Is a risk acknowledgment form different than a waiver? Is it even enforceable?

'You can’t just shove draconian terms down the throat of the weak.'

On Aug. 5, as part of an announcement regarding safeguards for athlete well-being, scholarships and eligibility, the NCAA Board of Governors announced, “While statements of personal commitment to health and safety are acceptable, member schools may not require student-athletes to waive their legal rights regarding COVID-19 as a condition of athletics participation.”

The third bullet point of Eastern Washington University’s COVID-19 Indoor Practice Protocols, which were obtained by Out of Bounds, states that “Each athlete must sign a form acknowledging the risks of participating in sports during the current pandemic.” It’s unclear when the protocols were created or when the acknowledgment of risk form was put into effect, but the protocols were attached in an email sent by an Eastern Washington athletics staffer on Aug. 12 – a full week after the NCAA Board of Governors said universities can’t require athletes to waive their legal rights regarding COVID-19 in order to participate in athletics.

The protocols were sent in an email on Aug. 12 in preparation for the Eastern Washington’s men’s basketball team’s practice on Aug. 13. Eastern Washington, which competes at the NCAA Division I level in the Big Sky Conference, suspended all fall sports on Aug. 10, following the Big Sky’s decision to postpone football on Aug. 7.

Below is a copy of Eastern Washington’s acknowledgment of risk form.

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The form begs the questions: Are acknowledgment of risk forms different than waivers? Are schools allowed to force athletes to sign forms like this after the NCAA Board of Governors established a no-waiver requirement? If they’re not, what’s the punishment for schools that still try to force athletes to sign them?

And perhaps most importantly, are these forms even legally enforceable?

Out of Bounds emailed an Eastern Washington Assistant Athletic Director for Communications to ask if the university is still having its athletes sign the acknowledgment of risk form, and if the university is, what makes it different from a waiver? The university has not responded as of the time this newsletter was published.

To cite another public university in the state, the University of Washington’s Risk Services website states:

As a public entity, the University cannot require students to waive rights to participate in educational programs or activities, nor require employees to waive rights to perform work for the University. Participant Waiver Agreements and Acknowledgment of Risk (AOR) forms may reduce liability exposure subject to inherent limitations. If used correctly, these forms are an effective way to inform of risk and document the decision of participants to assume those risks.

At the request of Out of Bounds, University of Washington School of Law Professor Steve Calandrillo read Eastern Washington’s acknowledgment of risk form.

“It looks like it was carefully lawyered that they don’t say that Eastern Washington is absolved from liability,” Calandrillo told Out of Bounds, “but on the other hand, they tell the student that they are fully understanding that they are participating and entail the above risks. So it’s interesting, in tort law we talk about assumption of risk all the time and obviously if you participate in college athletics, there’s tremendous risk in any sport that you play. Usually it’s of injury from the sport and not usually from COVID-19 so this is obviously a unique risk that these athletes are exposed to.

“I don’t think there’s anything in this Eastern Washington document that would directly absolve the university from liability in violation of the NCAA policies, although, you might just say the general public policy matter, because all of these contracts throughout the country, not just with sports and college athletics but, you know – I teach at the law school at U Dub – lots of Bar examiners were asking students to absolve that state’s Bar examination board from liability if the student got COVID-19 while taking the Bar exam. So these students are being forced to sign these waivers right before they sign up for the Bar exam and they don’t really have a choice, right? Take it or leave it. You want to be a lawyer, you got to take the Bar exam. You want to take the Bar exam, you’re going to have to absolve us of liability.

“I would imagine that that court space with that type of waiver would throw a lot of them out on contrary to public policy grounds and I would imagine universities can try to make students sign stuff like this but my guess is that when there’s litigation over it, many of these waivers will be thrown out on public policy grounds.”

In short, the risk acknowledgment form might have been intentionally worded in a way to avoid conflict with the NCAA Board of Governors, but it may not necessarily hold up in court if the university were to try to use it as a defense in a potential lawsuit.

Calandrillo compared an acknowledgment of risk form to non-compete agreements.

“In a lot of states, they’re unenforceable, especially California, for example,” he said. “That doesn’t stop companies from trying to shove these standard form contracts down the throat of adhering parties because after all, you hope that even if you know the law is not on your side and that you might not be able to enforce it in a court of law, at the end of the day, you might scare enough people into not suing you over it.”

Athletic departments that try to enforce the signing of carefully worded but potentially legally dubious acknowledgment of risk forms could be exploiting the imbalance of power, resources and legal knowledge that exists between a university and its athletes, who only recently became legal adults.

“A lot of 19-year-olds have no legal knowledge at all, right?” Calandrillo said. “They’re freshmen in college, or whether you’re a freshman or senior, anyone who hasn’t been to law school obviously isn’t going to be well-versed in the law of whether these standard form adhesion contracts and these waiver contracts, especially, are enforceable or not, and many students might sign it thinking, ‘I’m bound to it,’ even though if they had good legal advice, they would know that many of these terms could be held contrary to public policy and not enforceable.”

“You can’t just shove draconian terms down the throat of the weak,” he said.

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This issue of acknowledgment of risk forms versus waivers, and whether the former is allowed by the NCAA or in a court of law, isn’t limited to Eastern Washington.

On the morning of Aug. 10 – the day before the Big Ten postponed fall sports – Chris Turnage, a sports lawyer who has been appointed to the Arkansas State Board of Athletic Training, emailed every Big Ten university president and athletic director, telling them, “I’m writing this today to offer some insight and maybe a possibility about the playing of college football.”

He later continued:

“I understand one of the biggest obstacles for an institution is liability. With the NCAA preventing waivers, this increases the liability the school faces. However, I would recommend considering an ‘acknowledgement form.’ This could state the player acknowledges they don’t have to play and that their scholarship will still be held if they don’t play. It can also acknowledge the efforts to be taken by the school but that they still could contract Covid by playing. There is not mention of ‘waiver’ or ‘waiving liability.’ While I understand this is not as good as a true waiver, this could absolutely be used in a lawsuit situation (and should help the defense of voluntary assumption of risk).”

However, as Calandrillo explained, naming a form something other than a “waiver” doesn’t necessarily mean it’s not a waiver. “Just because you title it ‘Acknowledgement of Risk’ doesn’t mean the body doesn’t try to do something different,” he said.

Signing the Eastern Washington’s acknowledgment of risk form is just one of 37 bullet points on the university’s indoor practice protocols, which also include:

  • “Practice groups are limited to 5 athletes each + 1-3 coaches.”

  • “Physical contact between athletes is not allowed. Athletes should maintain six feet of distance between one another. If a team cannot meet this rule, practice will be cancelled.”

  • “Athletes must bring their own water bottles; there is no drinking fountain access.”

  • “After every athlete has exited, the coaches will put gloves on and start the cleaning process. Cleaning materials will be provided by custodial services, including spray bottles and rags. Rags will be used for any surface area that athletes touch and for all balls and equipment used during practice. Rags will be cleaned by the equipment staff. Coaches will immediately wash their hands after cleaning the surfaces.”

Here’s how indoor practice works under Eastern Washington’s protocols.

Courts must be scheduled for practice through the athletic department’s event planning resources and they can only be used when at least one member of the coaching staff is present. Pickup games aren’t allowed. Every team must identify a site-specific supervisor and coaches have to check in with the supervisor before going on campus.

Previously: ‘Without you and Dr. Ackerman the Big 12 wouldn’t be playing football this fall’

Before stepping foot on campus, athletes have to complete an symptom attestation form using the ARMS software, which helps “consolidate student-athlete data, team schedules, completion of departmental processes, academics, financial information, and all other student-athlete data collection and information processes in one place,” according to the company’s website. Athletes and coaches must take their own temperature and determine if they have any symptoms associated with COVID-19.

They’re told not to come to campus if they have any symptoms and if they develop any symptoms during practice, they must go home immediately.

In addition to signing the risk acknowledgment form, athletes “must be educated on new operating procedures, COVID-19, and safety precautions” and “reminded of safety precautions at the beginning of each session.”

Athletes will enter practice facilities through assigned entrances. When they leave, they’ll leave through assigned exits. Locker rooms can’t be used unless the bathrooms in the locker room are the only available bathroom.

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Coaches will track which athletes attend which practice session through a written log, which will be used for contact tracing if necessary.

Coaches “will be educated and provided with masks,” according to the protocols. They must complete the university’s Return to Campus COVID-19 Safety Training before returning to campus.

Coaches must always wear a face mask inside and athletes must wear a face mask at all times inside university buildings, “except when engaged in strenuous exercise.” They must arrive wearing all of their practice gear and they’re responsible for their own laundry afterwards. Whistles aren’t allowed at practice.

Previously: You’re a COVID-19-negative athlete stuck in quarantine due to contact tracing. Now what?

Athletes are instructed to no touch their face or lick their hands, and they have to bring their own water bottles. They can’t use the water fountains.

During practice, all doors will remain open while large, industrial fans are turned on to help ensure proper ventilation.

If a coach has direct contact with an athlete, the coach should be wearing gloves. If the coach doesn’t have gloves available, the coach must wash his or her hands immediately after the contact.

Before the start of practice, athletes must wash their hands. They’ll do the same once practice is over. Hand sanitizing stations are available near the practice area, as are tissues and trash cans.

Indoor practices are capped at five athletes and three coaches. Athletes must remain at least six feet apart and if they can’t, practice is canceled.

In the case of basketball practice, forget a full-court, five-on-five practice. At most, Eastern Washington can field just one basketball lineup’s worth of players for indoor practice under its COVID-19 Phase II protocols.

After one group is done practicing, coaches must wash their hands, then put on gloves and use spray bottles and rags to clean any surface, ball or equipment that athletes used during practice. Coaches will then wash their hands after the cleaning is done.

Equipment staff is assigned to wash the rags.

Previously: The concerns behind an athlete movement in the Ohio Valley Conference

The practice facilities must remain empty for at least 30 minutes in between the cleaning of one group and the arrival of the next group, and locked when they’re not being used for approved, supervised practice sessions.

If an athlete or coach develops symptoms for COVID-19, is placed in quarantine, is tested for COVID-19 or tests positive, they must report this development to Eastern Washington through an online form.

But all of those practice protocols – from the participant limits that prevent Eastern Washington’s basketball teams from even playing three-on-three, to the six-foot distancing requirement that would make head-to-head defensive or rebounding drills virtually impossible, to the BYO water policy – are predicated on the signing of an acknowledgment of risk form, which itself may not be permitted under NCAA requirements, or even legally binding in a court of law, depending on the wording and how it’s interpreted.

“There’s a very famous expression in law of ‘We take function over form’ or ‘substance over style,’” Calandrillo said. “Just because you phrase something as ‘Oh, I am acknowledging risk,’ if the substance of it, if the function of it is to force a waiver of liability, courts will read through the form of the title. They’ll read through the style and look to the substance and if the substance is bad, they will not sanction it.”

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Recap of the last newsletter

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“We are a group of organized Student-Athletes from 7 OVC universities and are continuing to grow. We have many concerns with athletics proceeding in the Fall. We have seen movements from the PAC-12, University of Idaho, and Colorado State and we feel that it is important to voice our concerns.”

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Thank you for reading this edition of Out of Bounds with Andy Wittry. If you enjoyed it, please consider sharing it on social media or sending it to a friend or colleague. Questions, comments and feedback are welcome at andrew.wittry@gmail.com or on Twitter.