Generally, a liability waiver is written to protect against legal action brought by a person or group. For local Little League® and District-operated programs, the need for a liability waiver may not always be obvious, but, as each program is its own independent entity, it is also at risk of being the subject of civil lawsuits. Each league or district, if it were to choose to use a liability waiver for any reason, including a virus like COVID-19, would need to retain a lawyer to develop language that complies with current state and federal laws. And even then, there is no waiver that can completely protect against legal action, due to judicial opinion that has not been written yet.
Liability waivers can be used to protect against liability claims or suits for damages from injuries that were determined to be caused by the negligent acts of an organization, like a local Little League program. Liability protection continues to be debated by the United States Congress. Until new local, state, and federal law is written and adopted, local leagues and districts are strongly encouraged to be diligent with their health and safety efforts. By implementing and enforcing current safety practices and procedures and following the latest guidelines issued by the Center for Disease Control (CDC), and state and local government, local programs will be in the best position to defend against potential liability claims. This same approach to training and education of volunteers could serve as an effective deterrent and discourage the filing of negligence claims.
Here are some of the things to keep in mind when your league or district considers creating a Liability Waiver.
1. What is a Liability Waiver?
- Liability Waivers are contracts in which one party releases or waives its right to sue for damages resulting from an identified risk. A local Little League or district should not assume that a waiver will entirely avoid liability. Liability waivers can be used to provide a shield from liability claims or lawsuits for damages from injuries that were caused by negligent acts. The specifics of each liability waiver vary depending on the nature of the business. Relative to the Coronavirus pandemic, waivers have not yet been tested in court for COVID-19-related claims, so it has yet to be determined how effective a COVID-19-specific waiver would be in the event of litigation against a local Little League program.
2. State-specific law governs enforceability of waivers.
- Some states do not recognize waivers as enforceable. Waivers must follow the specific requirements determined by state law, whether through statute or in case law.
- Requirements of a valid waiver differ by state. Working with an attorney who understands the law and can help to develop a waiver that is right for a specific league and/or district is the first step toward utilizing this tool to help avoid liability.
3. Common state requirements:
- Each liability waiver needs to have clear language that makes it is easy to understand what is being waived, with an explanation of the risk.
- Make the language visually conspicuous, using bold and/or large print.
- Consideration (both parties to the agreement – local league/district and the players/volunteers/sponsors are exchanging something of value such as the participation in an activity or permission to continue to use the premises.)
- The agreement is to be signed by a competent adult (over the age of 18). Unsigned waivers are generally unenforceable in that there is no proof that its terms were reviewed, understood, and agreed to.
- It is typically important to have all participants sign the waiver, as well as thoroughly communicating the language of the waiver to players, families, volunteers, and fans.
4. An executed waiver does NOT relieve responsibility to take reasonable precautions.
- Leagues should uniformly and consistently enforce safety protocol, as outlined in their ASAP (A Safety Awareness Program) Safety Plan.
- Regularly communicate and enforce safety rules. Effort to warn of potential risks through local league and district communication vehicles such as printed signage at the playing facility, and electronic means — email, website, social media.
- In regards to mitigating against COVID-19, leagues should develop and implement safety protocol in accordance with Center for Disease Control (CDC) and local requirements, as well as through consultation of the Best Practices on Organizing, Playing, And Watching Little League® Baseball and Softball During the Coronavirus Pandemic.
- Visit the LittleLeague.org child protection page and player safety resources for more information and resources.
5. Seek guidance from a local attorney to help draft a waiver that will be enforceable in your state.
- Waivers must follow the specific requirements determined by state law, whether through statute or in case law.
- Knowing whether a waiver is effective means knowing your state’s law.
- Working with an attorney who understands the law and can help to develop a waiver that is right for a local league is the first step to utilizing this tool to help avoid liability.