On a scorching June day in Phoenix, some of Arizona’s best basketball prospects gathered outside the entrance to a high school gym.
They were eager for the state’s first major showcase since the onset of the pandemic, but they had to satisfy safety measures before they could play. Temperature checks and mandatory hand washing for their own protection and something else entirely for the security of the creators of the event.
Organizers required athletes to have a COVID-19 liability waiver signed by themselves and a parent or guardian before entering the gym. Some athletes and parents were so quick to put pen to paper that they didn’t realize they had just waived their right to litigation and assumed all coronavirus-related risk.
“I definitely didn't read it when I signed,” admitted rising senior Arthur Kaluma, a 6-foot-7 forward with a long list of high-major scholarship offers. “I just want to be back on the court and play. We all do.”
The rise of COVID-19 liability waivers across athletics is a byproduct of sports returning while the pandemic is still ongoing. Cash-strapped high schools, colleges and club sports organizations want to protect themselves against opportunistic coronavirus lawsuits. As a result, they’re telling athletes that they can only play their sports if they sign a document forfeiting their legal rights.
A handful of high-profile examples have surfaced over the past two weeks as college football programs have welcomed athletes back to campus for voluntary workouts. SMU is requiring student-athletes to sign a form titled “Acknowledgement of Risk for COVID-19.” At Ohio State, there’s the “Buckeye Pledge.” Comparable forms exist at Indiana, Iowa and Missouri.
It’s difficult to estimate how many high schools across the country are using liability waivers, but the practice is prevalent coast to coast. You can find high schools in Florida, Michigan, Illinois, Minnesota, South Carolina and Texas that require a signed waiver from a parent before an athlete can participate in summer workouts.
As the trend proliferates across sports, legal experts are raising several key questions: Are these waivers enforceable in court? And are they fair to the athletes being asked to sign them?
Why a waiver
The appeal of the waivers is obvious given the number of college athletes who have tested positive for COVID-19 this month alone. Alabama, Clemson, Texas, Houston and Kansas State are among the more than a dozen schools that have reported more than three dozen cases as athletes arrived back on campus.
The precise language in each waiver may vary but their purpose is the same — to disincentivize a lawsuit. By signing the document, athletes formally acknowledge that they are aware of the risks associated with the virus, that they know they may become infected and that they are forgoing the right to sue if they do.
“Until we have a vaccine, I think a lot of organizations will be using waivers like these,” said Christy M. Mennen, a Minneapolis attorney who has helped many youth sports clubs draft COVID-19-specific waivers. “It’s a way to protect themselves from a lawsuit that could cost them tens of thousands or even hundreds of thousands of dollars to defend. It’s a low-cost risk-mitigation tactic they can take.”
Sports law attorneys who represent college athletes said they would advise clients not to sign these documents or to consult a lawyer to make sure they’re making an informed decision.
Don Jackson, Principal of the Sports Group, said the pervasiveness of these waivers is proof that schools are bringing sports back too soon and are “fully aware that they can’t protect the health and safety of their student-athletes.” Jackson urged high school and college athletes to band together and refuse to allow their institutions to assert power over them.
“What are schools going to do if you have 20 players who say, ‘No, I’m not going to sign?’ ” Jackson said. “Are they going to deny those 20 players access to the weight room? No, they don’t have the leverage to do that.”
There has been no such revolt at Rockford High School in Michigan. Seventy parents signed the school’s online “Assumption of Risk” waiver last week before athletic director Cole Andrews even had time to email the link to families and blast it on social media.
For the father of two Rockford High School football players, the new stipulation was a surprise but not a deal breaker. Whatever misgivings that Dan McLean had signing away his legal rights were not enough for him to deprive his sons of a year of high school football and damage their hopes of earning the chance to play in college.
McLean trusts Rockford’s football coaches and administrators to take appropriate preventative measures to combat the virus. And if either of his sons are unlucky enough to catch the virus, McLean hopes their youth and good health reduces the risk of a severe case.
“My wife and I talked about it, but to be honest with you it wasn’t that long of a conversation,” McLean said. “Our family has taken the approach that there was risk playing football before COVID and now there’s going to be risk playing football with COVID. The waiver is just another part of that.”
McLean’s attitude appears to reflect how other Rockford parents felt about the liability waivers. More than 300 athletes attended the school’s first voluntary workout Monday morning, enduring a mandatory screening and temperature check before participating in staggered conditioning sessions.
“The smiles that you see on kids’ faces and coaches’ faces and the feeling you get on campus has just been incredible,” Andrews said. “It’s a breath of fresh air.”
Are waivers enforceable?
At the college level, the decision to require athletes to sign COVID-19-specific waivers has been more inflammatory so far.
Notre Dame is among the schools to go out of their way to say they don’t have such waivers. Those schools who do require one have had to defend themselves against critics who argue the waivers are proof that universities are prioritizing the money grab of college football above the health of the unpaid players they’re bringing back to campus.
Ohio State athletic director Gene Smith insisted he doesn’t view the Buckeye Pledge as a legal document even though it has all the trappings of one. SMU athletic director Rick Hart told the Dallas Morning News that athletes who aren’t comfortable signing the school’s liability waiver will remain on scholarship even if they don’t play.
If there’s a COVID-19 outbreak on a high school or college campus, athletes typically would have less to fear than the general population. Infectious disease experts continue to say that people over the age of 65 or with underlying health concerns are at the most risk of developing severe cases.
Of course low risk does not mean no risk. The virus is not benign for even the healthiest teens and young adults.
“Young adults do get infected, they do get hospitalized and they do die,” said Dr. Ali Khan, dean of the University of Nebraska Medical Center College of Public Health. “Less often but they do.”
An athlete suing after contracting COVID-19 would likely have a tough time winning the case with or without a waiver. Maybe he or she could prove that an organization or school was negligent in failing to cancel an event or failing to follow state or local guidelines, but attorneys say causation would often be an insurmountable hurdle.
How could an athlete prove he or she became infected in the locker room or during practice rather than at the grocery store or at a restaurant? Barring a large-scale outbreak like the ones at a choir in Washington or a Champions League soccer match in Italy, it would be “pretty tricky,” Mennen said.
A liability waiver would add another obstacle for an athlete to overcome, but attorneys disagree on the likelihood those documents would be enforceable.
Some argue that a clear, unambiguous, state law-compliant document would hold up in court just fine as long as it has signatures from an athlete and a parent. Others countered that these waivers would likely be thrown out because athletes are being coerced into signing without legal representation and are receiving no benefit in return for entering into the contract.
“My gut instinct is that these won’t stand up, but I don’t have a crystal ball and I can’t predict what a court will or won’t do,” said Jason Setchen, an attorney who specializes in advocating for student-athletes. “Certainly the first defense a school would make is, ‘We have a liability release. You can’t sue us.’ You’d have to get over that hurdle in any lawsuit and you just never know how that would go.”
To Dinos Trigonis, organizer of the month-long Arizona high school basketball showcase, a COVID-19 liability waiver is more a deterrent than anything else.
“We’re making everyone acknowledge that they’re aware of the risks when they walk in,” he said. “Hopefully what that does is discourage people from being opportunists. Maybe they’ll think twice about trying to make some money by exploiting a situation when they have signed a document acknowledging the risk.”
So far Trigonis has not received any complaints from parents in Arizona, nor from participants in similar leagues in Iowa and Utah. After a three-month hiatus, basketball players are just grateful for the chance to return to some semblance of normalcy, albeit with temperature checks, disinfected basketballs and hand sanitizer stations.
Kaluma, the highly touted power forward who signed Trigonis’ waiver without a second thought, sheepishly admits his impatience to get into the gym got the best of him.
“I'm going to start reading the things I sign,” he said. “No matter how much I want to be out there and playing."
Krysten Peek contributed to this story
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