Collier, Lee athletes must sign COVID-19 waivers, but will they protect schools in court?
The NCAA president has said he is against requiring athletes to sign waivers releasing colleges from liability should players contract the coronavirus.
This summer two U.S. senators sponsored a bill that would make it illegal for colleges to force athletes to sign COVID-19 waivers.
Yet as high school athletes prepare to return to practice in Southwest Florida, they are required to sign documents releasing local school districts from responsibility if the players contract COVID-19.
School officials say the waivers are educational – that they spell out the risks of playing sports during the global pandemic so students can protect themselves. However, there is clear language in the documents that doesn't hold the districts responsible in the event of an infection.
But if an athlete contracted COVID-19, could they pursue legal action against the schools? And would the waivers hold up in court?
“Anybody can sue anybody for anything at any time,” said Chris Patricca, a Lee County School Board member who holds a law degree. “So, yes, absolutely they could sue.”
Collier County Public Schools require athletes to sign an “Assumption of risk, waiver, release and hold harmless” form specifically for COVID-19, in addition to the regular FHSAA waivers players must sign assuming the risks of injury for things like concussions and heat illness. Lee County Schools requires athletes to sign the same waivers.
Copies of the COVID-19 waivers are included at the end of this article.
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Local private schools Community School and Seacrest have athletes sign COVID waivers. All students at Bishop Verot, Evangelical Christian and St. John Neumann must sign waivers that include coronavirus language to attend school. Southwest Florida Christian does not have a specific coronavirus waiver, but athletic director Mike Marciano said COVID falls under the standard athletic liability waiver.
Canterbury and First Baptist did not respond to requests asking about waivers.
Jim Kelleher owns Kelleher Law, a firm in Naples. As a personal injury lawyer for nearly four decades, he has seen many lawsuits involving liability waivers.
Kelleher said waivers can protect companies (or schools) in court as long as all the risks of an activity are specifically spelled out. However, the waivers only protect companies from injuries that could be reasonably expected during the normal course of an activity, and they do not protect companies from negligence.
For example, if someone rents a personal watercraft at the beach, falls off while riding and hurts his shoulder, that would be covered by a waiver. But if the watercraft explodes and the person dies, Kelleher said, that would not be covered.
Kelleher reviewed the Collier and Lee county schools COVID-19 waivers for the Naples Daily News. He said if the schools aren’t negligent – if they follow the proper coronavirus protocols – they would win in court.
“Really what (the waiver) is is an attempt to avoid liability,” Kelleher said. “The best way to avoid liability is to do what you say you’re going to do – sanitize, check temperatures, fill out the (COVID-19 symptoms) questionnaires.”
Kevin Crews, a civil litigation attorney, is a managing partner of the law firm Wicker Smith’s Naples office. Crews defends local hospitals against claims of medical liability, so he also is familiar with these types of waivers.
Though the COVID-19 waivers offer protection, he said, they don’t absolve the schools from all responsibility.
“The things that waivers don’t do, they don’t authorize an entity to act negligently,” Crews said. “If a coach knows a kid is infected, if he doesn’t act with reasonableness, if he allows kids not to follow the guidelines – if a coach knowingly allows that to happen, arguably that’s negligence.”
The biggest question in court would be determining where someone contracted COVID-19. If an athlete gets sick, there’s no way to prove she got the coronavirus playing a sport.
Patricca said it’s the same way for teachers. Worker’s compensation claims likely won’t cover teachers who get COVID-19, she said, because it’s very difficult to prove where someone got the virus.
“It’s an impossibility-of-proof issue,” Patricca said. “COVID is everywhere. You can’t prove anything.”
Kelleher and Crews said the same, even though both said they expect to see a rise in cases of people suing businesses after catching the coronavirus.
“Being a claim lawyer, people are going to come to me where a loved one died and they want to sue somebody,” Kelleher said. “I can’t imagine where I’d say it’s a good idea.”
Patricca has a unique insight into the athletics waivers. She’s been on the school board for four years. She also serves on the Florida High School Athletic Association board of directors. Patricca has been a college law professor for 20 years, and she also has four children who attend Lee County public schools, two of whom play football.
At an Aug. 14 meeting, the FHSAA board voted to make a COVID-19 waiver available to member schools, though schools are not required to use them. Athletes and coaches are required to watch a COVID-19 safety video before the season.
Patricca said these moves are to teach athletes to the risks of the disease.
“I don’t see it as a liability waiver as much as an educational exercise for parents and students,” Patricca said. “We really want to make sure parents understand what are the risks and what are the long-term impacts (of COVID-19).”
Jennifer Kupiec, communications specialist for Collier County Public Schools, agreed.
“The waiver is used to ensure students and families understand the risk involved in participating in voluntary extracurricular activities,” Kupiec wrote in an email. “It also serves as an agreement in which (student-athletes) acknowledge that they will adhere to all safety protocols put in place.
“We cannot speculate as to whether the waivers will prevent an athlete from pursuing legal action.”
Lee County Schools representatives did not respond to requests for comment.