When “Waiver” Means more than just Being Released

 

Almost anyone who has worked in youth sports is familiar with the use of liability waivers. When parents sign their son up for the youth baseball league or agree to allow their daughter to play high school basketball, they are generally asked to sign a waiver. These documents usually contain similar language and state that the parent is waving the right to sue the league, school, team, or coach for injuries their child might receive while participating in a sports activity.

Many critics of our legal system complain that people as a whole are “suit happy,” looking to blame someone for any negative outcome and willing to sue to recover damages. More and more parents who have signed waivers are quick to file suit after a child has suffered an injury while playing in a game or participating in a sanctioned practice.

It is important for people working in sports administration to know something about the state of litigation in the area of sports waivers. This knowledge is vital when dealing with complaints from parents and when planning activities for a youth league or school athletic program.

The conventional wisdom is that the use of waivers protects a school or league from the threat of lawsuits, and that getting these documents signed prior to a season certainly serves as a deterrent to future lawsuits being filed. But does the conventional wisdom match what is really taking place in society?

There is a lot of case law that defines sports waivers. Such waivers are commonly used by both school systems and youth sports organizations. They are part of a number of tools designed to hold costs down. Schools commonly require athletes to complete physicals and obtain a letter from a physician certifying them as healthy enough to play. Students and parents are required to sign releases allowing authorized school personnel to consent to treatment and to obtain medical records for a student athlete where parents are not available. Students sign statements agreeing to abide by all rules of conduct set out by the school.

Few sports organizations can afford to purchase enough insurance coverage to pay claims when athletes are injured while participating in a sports activity. Waivers are seen as the primary tool available to help hold insurance costs down.

The reality is that sports waivers do not provide the kind of blanket protection that the general public may assume. There are several reasons why waivers many times are found invalid in court. These documents typically are found not to protect against what is legally called “gross negligence” (reckless behavior). Forty states in some fashion will not enforce waivers against claims of minors (laws vary; but in Alabama the age of majority is 19). Waivers are often held to be invalid if they are not found in “stand alone” documents.

By far the greatest weakness of sports waivers is that they frequently are poorly written. Courts uniformly hold that for a contract to be binding its terms must be clear and unambiguous. Many state courts want to see the word “negligence” in such documents (to distinguish from gross negligence, or intentional acts). Many of these documents are very wordy but don’t contain that simple word. What will work in one state won’t stand up to court scrutiny in another state. Too often organizations simply copy someone else’s waiver that could come from any number of sources, including the internet. It is a sad fact of life that not all attorneys are created equal; as such, even attorneys can draw up poorly written documents.

Sports administrators must bear all of this in mind when using waivers. In truth, major damage awards given to athletes injured during competition are relatively few in our court system. The bigger problem is often the cost of litigation. Payments to attorneys and the costs associated with court cases can be daunting.

The best thing any sport administrator can do to protect against these costs is to consult with a good attorney about the wording of any proposed waiver document. The attorney should be asked to provide information on that jurisdiction’s statutory law, if any, and the current state of case law. Waivers provide absolute protection in very few states. An administrator should carefully read any proposed waiver before approving it for use. Spending a little time and money up front can prevent disaster in the future.

Mr. Tyler is the Director of the Library/Archivist at the United States Sports Academy. He is also a former practicing attorney.

 

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