Aim Key People Incorporation Participant Registration Forms Attorney Review of Leases Insurance Supervision Instruction

Sports Injury Care Facilities Equipment Automobiles Safety Rules Are Waivers/Releases Worth the Paper They are Written on? Bibliography

The information provided is basic, but can be effective if implemented.  The format is that of both specific checklists and general concepts that must be adhered to by the designated “people”.  With minimal effort, the program will result in an enhanced “peace of mind” for those who risk everything.  It can also help to provide a safer environment for the youth participants when volunteering.

The sports organization should appoint a Risk Management Officer (RMO) who is responsible for implementing (along with the directors & officers) the majority of the steps required by this program.  Along with this responsibility, the RMO is empowered as the chief and final decision maker on all matters related to safety.  The RMO has the authority to halt practice of play if the safety concerns of the sports participants or spectators are not being met.  The decisions of the RMO can only be overruled by the league officers or board of directors.

The RMO should preferably have a background in risk management while working for a larger industrial or construction firm where the appropriate training has been given.  The RMO should briefly survey all practice and playing facilities on at least a weekly basis during the season.  Also, the RMO should be readily available on a moments notice should his attention be required.

Each head coach should act as an extension of the RMO by being present at every game and practice and by accessing all new hazards on a daily basis.  The coaches are answerable to the RMO and must carry out his directives on a daily basis.  The coaches must carefully study and apply all of the concepts and requirements that are outlined in this program.  Each head coach should be given a copy of this program for his review and sign a statement that it has been reviewed and that the coach will carry out his responsibilities and the concepts that are outlined in the program.

Every year or every several years, the directors & officers of the sports organization should appoint a special risk management committee to study the effectiveness of this program and to make recommendations for change, if any.

If the attorney recommends incorporation, the directors & officers are responsible for making sure that all the paperwork and filing requirements of the province are being complied with on an ongoing basis.  Examples include taking corporate minutes of all meetings, annual tax filings, etc.  The protection offered by incorporation is a privilege of the province which can be lost if the technical requirements are not being met.  It is uncommon for a plaintiff’s attorney representing an injured party to attempt to “pierce the corporate veil” by alleging that the paperwork has not been properly handled, thus subjecting the “people” to losing their personal assets.

1. Registration Form with Waiver/Release of Liability
2. Emergency Information & Consent

• Make sure that all hold harmless and indemnification clauses requiring the sports organization to assume the liability of the facility owner are fair.  For example, it would not be fair for the sports organization to assume liability for a bleacher collapse if the bleachers were built and maintained by the facility owners.

• Clarify whether or not the lease makes the sports organization responsible for what happens at the facility just during official league events or for the entire year (365 days a year – 24 hours per day)?  If the sports organization is responsible for 24 hour exposure, special arrangements must be made with the General Liability insurance carrier to add this coverage for an additional premium charge.

The RMO is responsible for making sure that all facility lease agreements have been reviewed as outlined above by local legal counsel.

1. General Liability Insurance
2. Sports Accident Insurance
3. Directors & Officers Liability Insurance
4. Crime (Employee Dishonesty)

Depending on the circumstances, the sports organization may also need to purchase Property Insurance to cover real property and personal property.

The RMO is responsible for making sure that the requirements of this section are met.

Litigation – The vast majority of all youth sports lawsuit arise out of lack of supervision or inadequate supervision.  All adult personnel who are in the vicinity of an injury to a player are usually “shot gunned” into a lawsuit.

Duty to Stop Rowdiness – Participant rowdiness results in great number of senseless injuries in youth sports.  Juvenile roughhousing and pranks have resulted in a number of serious injuries such as eyes being put out by throwing objects and falls off bleachers.

Location of Supervisor – The supervisor must be close enough to an activity to personally observe, instruct, correct and supervise.  This concept applies in all situations including instructions during practice and when crossing the street to go to the closest   fast-food establishment.  Quite simply, when youth are involved, the law requires almost constant supervision in close proximity to all activities.

Competency of Supervisor – The sports organization is responsible for selecting and training competent sports administrators, coaches, managers, etc… A jury would look favorable on any sports organization that cared enough to do so.  The training of sports administrators and coaches through a certification program such as Hockey Canada is a valuable component of a risk management program.

Ratios of Supervisors to Participants – An appropriate number of supervisors should be present at all times to adequately observe, instruct, correct, and supervise.  In some sports such as basketball, one supervisor per team may be enough.  On the other hand, one supervisor per team may not be enough for a hockey team.  Also, the proper ratio is dependent on the age of the participants.  Generally, the lower the age the greater the required ratio of supervisors to participants.

Selection of Size, Age and Skill of Players – Numerous court cases have arisen out of the failure of a sports organization to appropriately match the size, age and skill of sports participants.  Obviously, when players of greater size, age and skill are matched with those of lesser size, age and skill, it is much more likely that injuries and lawsuits will result.

Sport Specific Techniques – Coaches should always follow the accepted practice for teaching sport specific techniques.  Certain drills and other methods that are standard for each sport should be followed.  Coaches should be involved in continuing education to learn about the advances of teaching techniques.  It is especially important that instructions key in on the more hazardous areas of a particular sport such as avoiding a wild pitch, tackling techniques, body check etc…

Safety Rules and Procedures – Safety rules procedures should be reviewed before and during every practice and game.  They require constant reinforcement with special emphasis on the purpose and intent of the rules and the types of injuries they are meant to prevent.  Any rule changes dealing with safety should be reviewed with all coaches during the pre-season with an emphasis on the types of injuries they are meant to prevent.

Consent to Treatment – Health care providers can’t lawfully render treatment to a patient without consent.  When a minor is involved, consent must be obtained from a parent of legal guardian.  In life threatening situations, the law assumes that consent is given.  However, once the patient has stabilized, consent must be obtained for further care.  Having a “consent form” on file may provide some protection against a parent’s claim that emergency care was not authorized and can help to overcome apprehensions of health care providers about rendering treatment before lawful consent is obtained.  Also, such consent forms should list if the athlete is allergic to any medications and should specify who should be notified in the event of an emergency.

First Aid and CPR – All coaches should be certified in basic first aid and in CPR.  The coach should not exceed the scope of his training in administering first aid.  The purpose of first aid is merely to stabilize the situation by preventing it from worsening.  Once the situation has been stabilized, all other treatment should be provided by a doctor.

Emergency Medical Plan – Should be developed and must be tailored to meet the association needs.  Coaches should be specifically trained how to activate the Emergency Medical Plan.

• Who calls an ambulance?
• Who stays with injured athlete?
• Where is nearest phone?
• What is nearest treatment facility?
• Where is the “consent to treat” form?
• Does the athlete have any medicine allergies?
• How to notify parents
• How to initiate crowd control
• Who meets ambulance and guides them to the injured athlete?
• Who accompanies the injured athlete for treatment?
• Who supervises the team?
• Who provides proof of insurance?

Return to Play – Once an athlete has suffered an injury, the decision regarding the appropriate time to return to play should be made by a doctor.  The coach should not put pressure on an athlete to return too early and the instructions of the doctor should always be honored.

Design and Layout – The design and layout of the facility should meet all current standards, regulations, codes and guidelines as prescribed by local building codes, the governing body of the sport and by facility design architects.  Whenever necessary, facilities must be redesigned, refurbished, or abandoned if they do not meet the prescribed codes and regulations. 

• Spectator areas in baseball that have no protection against an overthrown ball to first base
• Four – foot fences that represent a danger to youth hitting their heads on the top rail (same for six – foot fences in adult plan)
• Crowded basketball gyms where walls or other obstacles are too close to boundary lines
• Football fields with obstruction too close to boundaries like paved tracks or runways
• Low glass in hockey arenas

Adequate and Appropriate – Facilities should be adequate and appropriate for their usage in terms of size, configuration and quality for the activity.

Examples of inadequate and/or inappropriate usage include:

• Having a 15 or 16 year old baseball team conduct practice on a field used by t-ball players
• Conducting batting practice in a gym while a basketball team is practicing at the other end
• Having a basketball team that is used to playing in a spacious gym conduct a full court scrimmage on a short court with a wall mounted goal
• Wrestling team practicing in a dance facility with mirrored walls

NOTE:  In the above examples, it is possible that certain changes could be made in terms of safety equipment or activity modification that could still allow for safe and productive practice sessions.

Controlled Access – Facility owners/operators can be sued as a result of injuries to unauthorized trespassers and even vandals.  In order to protect against this, the following steps should be taken:

• Use fences, walls, locked gates, doors and security fences whenever possible
• Post signs warning of the prohibited uses; however, do not solely rely on them in lieu of fences, gates etc….
• Whenever unauthorized users come to your attention, take immediate action to enforce your rules or prosecute, otherwise you may have waived some of your legal defenses.

Inspection, Maintenance and Repair – Systematic inspection, maintenance and repair is the most important elements in preventing facilities related injuries and lawsuits.  Due to continuous use of facilities and exposure to weather, the conditions of the facilities are subject to constant change.  The dynamics of this changing environment require a written facilities maintenance program that must be customized for the unique nature of each facility.  The recognition of all hazards and the corrective action planned or taken should always be documented in writing by the RMO.  This not only helps the responsible party to verify elimination of the hazard, but also provides legal evidence of your care in correcting the unsafe condition.

• A checklist must be developed for the inspection, maintenance and repair of items on a daily, weekly and seasonal basis.
• The maintenance plan must be effectively communicated and implemented to the crews and custodians.  Monitoring and quality control must be performed by the RMO.  Records should be kept which document all maintenance and repairs.
• Inspection and maintenance plans must be effectively communicated to all coaches.  Responsibility rests with coaches, managers and officials; it is important that players are a part of this process and alerted to hazards.
• When hazards are detected, they should be addressed immediately and appropriately.  It does no good to identify hazards if they will simply be ignored.

• Sweeping, mopping and surface cleaning of all facilities used by the public
• Sanitary facilities such as bathrooms and locker rooms should be checked on a periodic basic (for example; hourly or two times per day) and cleaned as necessary.
• Check to make sure all equipment, including safety equipment is operating properly

On outdoor fields:

• Police and correct playing fields, out of bounds areas, players benches, spectator areas parking lots, and all routes to and from for glass, rocks, trash, roots, hypodermic needles and other objects
• Police and correct all fences from protruding points, missing or disconnected links and damaged posts
• Police and correct home plate and pitcher’s rubber for raised or torn edges protruding anchors or spikes
• Police and correct all lighting fixtures that are burned out, missing or misdirected
• Police and correct spectator areas for placement behind fencing whenever appropriate
• Fill in all holes and depressions on the playing field(s)
• Police and correct all irrigation heads for breakage, settling or elevations

During inclement weather, if the playing field can’t be readied, it should not be opened. Standing water or muddy areas should be corrected before play begins.

Weekly Inspections, Maintenance, Repairs Examples:

• Restore outfield lines as needed or field markings for football and soccer
• Edge infields and baselines to keep proper widths of base paths
• Check and remove the build-up where the infield meets the turf line of the outfield
• Add additional clay/sand mixture to areas forming low spots in the infield and topsoil to low spots in grassy areas
• Where necessary, wax or use specific cleaning agents on floors and playing surfaces in community centers and gymnasiums
• Mow fields used during season to 1 to 1.5” length and 2 to 3” in off-season

Seasonal Inspections, Maintenance, Repair Examples:

Legal Basis for Equipment Related Lawsuits - Manufactures, distributors, sports organization, administrators, and coaches can be sued based on faulty design, improper fitting, lack of maintenance and care and non-compliance with standards, accepted practices and rules.

Long Range Planning – Advance planning on equipment issues is required due to the need to set budgets well in advance.  Also, equipment repaired and refurbishing can be a lengthy process that should be started immediately after the end of the season.

Appropriate for Use – All equipment should be used only for its intended purpose as prescribed by the manufacturer.  Sports administrators and coaches are responsible for collecting instructional materials from the manufacturer that contains information about the intended use, age group, capabilities and limitations.  The equipment must comply with applicable standards including governing body, sports organization and C.S.A. specifications.

Equipment Modification – Modification of equipment should be avoided as this can result in the manufacturer’s warranty being voided and in additional liability being transferred to the sports organization.  However, some equipment is designed to be modified to meet certain needs, usually fitting.  Such methods of modification are included in the manufacturer’s instruction materials.  Absent such instructions – never modify, always required all modifications to be made by the manufacturer’s representative.

Selection – Prior to purchasing equipment, the sports administrator should obtain complete information such as governing body or sports organization equipment requirements including minimum specifications, C.S.A. requirements for certain equipment such as baseball and hockey helmets and manufacturer’s guidelines concerning design purpose, intended use and quality.  Equipment must be age use appropriate.  Never purchase less expensive equipment that looks similar to more expensive equipment if the less expensive equipment was not designed for an older age group.

Inspection - The condition of equipment is constantly changing due to misuse, collisions, wear and tear and other environmental factors.  For these reasons, athletes should be instructed to inspect their equipment on a daily basis and after any occurrence that results in a change in condition of fit – such as an unusually hard collision or use by another athlete.  Coaches should reinforce the inspection habits of athletes by inspecting the athlete’s equipment once per week.  Tools or replacement parts used to repair damaged equipment as well as an adult qualified to make repairs should be available for immediate correction.  In addition, spare equipment should be available in the event that an immediate repair can’t be made.

Fitting – Coaches are responsible for making sure that all equipment fits properly.  Equipment that is too large, small, tight or loose presents an increased exposure to injury.  Also, improperly fitting equipment creates a problem when athletes try to make their own modifications such as taking protective padding out of a helmet.  Coaches are also responsible for making sure that athlete provided equipment fits properly.  Coaches should instruct athletes to bring fitting problems to their attention so that immediate corrections can be made.

Maintenance, Repair and Conditioning – Maintenance is the ordinary upkeep of equipment – cleaning, tightening screws, restoring air pressure etc… Repair is replacement of worn or broken parts or correcting major problems.

Responsibility for these tasks must be assigned to a properly qualified person – preferably a trained equipment manager or other designated adult.  Such individuals must follow the guidelines and specifications of the equipment manufacturer that can be obtained from literature, bulletins or discussions with the manufacturer’s representative.  Whenever in doubt about a repair to a piece of protective equipment, it is best to transfer this liability to an authorized manufacturer’s representative.

Reconditioning is an attempt to restore equipment to its like new condition.  While it is possible that some reconditioning can be performed by the trained equipment manager, it is usually best to send the equipment to a reputable reconditioning business.  Exercise particular caution when dealing with protective products.  Whenever in doubt it is best to transfer the liability for reconditioning to another party.  Whether reconditioning you own equipment or contracting out to a re-conditioner, be aware that C.S.A. may require recertification.  Be sure to strictly adhere to these requirements.

Certain cleaning chemicals and paints can damage equipment resulting in an increased liability risk.  Always check the manufacturer’s literature before using chemicals or paints and never allow your athletes to paint their own equipment or to wash it with anything other than water.

Replacement – Manufacturer’s guidelines should be followed in determining the useful life of equipment.  It is best to be conservative and to replace equipment prior to the end of its useful life rather that to place an athlete at risk.  Such replacements should be planned well in advance of new sports season.  In larger sports organizations, a certain percentage of equipment units should be replaced each year in a regular cycle to avoid wide variations in the age and quality of products.

Record Keeping – Written records are critical in protecting against an equipment related lawsuit.

• Each piece should be assigned a permanent inventory number that is readily visible on the equipment for ID purposes
• An inventory record should be kept for each piece documenting the following; inventory number, manufacturer, distributor and date of purchase
• For each year – name of athlete to whom issued including verification of return
• Keep written notes regarding maintenance problems, repairs and reconditioning

If an athlete suffers from an injury that could result in a lawsuit, the equipment and its record should be put aside in a safe place until the possibility of litigation has passed.

Athlete Supplied Equipment – In many sports, there is an increasing trend of athletes providing their own equipment.  This may result from budget restrictions or when an athlete has special needs or desires that can’t be met by the equipment issued by the organization.

Athletes should be allowed to provide their own equipment only if there is a sound reason to do so.  The equipment should be comparable in quality and meet all standards as set by the sports organization.

Motor Vehicle Record Checks (MVR’s) - MVR’s should be provided on an annual basis on at least all personnel who will be transporting passengers whether in the own vehicles on in vehicles owned by or leased to the sports organization.  A driver with an unacceptable MVR should be put on non-driver status and prohibited for transporting passengers (formally or informally) or running errands on behalf of the organization.

MVR’s can be obtained inexpensively by the volunteer from MTO upon presentation of the driver’s full legal name, date of birth and driver’s license number.  Objective criteria should be set in determining what constitutes an unacceptable driving record.  For example, the following violations should result in driver disqualification:

• MVR contains a total of more that 3 minor violations or accidents over the past 3 years
• MVR shows two at fault accidents within a 3 year time period
• MVR shows any serious violation within the past 3 years such as DUI, reckless driving or speeding 20mph over the limit.

Also, it may be prudent to mandate or recommend certain safety equipment even if such would exceed the requirements of the organization, if any.  Examples of new safety equipment that has proven to be effective in baseball/softball include batter’s faceguard, safety bases, fielder’s mouthpieces, fielder’s goggles and safety balls.

Two leading sports insurance claims managers in the U.S. had this to say:

“A waiver or release is a written agreement where the player and parent sign promising not to sue the league, school, its directors, officers, operators  or volunteers should the player be injured”

In the context of a minor (under age 18) the usefulness of a waiver/release agreement is dependent on your particular provincial law.  Provinces will give some weight to a waiver/release (in the minor context) if the following three conditions are met:

1. The intent is crystal clear and written in language that is easily understood
2. The injury is more accidental in nature and not the result obvious negligence
3. The waiver/release is “well drafted” and avoids common pitfalls.

If the above 3 conditions are met, most courts still will not immediately throw out a lawsuit.  Instead, the legal system will give weight later on in the process, as the injured party’s attorney must overcome the defense’s presentation of the waiver/release.

Because the benefit occurs later in the legal process, legal defense costs can still be extremely high.  This is why a waiver/release absolutely should not be used in lieu of purchasing liability insurance.  Nevertheless, the benefits is still very important because it will ultimately limit the amount of damages that are payable.  This is why most insurance companies strongly recommend or mandate the use of waiver/releases.  Remember, lower claims may mean lower renewal pricing on your insurance.

By the way, waiver/releases are very effective in the adult context.  Provinces uphold this view as long as the waiver is well drafted and the injury is not characterized by gross negligence.  But once again, even if you win, your legal defense costs may range upwards of $10,000.00.  The bottom line is that a well-drafted waiver/release is worth the paper it’s written on.

You might be asking yourself what constitutes a “well-drafted” waiver/release.  Quite simply, it means that virtually every phrase in every sentence was specifically written to counter a court case that found a pitfall that resulted in the waiver/release being thrown out.  There are at least ten common pitfalls that must be avoided.

1. The wording must not be unclear or ambiguous. It must be worded in simple terms easily understandable by the common man. Legalese should be avoided.
2. The print or type must be large enough to be easily read – at least 10 point type.
3. Never commingle your waiver/release on the same page with another registration form. Many courts will strike a commingled waiver/release because it is not conspicuous.
4. Gang signatures are frowned upon by the courts where all participants sign underneath the waiver/release language. The reason is because if a line forms where   parent/players are waiting to sign, the parents/players in the front of the line may feel rushed and they might not understand the rights that they are giving up.
5. The first sentence should state “In consideration of being allowed to participate… “A waiver/release is not a valid contract unless all parties receive consideration (“something of value”). The consideration received by the sports organization is the promise not to sue and the consideration received by the player/parent is the right to participate.
6. The waiver/release should describe the full range of possible injuries including the key words “permanent disability” and “death”
7. All risks should be assumed, both “known and unknown”. The key word here is “unknown”.  Some waivers get too specific and limit risks to games and practices and this may lead to the omission of important risks such as transportation for “negligence”.
8. The waiver/release should never attempt to disclaim responsibility for “gross negligence” or other outrageous conduct. It should disclaim responsibility for “negligence”.
9. The waiver/release should have a phrase releasing the organization from negligence To “the fullest extent permitted by law”.; This magic phrase may allow a court to strike the phrases that are contrary to the provincial law while leaving the rest of the waiver/release in tact.
10. A new waiver/release should be signed before each season even if one is on file from a previous season.

1. RISK MANAGEMENT MANUAL, Draft prepared by South Carolina Recreation and Parks Association, 1992
2. 2) SPORTS INJURY RISK MANAGEMENT and the KEYS to SAFETY, Produced by Coalition of Americans to Protect Sports (CAPS) in conjunction with Richard T. Ball.
3. 3) SADDLER & COMPANY SORTS INSURANCE

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