A well-crafted sports waiver is an important tool for event hosts. It informs participants of risks and can help protect hosts against liability. But waivers might not work the way you think. Misconceptions abound, according to STEVE INDIG, lawyer and managing partner with the Sport Law & Strategy Group. It all starts with what a waiver is. And what it isn’t.
By Cindy McGlynn
A waiver is not an absolute defence against lawsuits
“People believe a waiver is a strict prohibition to lawsuits, and of course, it’s not,” says Indig, who explains that a waiver is an informed and voluntary agreement to give up a known legal right. If an accident or injury occurs, a waiver won’t automatically prevent a lawsuit, but it could serve as a tool for the defence.
Children can’t execute waivers
Indig says another common misconception is that children—or parents on their behalf—can execute waivers. They can’t. Minors can only execute contracts that benefit them. “A waiver is not of benefit to a child,” says Indig. “And a parent cannot waive those rights on behalf of a child.”
Keep signed waivers forever
“People ask how long you should keep [signed] waivers. I like to say, forever,” says Indig. Why? The timeline for a case of negligence starts when the injury is discovered, not when the event ends.
Waiver: An intentional, informed and voluntary agreement to give up a known legal right
Make Your Waivers Work Harder
Send out waivers early
To avoid hurried lineups of participants rushing through waivers at registration tables, Indig recommends sending waivers out two weeks before an event so that participants have ample time to review and understand the documents before signing.
Ensure people read electronic waivers
Electronic waivers are popular, but Indig advises caution because it’s difficult to prove a participant read and understood a long form with a single click of agreement at the end. What to do? “The more boxes they have to click, the better,” says Indig who explains that better waivers have participants click their agreement one paragraph at a time and offer a final consent at the bottom.
Description of risk is key
Indig says you can make a better waiver simply by spending more time crafting a detailed description of risk, including risks inherent to the sport. “So, if I play football, I’m agreeing to be tackled. If I play hockey, I’m agreeing to be checked; I’m agreeing to have a puck shot at me at 90 miles an hour,” says Indig. Detailing the risks inherent to the activity can bolster a legal argument that an injury occurred within the context of the sport and not through the omission of the sports organization.
