NFL Safety Standards: How a Guardian Cap Mandate in the NFL Can Mitigate Future Litigation

by Christian Bugher, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

In 2011, a group of former football players and their families accused the National Football League (“NFL”) of negligence and fraud in handling head injuries.[1] They claimed the NFL failed to properly address concussions at the time they occurred and neglected to provide treatment and recovery resources for affected players.[2] In 2015, the NFL agreed to resolve the claims with a $765,000,000 settlement.[3] In subsequent years, the NFL introduced updated protocols aimed at improving the management and treatment of concussions as they occur. Most notably, in 2022, the NFL implemented the Guardian Cap, an additional layer of padding that attaches to players’ helmets.[4] The NFL introduced this safety measure in hopes of improving the effectiveness of helmets in combating head injuries.

This article explores the concussion-related litigation the NFL has faced, and how a mandate of the Guardian Cap can help limit the NFL’s liability in possible future litigation. Part II examines the recent use of the Guardian Cap in the NFL. Part III discusses how the NFL’s preventative measures in player safety can help defend the NFL in possible future concussion-related litigation. Part IV concludes by encouraging the NFL to continue expanding the use of the Guardian Cap and other safety measures to ensure player safety and limit liability in future litigation.  

II. Background

Head injuries are a persistent issue in contact sports, and the NFL is no exception. In the 2023 season alone, NFL players suffered over 200 documented concussions.[5] These injuries, particularly cases of repeated head trauma, have been strongly associated with long-term health complications, such as Chronic Traumatic Encephalopathy (“CTE”).[6]

In 2022, the NFL first implemented the Guardian Cap, a protective headgear designed to enhance player safety by reducing the risk of head injuries.[7] The mandate required linemen, tight ends, and linebackers—positions most prone to high-impact collisions—to wear padded caps during practice and preseason games.[8] The safety mandate reflects the NFL’s ongoing commitment to ensure player safety, a concern underscored by a 2015 settlement in which the NFL agreed to pay over $765,000,000 to players and their families affected by head injuries sustained while playing in the NFL.[9]

A. NFL Concussion Litigation

In July 2011, seventy-three former NFL players filed suit against the NFL, alleging that the NFL failed to take reasonable actions to protect players from “the chronic risks created by concussive and sub-concussive head injuries” and fraudulently hid those dangers from players.[10] Following this suit, three similar claims were filed in federal court. Pursuant to 28 U.S.C. § 1407, all four suits were consolidated into one class, Turner v. National Football League.[11] Following the consolidation, over five thousand players filed suits to join the class.[12]

The class alleged that the NFL had a “duty to provide players with rules and information that protect players as much as possible from short-term and long-term health risks,” and the NFL failed to investigate and update rules to reduce the risk of head injuries during games.[13] They additionally alleged that, despite being aware of medical concerns regarding head injuries, the NFL’s culture pressured players to continue playing despite suffering from concussion-related symptoms.[14] Simply put, the class alleged that the NFL acted negligently and fraudulently in addressing player head injuries, resulting in affected players suffering serious long-term health consequences such as Alzheimer’s, dementia, depression, reduced cognitive functioning and processing speed, memory loss, and CTE.[15]

In 2015, after two months of negotiations, the NFL agreed to contribute $765,000,000 for medical treatment and direct compensation for affected players.[16] In the subsequent months, the parties negotiated the specific settlement terms, which included three primary components.[17] First, the NFL agreed to compensate retired players who submit sufficient proof of a qualifying health diagnosis.[18] Second, the NFL agreed to fund baseline assessment examinations of retired players’ neurological functioning.[19] Finally, the NFL agreed to fund an education program for class members to learn about the NFL’s medical and disability benefits and promote injury prevention classes for football players of all ages.[20] Notably, the settlement did not require the NFL to implement any protective measures for current or future players.

B. NFL Mandate of the Guardian Cap

To protect current and future players from head trauma, the NFL introduced the Guardian Cap. The Guardian Cap is a layer of padding added to the exterior of the football helmet, intended to reduce the impact of hits and limit head injuries.[21] In 2020, the NFL began testing the Guardian Cap, with select players voluntarily wearing them in practice.[22] The NFL expanded the additional safety measure the following season, giving all players the option to wear them in practice.[23] Gaining attention within the NFL, the NFL club owners voted in favor of requiring players in positions most prone to head injury, such as linemen and linebackers, to wear Guardian Caps in practice and preseason games during the 2022 season.[24] Citing a reduction in head injuries, the NFL again expanded the use of Guardian Caps during the 2023 season, requiring certain players to wear them during all preseason, regular season, and postseason practices.[25] The NFL also expanded the mandate to include running backs.[26] The push for Guardian Caps continued into the 2024 season, with the NFL allowing, but not mandating players to wear them during regular-season games.[27]

According to NFL executive Jeff Miller, the Guardian Cap has reduced the number of concussions in players wearing it by almost fifty percent.[28] Despite the efficacy, the Guardian Cap has become a frequent topic of debate among fans, players, and the media. As the NFL expands its mandates for using this protective padding, an increasing number of players are opting to wear it during practices and games. However, a notable segment of players remains reluctant to adopt this innovative safety measure, citing various concerns or preferences. Many players have voiced concerns about the appearance of the Guardian Cap. For instance, Minnesota Vikings player Jonathan Greenard reacted to a photo of a teammate wearing one with a simple “Ew,” while Rashod Bateman expressed similar disapproval, saying, “It messes up everybody’s swag.”[29]

C. The NFL’s Updated Safety Protocols

The Guardian Cap is the most well-known concussion safety measure, due to its obvious addition to the helmet. However, the NFL has implemented numerous other safety measures to reduce head injuries and provide better care for players who sustain concussions during games.

Since 2014, each NFL team is required to have an independent neurotrauma physician on the sideline to identify symptoms of concussions and decide whether players are fit to participate in the game.[30] Further, the NFL employs a committee of independent physicians and advisors from the players’ association to review and update the concussion protocol every season to ensure players receive the most medically up-to-date care.[31] Moreover, anyone can initiate the concussion protocol players must pass to continue playing, including other players, referees, or a coach.[32] By having independent doctors on the sidelines and allowing people around players to initiate the concussion protocol, the NFL has placed player safety in the hands of experts who can accurately make a medical decision about the player’s ability to continue participating in the game. However, the Guardian Cap is central to these safety procedures, as it is the only preventative measure available.

III. Discussion

By mandating the Guardian Cap for all players, the NFL would largely mitigate its liability in any future concussion-related litigation. By implementing a Guardian Cap mandate across the NFL, the NFL addresses past allegations of negligence in failing to update safety protocols and strengthens its defense against negligence claims.

Mandating the Guardian Cap across the NFL would serve as a proactive measure to minimize liability in future concussion-related litigation and provide a defense against possible negligence claims. Under the legal framework for negligence claims, a party must establish three elements: duty, breach, and causation. The NFL has a duty to protect their players from foreseeable harm, in this case, concussions. By instituting a mandate for all players to wear Guardian Caps during contact practices and games, the NFL demonstrates its commitment to properly addressing head injuries with the safest equipment available. A league-wide mandate would additionally demonstrate that the NFL is adopting medically supported evidence to reduce the number of concussions. With the NFL citing a fifty percent reduction in concussions by players wearing the Guardian Cap, its widespread use could be cited as evidence of the NFL addressing one of the allegations it faced in the class action lawsuit—that the NFL failed to update protocols to reduce head injuries.[33]

Playing in the NFL comes with inherent risks, one of which is the concern for concussions and repeated head injuries. By mandating the Guardian Cap for all players, the NFL is taking steps to address these inherent risks. Such proactive steps could negate future allegations that the NFL acted negligently or failed to implement available safety measures. A mandate could enhance the NFL’s ability to argue that it cannot be held liable for concussions that occur, despite implementing additional safety measures, and that concussions that do happen while players are wearing the Guardian Cap are due to the inherent danger of the game rather than the NFL’s negligence. By shifting the focus of head injuries onto the inherent danger of the sport through the implementation of the best available safety measures, the NFL has a strong legal defense to the causation element of negligence.

IV. Conclusion

Establishing a league-wide mandate of the Guardian Cap is a significant step in reducing the NFL’s exposure to future negligence claims in concussion-related litigation. The NFL has faced litigation from current and former players for how the NFL addressed concussions during games and the treatment and recovery resources available for players affected by head injuries. In response, the NFL has updated safety procedures and implemented measures such as the Guardian Cap. The Guardian Cap has gained popularity within the NFL over the last four seasons, with expanded league mandates and voluntary use by players outside the mandates. Implementing a league-wide mandate for the Guardian Cap could strengthen the NFL’s ability to mitigate liability in future concussion-related litigation and provide a defense against negligence claims.

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[1] In re Nat’l Football League Players’ Concussion Inj. Litig., 307 F.R.D. 351, 361 (E.D. Pa. 2015), aff’d sub nom. In Re Nat’l Football League Players’ Concussion Inj. Litig., 821 F.3d 410 (3d Cir. 2016).

[2] Id.

[3] Id. at 364.

[4] Guardian Cap Results: “Exceeded Our Expectations”, Nat’l Football League (Sep. 19, 2022, 3:41 PM),  https://www.nfl.com/playerhealthandsafety/equipment-and-innovation/engineering-technology/guardian-cap-results-exceeded-our-expectations.

[5]Head to Head: The National Football League & Brain Injury, NYU Langone Health, https://med.nyu.edu/departments-institutes/population-health/divisions-sections-centers/medical-ethics/education/high-school-bioethics-project/learning-scenarios/the-nfl-brain-injury (last visited Nov. 21, 2024).

[6]  Id.

[7] Guardian Cap Results: “Exceeded Our Expectations”, supra note 4.

[8] Id.

[9] Jason M. Breslow, NFL Concussion Settlement Wins Final Approval from Judge, PBS (Apr. 22, 2015), https://www.pbs.org/wgbh/frontline/article/nfl-concussion-settlement-wins-final-approval-from-judge/.

[10] In re Nat’l Football League Players’ Concussion Inj. Litig., 307 F.R.D. 351, 361 (E.D. Pa. 2015), aff’d sub nom. In Re Nat’l Football League Players’ Concussion Inj. Litig., 821 F.3d 410 (3d Cir. 2016).

[11] Id.

[12] Id. at 362.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 364.

[17] Id.

[18] Id. at 365.

[19] Id.

[20] Id.

[21] Guardian Caps, Guardian, https://guardiansports.com/guardian-caps/ (last visited Dec 24, 2024).

[22] Scott Stump, After latest concussion, Tua Tagovailoa says he won’t wear a guardian Cap. What is it?, Today (Oct. 22, 2024, 3:21 PM), https://www.today.com/news/sports/guardian-caps-nfl-helmet-rcna176600.

[23] Id.

[24] Guardian Cap Debuts at Training Camps League-Wide, Nat’l Football League (Jul. 27, 2022, 12:00 PM), https://www.nfl.com/playerhealthandsafety/equipment-and-innovation/engineering-technology/guardian-cap-debuts-at-training-camps-league-wide.

[25] NFL to give players option to wear Guardian Caps during regular season games, Nat’l Football League (Apr. 26, 2024, 4:08 PM), https://www.nfl.com/news/nfl-to-give-players-option-to-wear-guardian-caps-during-regular-season-games.

[26] Id.  

[27] Id.

[28] Cody Benjamin, What are Guardian Caps? Explaining NFL’s new helmet coverings for 2024 season, CBS Sports (Sep 5, 2024, 7:23 PM), https://www.cbssports.com/nfl/news/what-are-guardian-caps-explaining-nfls-new-helmet-coverings-for-2024-season/.

[29] Turron Davenport, Guardian Caps on Helmets? Why NFL players have mixed feelings, ESPN (Sep. 8, 2024, 7:00 AM), https://www.espn.com/nfl/story/_/id/40964843/swag-safety-nfl-players-guardian-caps.

[30] Tashan Reed, Why the NFL’s in-game concussion evaluation process is still not a perfect science, N.Y. Times (Dec. 20, 2023), https://www.nytimes.com/athletic/5041603/2023/12/20/nfl-concussion-evaluation-protocol/.

[31] NFL Concussion Diagnosis and Management Protocol (PDF), Nat’l Football League (Oct. 8, 2022), https://www.nfl.com/playerhealthandsafety/resources/fact-sheets/nfl-head-neck-and-spine-committee-s-concussion-diagnosis-and-management-protocol.

[32] Reed, supra note 30.

[33] Benjamin, supra note 28.

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Cover Photo by Gene Gallin on Unsplash.