As organized sports attempt to return during the COVID-19 pandemic, athletes, coaches, spectators and bystanders will all be expected to sign liability waivers. Everyone associated with the games will have to accept, in so many words, that he or she (1) assumes the risk of contracting COVID-19 through their participation and (2) agrees that the organizer—be it a league, team, venue, college or even high school—would not be liable for any COVID-19 related harms.
This is not just true of players, coaches and referees. According to The Athletic, the NFL is weighing the possibility of mandating that ticket-holders sign COVID-19 waivers as a condition of stadium entry.
COVID-19 waivers won’t be unique to pro sports. Employees across industries will be asked to sign them. So will travelers, customers and guests. Trump rally attendees in Tulsa last month were required to sign waivers, as were student-athletes around the country who returned to campus for voluntary workouts. Southern Methodist University, for example, requires that its student-athletes sign a form that says the athlete “voluntarily assumes all risks related to the COVID-19 virus” and “waives and releases” the university from liability in the event the athlete contracts COVID-19.
The waiving of potential claims seems straightforward, but in reality it is only meaningful if the courts agree. There are six reasons why waivers may not be as ironclad as you’d think.
1. The 50 States Have Very Different Laws on Waivers
Enforceability depends on the state to which the waiver applies. In some states, waivers are disfavored as a matter of public policy. In others, liability for injuries sustained by certain protected groups (such as minors) or caused by certain types of misconduct (such as recklessness) can’t be waived. In still other states, waivers are generally accepted and parents can sign them for their children. Each state has its own approach. What might be allowed in Texas and Illinois might not work in Florida or California.
That state-by-state variability invites unpredictability. Pro leagues can attempt to mitigate that problem by including “choice of law” provisions—instructing any disputes over a waiver must be governed by the laws of a state where waivers are readily enforceable. But such provisions are harder to enact in college and high school sports, where many of the athletes aren’t yet adults and where the athletes are not unionized employees.
2. The Risk of COVID-19 Is Not a Risk Inherent in the Sport
Longstanding legal principles about sports-related injuries might not hold true for COVID-19. Take foul ball injuries: Courts usually shield teams and ballparks from foul ball injury liability so long as spectators are warned through their game tickets and so long as the ballpark provides netting and other safety measures consistent with industry standards. Foul balls are part of the game. The same isn’t true of a contagious virus.
Likewise, athletes are thought to assume numerous risks inherent in their sport. Consider tackling. No one assumes the risk of being tackled while walking down the street. If that happens, it could lead to criminal charges. But that same tackle, delivered by a defensive lineman on a running back on third and one, would clearly be within the bounds of the law.
That situation-shifting framework doesn’t work with COVID-19. There isn’t the same distinction between the real world and the sports world. Moreover, much remains unknown about the virus. Since the pandemic began, there have been conflicting warnings about how it is transmitted and its impact on the human body. There exists the possibility that COVID-19 could cause lasting lung damage, which might end an athlete’s career. A court could question why sports are being played at all during the pandemic. And if it did, it would be less inclined to enforce a waiver.
3. Waivers Can Be “Contracts of Adhesion”
Waivers sometimes appear to be more like “contracts of adhesion” rather than genuine choices. A contract of adhesion offers no opportunity to negotiate its terms. In the context of sports, an athlete or coach could either sign the COVID-19 waiver or be sent home.
When athletes are professionals and are represented by a union, a court would be inclined to accept a waiver as a condition of union-management bargaining. Yet when the players are students—especially students whose ability to pay for tuition is contingent on an athletic scholarship, which itself is contingent on the students’ playing—a court might be more skeptical. After all, the choice between signing a waiver and keeping a scholarship versus rejecting a waiver and no longer being able to afford college isn’t much of a choice. This concern explains why two U.S. Senators, Richard Blumenthal (D-CT) and Cory Booker (D-NJ) have introduced S. 4102, a bill that would restrict colleges’ use of mandatory COVID-19 waivers with their athletes.
4. Waivers Might Not Work With Bystanders and Guests
Courts might be less accepting of waivers for bystanders and guests. Take the proposed plans for the NBA’s “bubble” in Orlando. Under the current agreement, a limited number of family and guests could begin to visit players on Aug. 30. A COVID-19 waiver signed by an NBA player, whose union accepted it as a condition of resuming the 2019–20 season, is in a far different bargaining position from a family member who plans to visit—especially if the family member is young. Although Florida law generally permits waivers so long as they are clear and unequivocal, the larger point is that a waiver that works for a pro athlete might not work for family members who visit him or her.
5. Waivers for Personal Injury Law Don’t Automatically Extend to Other Areas of Law
Certain COVID-19 related legal claims can’t necessarily be extinguished through liability waivers. For instance, possible causes of action for older coaches under the Age Discrimination in Employment Act and for asthmatic staff under the Americans with Disabilities Act might extend beyond the reach of standard waivers. Likewise, athletes who refuse to suit up under return-to-play terms bargained by their unions could still raise claims via the National Labor Relations Act and the Occupational Safety and Health Act.
6. COVID-19 Waivers Arguably Undermine Public Health
Public health experts have consistently stressed that the risk of COVID-19 spreading is higher in crowded, indoor settings. To the extent courts weigh public policy considerations when assessing the legality of waivers to participate in or attend sporting events, science might not be on the side of sports.
In short, while waivers seem like uncomplicated devices to protect leagues and colleges, they are anything but in practice. Don’t count on them.
Michael McCann is an attorney, law professor at UNH Franklin Pierce and sports law reporter for Sportico, Penske Media’s new sports business publication.