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Student athlete COVID-19 waivers likely won’t block lawsuits

OSU football

Many colleges and even high schools are asking their athletes to sign COVID-19 waivers absolving the institutions of liability if they contract the virus, but experts question whether the documents will hold up in court.

“This is going to be a huge issue over the next 60 days as student athletes” and other students return to college, said Gregg E. Clifton, a principal with Jackson Lewis P.C. in Phoenix, who is co-leader of the firm’s collegiate and professional sports practice group. “The question is whether or not those documents are potentially enforceable” if the students get sick, he said.

Observers say such waivers should be part of a comprehensive COVID-19 risk management program.

If universities are sued, they are likely to be covered under their general liability policies, assuming they do not include a COVID-19 exclusion, they say.

Waivers vary widely, from documents that were clearly written by attorneys that feature much “legalese” to materials, sometimes referred to as pledges, that essentially advise students on how to stay safe.

Southern Methodist University in Dallas asks its athletes to sign a waiver that “looks very much like a standard liability waiver and is unambiguous in its language,” said Marc Edelman, a law professor at Baruch College’s Zicklin School of Business, who is an expert in sports law.

In contrast, Ohio State University’s “Buckeye pledge” includes “some of the same standard language that one would expect to find in a waiver, but then uses flowery language, such as calling it a pledge, to further confuse the student athlete,” he said.

A spokesman for Ohio State, located in Columbus, said in a statement that the pledge “is not being looked at as a legal document. It is intended as an educational component for student-athletes and their parents as part of our return to workouts protocols.

“It is an acknowledgment by our student-athletes of their responsibility to keep themselves, fellow students and the Ohio State community safe during this crisis.”

States’ regulations regarding waivers vary widely, experts note.

Louisiana, Montana and Virginia alone do not permit waivers. Even among states that permit waivers, there are some that will not allow parents to sign them on behalf of their minor children.

“At the end of the day, I think many of these waivers are going to be susceptible to challenge in the courts,” said Carla Varriale-Barker, a shareholder with Segal, McCambridge, Singer & Mahoney Ltd. in New York.

“It is too early to determine how effective the waivers will be generally” in the context of COVID-19, said Mike Merlo, Chicago-based managing director of coverage advocacy and claims resolution at Aon PLC. “We don’t even know what the standard of care is to establish whether or not an educational institution is negligent.”

“I have a lot of concern about these waivers from a legal standpoint,” said Jason A. Setchen, of Law Offices of Jason A. Setchen P.A. in Miami, who represents student athletes.

“They start with the fact that the kids signing them, or their families, are almost all of them not represented by counsel.  I wonder if the kids have a full understanding of what they’re signing and what they’re waiving.”

Mr. Setchen also questions whether students understand the health ramifications if they do contract the disease. “It’s a virus that affects your lungs,” he said. “Is the school going to honor their scholarships, even if they can’t come back?”

Furthermore, there needs to be some semblance of bargaining power given to the student signing the waiver, he said.

A waiver’s effectiveness will depend on how it is worded, said Michael LeRoy, a professor at the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign.

“The test for enforcing a waiver is that it has to be voluntary,” and the terms clear to those who are waiving their right to sue, he said, adding those are hard tests given the uncertainty that surrounds COVID-19.

Sherry Culves, a partner with Nelson, Mullins Riley & Scarborough LLP in Atlanta, who practices in the areas of education, employment law and general litigation, said her firm’s approach in dealing with waivers “leans more towards an acknowledgement of the risk, and sort of a safety pledge, where we’re asking student athletes,” as well as coaches and others, to “understand they all have a role to play in promoting a safe environment.”

“Each institution is going to have to take a look at what’s right for their community,” she said.

Putting athletes in close proximity to one another in practice or games, though, makes it less likely the waiver will be considered enforceable, Mr. Merlo said.

Richard C. Giller, a partner, insurance recovery and advisory, with Pillsbury Winthrop Shaw Pittman LLP in Los Angeles, said, “No matter what precautions are taken, no matter how faithfully they follow every guideline, if someone gets sick, they will most likely get sued. These waivers are not going to insulate colleges (from lawsuits) but they may help reduce or eliminate liability on the part of the schools.”

Ronald S. Katz, of counsel with GCA Law Partners LLP in Mountain View, California, who focuses primarily on legal issues in sports law, said signing a waiver “is not a mandatory activity by any means, so even without the waiver, I would say the athlete is assuming the risk of this behavior,” just as would be the case with someone who goes to a store or a restaurant.

Meanwhile a “wild card” is that U.S. Senators Corey Booker, D-N.J., and Richard Blumenthal, D-Conn., have said they plan to introduce the College Athlete Pandemic Safety Act, which would no longer permit student athlete waivers on a federal level.

Mr. Edelman recommends that all students not just athletes be asked to sign waivers. “From an ethical perspective high schools and colleges should be having all students sign an identical waiver,” and if they “do not feel comfortable doing this, they should not be particularly asking their football players to do so.”

“It’s important to communicate to students and their parents, and whomever you’re asking to sign a waiver, that it is a legal document” that relinquishes certain rights under the law, Ms. Varriale-Barker said. 

The waiver is an opportunity for the institution to put whomever is signing it on notice about the precautions they should take to protect themselves, Mr. Merlo said. 

“Another secondary benefit is it helps to document what the university is doing itself to safeguard against transmission of COVID-19” by creating a written record, he said.

Waivers should be part of a comprehensive risk management program, said Alyssa Keehan, director of risk management research for Bethesda, Maryland-based United Educators Insurance, a reciprocal risk retention group, which insures about 1,000 colleges.

“It’s not a substitute for sound risk management practice, so it should really complement a college’s overall risk management strategy” for managing the coronavirus risk, she said. 

“When it’s done right, waivers can really be a documentation of the institution’s practice of managing risk and should go hand in hand with education and training,” Ms. Keehan said.

She recommended that if possible, colleges hold mandatory meetings in which the waiver is explained, and that students be given some time to consider the waiver. “Make sure you create an environment that shows the signer has sufficient time to study what they’re signing and are signing it voluntarily, she said.

If a meeting is not feasible, students should be given information, perhaps in the body of the waiver itself, as to whom they should contact with questions, she said.

There will be “a lot of real gaping holes no matter how hard we try,” said Karen Weaver, an associate clinical professor in sports management at Drexel University’s LeBow College of Business in Philadelphia and a former college athletic director.

“Everybody’s trying to do the right thing, but there are so many unknowns.”