‘Brand new territory’ for amateur sports
COVID-19 waivers and many more precautions will be new normal for minor organizations
Jake Cabott is a former member of UBC’s volleyball team who is keen on seeing amateur sport resume coming out of the novel coronavirus shutdown.
Cabott is also a lawyer for Vancouver firm Borden Ladner Gervais and has an understanding of liability issues regarding a return to play. In a 2,300-word article he posted online on Tuesday, he says he believes waivers or another similar type of agreement regarding COVID-19 could work for sport, but also admits it is not a surety.
“By fulfilling the waiver requirements set out by Canadian courts, sport organizations may increase the likelihood that they will be protected from liability in relation to a participant’s contraction of COVID-19,” he writes. “Unfortunately, however, it is impossible to predict with certainty how the courts will interpret and enforce a COVID-19 waiver, so it is prudent for organizations to take as many cautionary measures as they are able to.”
Cabott added in a phone interview on Wednesday: “We’re in brand new territory. I do think that we can use some of the legal principles that have been used to limit liability and risk around physical injuries. But people need to be careful.”
Cabott talked about there being three general ways to establish exclusion of liability in sports cases: voluntary assumption of risk, inherent risk and waiver.
He has a long list of suggestions for waivers and exclusions regarding COVID-19. There are the baseline ideals, like making sure the waiver uses language that the average person can understand and that the waiver is provided before, or at least at the same time as, the agreement to participate in the activity. As well, the contents should clearly state that the organization and its employees will not be liable for contraction of COVID-19 arising from participation in the sport.
He also advises that sports organizations should use “distinct formatting to draw the signing party’s attention to the exclusion provision,” and that may include “yellow boxes, red letters, bold font, a larger size font and capital letters.”
He points out that courts have been critical of what he called “buried” waivers, so it needs to be clear.
Extra precautions to supplement the waiver could include “displaying at the site of play clearly visible and easy-to-read signage, such as a sandwich board or poster, indicating the organization and its employees will not be liable for the contraction of COVID-19,” according to Cabott.
“Sports organizations should actively look at their practices and their waivers and revise them and adopt more measured notice and clearer language,” he said. “Just don’t assume that what you have in play now will apply. Strengthen your processes and your language.
“I would also search out legal advice. The law treats youth, parents and adult players differently in these situations and organizations should get advice on how that works.”
Cabott said he has received “lots of response” to his online post.
“There’s no precedent on exclusion of liability for COVID through sport activity,” he reiterated.
Baseball B.C. and B.C. Soccer wrote letters to their memberships last week, expressing worries about insurance after the government changed plans regarding how minor sports are to resume with safety guidelines designed to combat the coronavirus.
Government agency viaSport is spearheading the return-to-play protocols. The initial arrangement for a return to play was that viaSport would come up with baseline guidelines, forward them to sports groups and they would tailor the guidelines to their particular sports. Those plans would then go back to viaSport, which would forward them to the Office of the Public Health Officer for approval. Once approved, the plans would be administered by the sport’s member clubs.
Last week, viaSport told the sports groups and posted on its website that the sport-specific plans would now be reviewed by the Office of the Public Health Officer and WorkSafeBC and, once reviewed, the guidelines would “help you finalize and implement your sport-specific plans for the safe return of your sport.”
It also stated that “sport-specific plans do not require government approval,” but instead would be approved by the sport group’s board of directors.
That led to Baseball B.C. writing to its members that “we are concerned that liability is being pushed down to the individual sports and importantly to local communities/clubs, all under a situation where sport people are not the health experts.”
As of Wednesday morning, viaSport had not sent the baseline guidelines to the sports groups. It did post answers to frequently asked questions on its website last Thursday.
Cabott, originally from Whitehorse, played volleyball at UBC from 2000 to 2005.