February 25, 2014
Professor of Sports Law
Department of Sport Management
There is perhaps no greater issue in the sport, recreation and health club industries than the use and interpretation of waivers. Considering how important waivers are, and how much they are being used, it is amazing that there is still such a great deal of misunderstanding over their legal value and the protection they can provide. This article attempts to demystify waivers and provide readers with a basic understanding of how they work.
Perhaps, first, and foremost, it is important to note that a waiver is a contract entered into between the user of the recreation or health club services and the service provider. In the contract, the user agrees to relinquish his or her legal right to sue the service provider in the event that the user is injured as a result of the provider’s negligence. In exchange for giving up their legal right to sue the service provider, the service provider agrees to allow the individual to use the recreation and health club’s services and facilities. It is important to note that as a general rule the waiver will only protect the service provider from liability for ordinary negligence and will not protect the service provider or its employees from gross negligence or reckless misconduct.
Second, the legality of a waiver is determined by state, not federal law, and therefore its validity will vary depending upon the state. Therefore, just because a recreation or health club facility uses a waiver legally in one state that does not mean that it will be valid in another state. It should be noted that in at least 43 states, a well-written, properly administered waiver, voluntarily signed by an adult, can be used to protect the recreation or sport business from liability for ordinary negligence by the business or its employees. It should also be noted that in three states: Louisiana; Montana and Virginia all waivers will be void since the courts have found them to violate public policy.