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By: Curt Graham
As universities across the country prepare to kick off this highly unusual college football season, the impact of COVID-19 and the safety of student athletes are predominant considerations. Additionally, colleges have been required to examine the legal implications of the decision to play. Some universities sought to reduce liability exposure by requesting their athletes sign liability waivers in advance of the season. For example, University of Louisville athletes were recently presented with a form entitled “Participation Assumption of Risk and Waiver of Liability.” This document provided that the athlete “release[s] the University…from any and all liability, claims, causes of action, damages or demands of any kind whatsoever related to COVID-19 that may arise from or in connection with my participation in any activities related to the strength and conditioning in furtherance of my continued participation with my athletic team.”
These waivers have faced vociferous opposition, and even NCAA President Mark Emmert has stated that he is “categorically opposed” to colleges requiring athletes to sign COVID-19 liability waivers. The enforceability of these releases is hotly debated. As Caleb Saggus noted in his September 2, 2020 blog post, enforceability will vary from state-to-state, and the enforceability of COVID-19 liability waivers has not yet been litigated in Kentucky’s courts. However, certain case law precedent offers clues as to the factors a court may examine.
Kentucky’s Supreme Court recently noted that pre-injury release waivers are not per se invalid in the Commonwealth. See E.M. v. House of Boom Ky., LLC (In re Miller), 575 S.W.3d 656, 660 (Ky. 2019). Additionally, exculpatory provisions have been upheld when the parties are “dealing at arm’s length and upon an equal footing,” and when “the contract was entered into voluntarily without either party being compelled to enter into the contract on the basis of necessity.” Greenwich Ins. Co. v. L. & N. R. R. Co., 112 Ky. 598, 604, 66 S.W. 411, 413 (1902). However, courts closely examine public policy arguments in these cases, and exculpatory agreements are generally “strictly construed against the parties relying on them.” House of Boom, 575 S.W.3d at 660. Additionally, potential plaintiffs (presumably with scholarships on the line in the college football setting) can be expected to argue they were not on “equal footing” with their colleges when the agreement was signed.
As Caleb previously noted, there is much uncertainty surrounding the enforceability of COVID-19 liability waivers, and this is particularly true in the context of college athletics. While we know the games will go on this fall, the legal consequences of the decision to play may not be known for years.
If you have questions or would like more information, please contact Curt Graham at email@example.com.
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