Many colleges, and even high schools, urge their athletes to sign COVID 19 waivers that release the liability facility if they become infected with the virus. However, experts ask whether the documents are valid in court.
"This will be a major problem over the next 60 days as a student athlete," said Gregg E. Clifton, director at Jackson Lewis P.C. in Phoenix, co-leader of the company's college and professional sports group. "The question is whether these documents are potentially enforceable or not," he said when the students get sick.
Observers say such exemptions should be part of a comprehensive COVID-19 risk management program.
If sued, universities are likely to fall under their general liability guidelines, provided they do not include a COVID-19 exclusion, it says.
The exemptions vary widely, from documents clearly written by lawyers that contain a lot of "legal" to materials that are sometimes referred to as pledges and that essentially advise students on how to stay safe.
Southern Methodist University in Dallas is asking its athletes to sign a waiver that "looks very much like a normal disclaimer and is clear in its language," said Marc Edelman, a law professor at Baruch College's Zicklin School of Business, the expert on Sports law.
In contrast, Ohio State University's "Buckeye Promise" contains "some of the same standard languages you'd expect in a waiver, but then uses a flowery language, such as the promise, to further confuse the sports student," said he said.
A spokesman for the state of Ohio in Columbus said in a statement that the promise "is not considered a legal document. It is intended as an educational component for athletes and their parents as part of our return to the training protocols.
"It is a recognition of our student athletes for their responsibility to protect themselves, their fellow students and the Ohio State community during this crisis."
According to experts, the state regulations regarding exemptions are very different.
Louisiana, Montana and Virginia alone do not allow derogations. Even among states that allow exemptions, there are some who don't allow parents to sign them on behalf of their minor children.
"Ultimately, I think many of these exemptions can be challenged in court," said Carla Varriale-Barker, a shareholder of Segal, McCambridge, Singer & Mahoney Ltd. in New York.
"It is too early to determine how effective the exemptions will be in general," said Mike Merlo, Chicago-based director of reporting and claims settlement at Aon PLC. "We don't even know what the standard of care is to determine whether an educational institution is negligent or not."
"From a legal perspective, I am very concerned about these exemptions," said Jason A. Setchen of James A. Setchen P.A.'s law firms. in Miami, which represents student athletes.
“They start with the fact that most of the children who sign them, or their families, are not represented by a lawyer. I wonder if the children know exactly what they are signing and what they are doing without. "
Mr. Setchen also asks if the students understand the health effects if they become infected with the disease. "It's a virus that affects your lungs," he said. "Will the school honor their grants even if they can't come back?"
In addition, the student who signs the derogation needs to be given some appearance of bargaining power, he said.
The effectiveness of a waiver depends on how it is formulated, said Michael LeRoy, professor at the School of Labor and Employment Relations and the College of Law at the University of Illinois at Urbana-Champaign.
"The test for enforcing a waiver is that it must be voluntary," and the conditions that are clear to those who waive their right to sue are tough tests given the uncertainty surrounding COVID-19.
Sherry Culves, a partner of Nelson, Mullins Riley & Scarborough LLP in Atlanta, who is active in the areas of education, employment law and general litigation, said that her law firm's approach to dealing with exemptions is more about recognizing risk and nature a safety promise in which we ask student athletes, coaches, and others to "understand that they all play a role in promoting a safe environment."
"Every institution has to look at what's right for their community," she said.
However, when athletes are in close proximity in practice or in games, it is less likely that the waiver will be considered enforceable, Merlo said.
Richard C. Giller, partner of Pillsbury Winthrop Shaw Pittman LLP in Los Angeles, said: “No matter what precautions are taken, no matter how carefully you follow any guidelines, if someone gets sick, they are most likely to be sued. These exemptions will not isolate higher education institutions (from lawsuits), but they can help to reduce or eliminate school liability. "
Ronald S. Katz, lawyer at GCA Law Partners LLP in Mountain View, California, who primarily deals with legal issues related to sports law, said signing a waiver was “not a mandatory activity, so I would say so without the waiver we, the athlete, take the risk of this behavior ”, as would be the case with someone who goes to a shop or a restaurant.
In the meantime, U.S. Senators Corey Booker, DN.J., and Richard Blumenthal, D-Conn., Have announced a "wild card" to introduce college athlete pandemic safety law, which waits athletes a federal level.
Mr. Edelman recommends to all students – – not just athletes – – be asked to sign waivers. "From an ethical perspective, high schools and colleges should encourage all students to sign an identical waiver." If you don't feel comfortable doing this, you shouldn't particularly ask your soccer players to do so. "
"It is important to tell students and their parents, and whoever you ask to sign a waiver, that it is a legal document that surrenders certain legal rights," said Ms. Varriale-Barker.
The waiver is an opportunity for the institution to let those who sign it know about the precautions they should take to protect themselves, Merlo said.
"Another secondary benefit is that what the university itself does to prevent the transmission of COVID-19 can be documented," he said, by creating a written record.
Exemptions should be part of a comprehensive risk management program, said Alyssa Keehan, head of risk management research at Bethesda, United Educators Insurance in Maryland, a mutual risk-lending group that insures about 1,000 colleges.
"It is not a substitute for sound risk management practice, so it should really complement a college's overall risk management strategy," she said, to manage coronavirus risk.
"If done correctly, waivers can really document the institute's risk management practices and should go hand in hand with education and training," said Ms. Keehan.
She advised the colleges to hold mandatory sessions explaining the waiver, if possible, and to give the students time to think about the waiver. "Make sure you create an environment where the signer has enough time to study what he signs and that he signs it voluntarily," she said.
If a meeting is not feasible, the students, possibly in the main part of the waiver itself, should be informed who to contact if they have questions, she said.
There will be "a lot of real gaps no matter how hard we try," said Karen Weaver, Associate Clinical Professor of Sports Management at Drexel University's LeBow College of Business in Philadelphia and a former college sports director.
"Everyone is trying to do the right thing, but there are so many unknowns."