then there is the NFL.
In fact, according to Sportico, the NFL is well on its way to meeting its goal of generating $25 billion in revenue by 2027. For context, the top five law firms on the Am Law 100 brought in around $24 billion in collective revenue in last year’s legendary bonanza of a legal market. Not bad for a sports league with only 32 franchises. And with the rise of legal sports betting, coupled with the continued commercial viability of fantasy football, the future of the NFL as a cash-generation machine par excellence looks secure.
But the NFL’s outlook was not always so rosy. In fact, as recently as less than five years ago, there was serious discussion of whether the NFL could continue as a going concern in the long run. What threatened the league, despite its popularity? The concussion threat, whereby the true cost of playing such a violent sport to the brain health of current and former players was becoming increasingly apparent — to fans, government officials, and perhaps most importantly to the future of the game, parents. At its mildest, playing football was alleged to result in an increased risk for dementia, as well as for chronic neurological conditions such as Parkinson’s or Alzheimer’s. At its worst, media stories of former players suffering from brutal conditions with even worse morbidity such as CTE and ALS continued to proliferate. As football’s dangers became more well-known and magnified, the idea that we could eventually see the sport wither away or forced to change to minimize the risk gained traction.
Even a column I wrote for these pages in early 2018 raised the question of football’s continued viability as a participant sport in its then-current form. As I put things then: “When the parents of the next generation of players have to weigh the odds of subjecting their progeny to a lifetime of neurological issues in exchange for the short-term thrill of competition and team camaraderie, there are doubtless going to be significant numbers who elect to steer their children to less dangerous sports.” At the same time, however, that column played up the promise of innovation as a way of mitigating the risk of brain injury for football players, even as the size and speed of those playing the game at the highest level continue to reach almost comical heights.
For example, the first-round draft pick of the Eagles this season, a “jovial giant” and self-described “Swedish Fish Connoisseur” named Jordan Davis possesses a historic mix of size, speed, and power. Just imagine a 6 foot 6 inch man weighing 340-plus pounds running toward you in an attempt to toss you to the ground on a lush grass field. Then imagine that man having the ability to jump almost three feet in the air from a standing position, while also having the speed to cover 40 yards in less than 4.8 seconds. In between prayers, you would likely offer a paean of thanksgiving that this person was known as the jovial type. As a reference, the fastest counselor in my kids’ summer camp couldn’t break the 5-second mark in the 40-yard dash. And he is a high school track runner. In short, you would want all of the highest-tech safety equipment possible before getting into any type of physical contact with Mr. Davis, even if you were a similarly gifted athlete yourself, as is nearly anyone with the physical profile of a modern-day NFL player.
Despite their Adonis-like physiques and awesome athletic gifts, however, NFL players are still prone to injury. With their brains being perhaps their most vulnerable — and of course valuable — body part. In fact, over 13,000 former players were approved for participation in the landmark 2016 NFL concussion class-action settlement, highlighting the pervasive nature of brain injury in former players — as well as the continued risk to those playing the game now. While that concussion settlement has been celebrated as a vital step toward securing the NFL’s chances for continued viability and success, the contribution of innovative equipment suppliers to the NFL’s present and future should not be understated.
In fact, anyone looking for a patent success story would do well to review the impact that better-designed, innovative helmets have had on reducing brain injuries in NFL players. As the NFL reported last October, the 2021 preseason “had the lowest rate of concussion in the last five years (2015-2019).” Why? A key reason was because “more than 99 percent of players are wearing helmets that performed in the top group based on the NFL-NFLPA annual laboratory testing performance results.” In short, better helmets mean better player safety. And you don’t get better helmets without better helmet technology, meaning more innovation. Innovation that continues, with the NFL even changing its definition of what a “top-performing helmet” is in 2021, a move that led more than a quarter of league veterans to change their helmet choice going into last season.
Ultimately, the NFL’s success is intrinsically tied to an embrace of safety-enhancing innovative technologies, especially with respect to helmets. Yes, that innovation has brought in its wake some patent litigation, as my 2018 column highlighted. But contrary to the scaremongering of some in the anti-patent crowd, that patent litigation did nothing to stop continued innovation in the helmet area. Instead, we continue to see improvements in helmet technology and player safety, with those improvements continuing to contribute to the NFL’s continued financial success. An innovation touchdown, indeed.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
