Using waiver agreements in sports.

• Position: Reprint

Posted By: Rachel Corbett

As a professional working on the legal side of sport and recreation, I am often asked questions along the lines of the following: "When I register my child in a program, we are asked to sign a waiver form. Do these have any legal validity?" What follows is my answer to a not-so-simple question.

Any adult who is physically active, or who is a parent with children involved in sports, has signed waivers at one time or another. This question about their validity arises all the time--I could be doing a workshop on employment contracts, and invariably a participant asks this question at some point!

The answer is--both yes and no. Waivers are hopelessly misunderstood and are often improperly used. Most people who sign them think they are meaningless (and if they thought otherwise, they wouldn't sign them!). Most organizers who use waivers don't really think about them at all, but just consider them to be part of the necessary registration paperwork. To answer the above question, some legal background is needed.

The term 'waiver' is short form for 'waiver of liability for negligence'. A waiver is a contract by which the person signing it agrees to give up something. They are 'waiving' a right or entitlement that they otherwise would have. In the sporting context, the person signing it is usually a participant in a sport program or activity who agrees, by signing this contract, that they will give up their right to sue the organizer of the program or activity for negligence. In other words, the person who signs a waiver agrees to forfeit their legal right to pursue a legal remedy, should they come to harm as a result of their participation and should this harm be caused by the organizer's negligence (as opposed to being caused by other factors).

It should also be noted that 'negligence' is a precise legal concept. Being negligent means that a person who had a duty of care towards another did not fulfill the reasonable standard of care that such duty imposed. Put another way, negligence may result when an organizer fails to behave as a reasonably prudent person would behave. To be negligent is to have failed, legally, in fulfilling your ordinary and reasonable responsibilities. Our legal system provides that someone seriously harmed by such a failing has a legal remedy.

A waiver is thus a method a sport organization uses to transfer risk, in this case from the organization back to the participant. That is essentially what...