Recently, some states have moved toward allowing youth sports to start again. For example: in parts of Oklahoma, Mississippi, and Missouri, softball, and baseball practices have resumed. If you are a club director, or a youth sports business considering reopening (and your state and local law allow), you are likely thinking about what steps need to be taken to ensure youth participants and their parents are apprised of the risks when returning to play, and how to protect your organization from liability.
Prior to reopening, everyone involved in the business of youth sports, clubs, camps, and daycares should concentrate on the two areas below.
First: Review Your CGL Policy
The first step is to review your commercial general liability insurance policy and familiarize yourself with the language that protects you from the risks associated with youth participation, paying particular attention to any exclusions. Many clubs and camps carry their own insurance policy, while others rely on the coverage provided by the policies held by their governing bodies (e.g., Junior Volleyball Association, USA Volleyball, United States Specialty Sports Association, North Country Region, etc.).
There are also a host of questions to consider when reviewing your policy, including:
- What do you need to change to make sure you have coverage for COVID-19? What is covered by your policy and what is excluded?
- What responsibilities do you have to make sure your member clubs, teams, or camps know about the scope of the coverage they have purchased through you?
- What responsibility do you have if there is an outbreak of COVID-19 on a member team or entire organization, or from an event that you sponsored, hosted, or insured?
- What risk mitigation strategies does your insurer require to trigger coverage? (For example: hand washing, bat sanitizing, ball sanitizing, temperature-taking, and social distancing)
Second: Prepare a COVID-19 Specific Waiver
Second, prior to reopening, you will want to consider the written agreements that are in place between your organization, and the youth participants and their parents. The waiver or release language that may have worked just fine in the past will now need to be updated to address COVID-19 specifically.
You may be able to mitigate some COVID-19 risks with a well-written, unambiguous, state-law compliant waiver or release prior to returning to play. The waiver should be a stand-alone document, independent from any other club-related documents. It should be “clear, unambiguous, and explicit” in expressing the parties’ intentions. It must reference the specific risk that is being waived (COVID-19 related) and the worst-case scenario, including death, if applicable. The waiver has to be appropriately worded, and ideally, will be signed by both parties. Since minors cannot enter into contracts, the waivers will need to be reviewed and signed by the parental guardian.
Many national organizations have now posted “post-COVID-19 waivers and releases” for youth and adults. While these might be a good place to start, to manage any future liability for your club, camp, or daycare, you will need a state-law compliant waiver. A waiver drafted to conform to California or Texas law may not protect you from future liability under the laws of Minnesota. Although no courts have yet been in a position to determine which COVID-19 risk mitigation language is enforceable, Minnesota courts have historically upheld waivers in similar contexts, providing for an opportunity for organizations to increase their protection through “proper, explicit language and documentation.”
We continue to monitor the COVID-19 landscape, the mitigation of risks, the national waiver templates, and the steps every state is taking to allow a return to play, camp, or daycare.
