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Sports and COVID-19 Waivers: A Necessary Evil?

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Safe Return to Play

In our current COVID-19 climate, there is much debate in the recreation and sports world regarding safe return to play. As students go back to school, they are just as eager to get back to sports. Some people clamor to “let the games begin,” while others fear it is not yet safe to “go back in the water” as test positivity rates in many areas far exceed the World Health Organization’s target of 5% or less for the safe return of most youth sports. Yet sports organizations and facilities who have been hit hard financially by the lockdown want to get back in the game, as do players.

As such, there is high demand for return to play before the safety of players can be guaranteed. We know an effective vaccine will not be available for months, and proper testing and tracing is in short supply. Therefore, in the absence of a guaranteed safe player experience, sports entities are trying to protect themselves from virus-related lawsuits by requiring players to sign a COVID-19 waiver.

For some, the waiver is just one component of their overall risk management plan. In other cases, the waiver hints at a moral dilemma: the organizations can’t promise to safeguard participants upfront, but will take steps to protect themselves legally on the back end.

Waivers and Releases

In a pre-pandemic world, liability waivers and releases were not a big deal. In our sports insurance program, we would receive a handful of inquiries about waivers each year, typically because the liability insurer required them for all participants. It was fairly straightforward.

These days, COVID-19 waivers are headline news. Without a vaccine or cure, surefire preventive measures, or uniform buy-in from the public on proceeding safely in ambiguous times, organizations fear a future backlash of COVID liability claims. Teams, leagues, facilities, and tournaments believe a COVID waiver will be a panacea to these potential lawsuits.

Waivers do offer protection in certain situations; however, they are not a magic bullet, nor do they provide a free pass to those who fail to follow COVID safety practices. The legal viability of waivers is governed by the states, and guidelines vary as to their effectiveness around the country. Certain states, for example, do not allow a parent to waive a minor child’s right to sue, rendering many sports waivers useless. And states like Virginia and Louisiana consider all waivers to be against public policy.

Even though waiver usage may not be recognized by a state, using a COVID-19 waiver or notification can still serve a purpose. As a warning, it puts participants and parents on notice of possible exposure to COVID-19 and related health risks of the virus. The document can set forth behavioral expectations regarding hand-washing, mask-wearing, testing, contact tracing, and even whether spectators are allowed at events.

The existence of a signed waiver in states where they are recognized means that before a lawsuit can progress, the waiver must first be defeated in court. At the very least, this often proves effective against simple nuisance claims.

Why COVID Waivers are Controversial

College football has received much scrutiny over COVID waivers, as some schools have mandated them in order for athletes to join pre-season workouts. Some of these waivers are lengthy legal contracts, asking students to give up their right to sue for any health conditions arising now or in the future from potential COVID exposures.

Other schools ask players to sign documents that carry as much legal weight as a school field-trip permission slip. A complicating factor is that some scholarship athletes must choose between signing away their future health and receiving an education. The disparity from athlete to athlete, and school to school, coupled with the effectiveness (or lack thereof) of waivers from state to state, has put these waivers in the spotlight and football players in limbo.

Mark Emmert, president of the NCAA, recently stated that he is “categorically opposed to [COVID waivers]. It’s an inappropriate thing for schools to be doing.” His statement has been applauded by many who feel that colleges are putting sports revenues ahead of player health.

COVID waivers are also controversial when considering the rights being waived versus the actual benefit received. A sampling of risk managers, insurance professionals, and attorneys agreed when asked if COVID-specific waivers can protect sports organizations from liability: their answer was “it depends.”

It depends on the allegations. It depends on the state where the claim occurs. It depends whether the waiver is appropriately worded. It depends if the signor had any bargaining power. It depends if gross negligence or intentional behavior is involved. With that said, it is hard not to feel conflicted about using such waivers in the face of so many unknowns.

Legal Protections Without a Waiver

Whether or not COVID waivers are used, sports organizations and facilities can protect themselves from the threat of COVID claims. The first step is to use every resource to promote safety and reduce exposure to liability. The most effective measures against the virus are social distancing, wearing masks, minimizing group size, and restricting travel to local geographic regions until test rates come down.

Make use of return to play strategies to phase in sports activities. Without universal adoption of safety guidelines (even the CDC’s guidelines are voluntary), it feels as though you are working without a compass. However, this also provides you the freedom to select the best practices for your organization and uphold the highest safety standards. All of these steps will help minimize liability exposure to COVID claims.

In a rare bit of good news, 13 states have passed or proposed legislation granting immunity to all businesses from COVID-based lawsuits: Alabama, Arizona, Arkansas, Georgia, Iowa, Kansas, Louisiana, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wyoming. In addition, the Senate has also proposed a similar federal COVID immunity shield for businesses. This will have a beneficial impact on businesses’ financials, and may help improve test positivity rates. Many of these laws offer immunity only for those who implement appropriate safety measures and follow local mandates; therefore, they could bring relief to both ends of the spectrum – health and economics.

In the end, your personal perspective likely determines your attitude towards COVID waivers. As a risk manager and advisor to my insureds, my philosophy is to take advantage of every possible step to safeguard exposure to risk. In that regard, I support the use of COVID waivers to inform participants, and protect businesses. As a parent of athletes, however, I am less inclined to view waivers favorably due to the unknown long-term impact of the virus on future health. If we are not required to sign one, I would prefer not to.

From either perch, whether your organization implements waivers or not, it is incumbent upon everyone to put safety first, follow the protocols, and do all we can to flatten the curve now so that sports --and our athletes-- can thrive in the future.

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