I see a lot of participation waivers for sports academies.
That’s because I help dozens of facilities set up their scheduling software each week, and electronic waiver approval is part of that process.
Unfortunately, I often find myself repeating the same warnings about these waivers, which have the power to save your business.
It’s just not enough to use a copied and pasted, template waiver. Although better than nothing, this type of waiver has much less strength in court cases than one that is well-written and prepared.
A good waiver generally does three things: It makes sure your clients have a very clear idea of the risks of what they’re getting into, it makes sure they agree to absolve your business of any responsibility to cover the costs of any accidents that may occur, and it uses language specifically tailored to your state laws and your industry practices – and all of that requires the help of a good local lawyer.
Maybe you know what I’m about to say next: I’m not a lawyer, and this is not supposed to be legal advice – just an informative article to give you a starting point for understanding how waivers work in our businesses.
Understanding the Risks of Participation
This part of the waiver is legally referred to as the “assumption of risk,” and it might cause many of us to roll our eyes at today’s litigious society. Of course, you can get hurt when you’re playing sports or training for them – should we really have to spell those risks out for our clients?
Well, yes. It doesn’t hurt to make the risks as obvious as possible, especially when there are plenty of first-timers and young people coming into your facility who may not know better.
Your waiver should incorporate specific examples of what could happen, including the most dire consequences (such as permanent injury or death), but it should also be broad enough to include any unforeseen accidents that could occur.
It’s not enough to just list these risks. They need to be written in clear language on a separate form that’s impossible for your clients to miss or mistake for a part of another agreement.
Finally, you need to make sure that each client can actually read, understand, and agree with the assumption of risk. For example, is the agreement printed in large enough letters for those with poor eyesight to read? Is the language clear and easy to understand (not just a bunch of legalese)? Also, do you know what to do if the customer does not speak English? In one case, a fitness center was held liable for damages resulting from a treadmill injury for just that reason: the staffer knew that the participant did not speak English when he gave her the waiver to sign. (The court was not convinced that the hand motions he used to convey the act of exercising also implied the assumption of risk).
A note on minors: they’re not able to legally assume their own risk, which is why their parents must sign their waivers. Laws on waivers for minors also vary by state and continue to evolve, so this is an excellent reason to consult with an attorney.
Responsibility for Negligence
Sports academy waivers should also generally ask the participant to assume the risk of any accidents caused by negligence.
There’s a difference between regular “simple negligence” and “gross negligence,” though. The definition of gross negligence also varies by state (notice a pattern yet?), but it’s basically negligence that is described as purposeful, wanton, or outside the scope of a reasonable mistake or oversight. A waiver won’t help you if a court decides that gross negligence was the cause of the accident in question.
For example, in the treadmill case I mentioned before, the appeals court also found that the fitness center was grossly negligent because the treadmill manufacturer’s instructions said to leave six feet of space behind the treadmill, but the gym only left four. (Another lesson here: read and follow your equipment manufacturers’ instructions.)
The Need for Custom Waivers
I’ve already mentioned several times that laws and precedents on this kind of thing vary state by state. A few states won’t recognize ANY participation waivers as absolving businesses of liability for negligence, which means that your business needs to rely on the “assumption of risk” portion of the waiver.
Again, that’s why it’s so important to have a lawyer from your own state review your waiver, and that’s why I never like to see rote participation waivers being used at my clients’ academies. If you own facilities in multiple states, make sure that your attorney advises you on which statutes to follow — do you need liability coverage for the state where the facility is located or based on where your business is headquartered?
The more data you gather that shows your participants read and understood your waiver, the better. eSoft Planner users can choose to have participants re-approve their waivers online after certain intervals (30 days, for example) and/or after any changes have been made to the waiver. Electronic waiver approval is also a nice addition to paper waivers because they’re stored securely in the cloud, which makes it much more difficult for them to get lost or damaged.
My goal is not to scare anyone or dwell on the what-ifs of running your facility. Of course, a waiver can’t prevent anyone from ever trying to sue you: they can do that for any reason at any time. However, that having the right kind of waiver helps and will go a long way to bring you peace of mind.
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