Waivers - A Risk Management Technique

Published April 20, 1996

In the last issue we explained how contributory negligence was one defense against liability for negligence. "Waiver of liability agreements" (commonly referred to as "waivers") are another type of defense. Waivers are common in sport programs and facilities. Like insurance, waivers are a risk management technique which involves transferring liability for injuries from one party to another by means of a written contract. Waivers are most common in contact sports and high risk activities, and in some instances will be a requirement of insurance coverage.

Coaches should be aware of the legal and practical meaning of waivers for two reasons. First, the prudent coach (whether an employee or contractor) should ensure that he is or she is protected within the waiver contract. Second, coaches are often assigned the administrative task of executing waivers, and thus play a critical role in ensuring that this is done properly. For these reasons, a few words about waivers as a defense against liability and a risk management technique are in order.

Basically, a waiver is a legal contract between two parties: the participant in a sport program (i.e. the athlete) and the organization providing the program. In this contract, the athlete agrees not to hold the organization liable for injuries he or she might receive as a result of the sport program, including injuries that might have been caused by the organization's negligence.

The legal meaning of a waiver can be explained another way, by comparing physical risks and legal risks. There is physical risk associated with all sport activity -- this risk is an inherent, reasonable and in some cases, desirable part of the sport. Legal risk, on the other hand, refers to the risk that the organizers of the sport event will behave negligently -- that is, they will not meet the standard of care required by law. Legal risk is not inherent in sport, and it is never desirable, reasonable or acceptable.

It is generally accepted under Canadian law that an individual consents to the physical risks of an activity or sport simply by participating willingly and voluntarily. Legal risks, on the other hand, can only be consented to by means of a written agreement or contract such as a waiver.

Of all contracts, a waiver of liability is one of the most onerous because the person signing it knowingly relinquishes the right to sue those who are named in the waiver contract. As a result the courts have construed waivers very strictly against those who seek to benefit from them (namely -- sport and recreation organizations). Nonetheless, courts have upheld waivers and in so doing, have precluded participants in sport from receiving compensation for their injuries, even where these injuries resulted from the negligence of the organization or its employees, including coaches.

The choice whether or not to use waivers is an ethical one. For some, the notion of asking participants to condone negligence is unpalatable, even unethical, while for others the fear of a lawsuit makes a waiver an inviting risk management technique. The decision whether or not to use a waiver is not the coach's to make -- however, if the coach's employer does use waivers, then these are a few things which will help ensure that the waiver works to the coach's benefit, as well as to the organization's:

• Good waivers must be well-written, clear and unambiguous. If the waiver is full of "legalese", encourage your employer to re-write the waiver.
• Be sure the waiver covers you, the coach. The term "coach" or "assistant coach" should be included in the contract along with directors, officers, employees, members and volunteers. If you are a contractor coach, you should also ensure that "contractors" are included.
• The waiver should state the obvious and foreseeable risks, dangers and hazards that you are asking the athlete to accept. Be wary of a waiver which asks the athlete to "accept the risks inherent in [the sport] ..." This is far too general. Should this wording appear in your waiver, work with your employer to develop a more complete description of the foreseeable hazards of your sport.
• The waiver should include not only the physical risks as described above, but also the legal risks associated with the sport (i.e. negligence). Thus the word "negligence" should appear in the waiver.
• The waiver must explicitly cover all activities, including training and preparation for competitions, social activities associated with competitions, as well as travel to and from competitions. Again, if this isn't clear in the contract, encourage your employer to make the necessary changes.

Finally, if you are responsible for executing waivers on behalf of your employer, you should develop and follow a consistent set of procedures. Here are a few tips:

• Plan to sign the waiver at a convenient time and place well in advance of the activity to which it applies.
• Give athletes time to read the waiver, and ensure they are not preoccupied with other activities.
• Ask the athlete "have you read and understood the waiver?" and obtain an affirmative reply.
• Don't make any changes to the waiver or allow the athlete to make changes without first obtaining permission from the organization.
• Have the waiver signed in front of you and witness the signature.
• Don't have waivers signed when or where alcohol is being served.

The only way to know whether a waiver will work is to have it tested in a court of law. If the waiver does hold up in court, it provides a complete defence against liability. However, before adopting waivers as a risk management technique, it is well worth considering the ethical implications of such a decision, as a waiver allows an organization and its employees to avoid responsibility for negligent acts.

Originally published: Coaches Report (1996) Vol. 2(3)