As a professor of sports law at Syracuse University and a lead editor of the book, “Law for Recreation and Sports Managers”, attorney John Wolohan knows a thing or two about release of liability waivers. Below, Mr. Wolohan briefly explains some of the basics of waiver law and the benefits of using digital smart waivers.
 

The Waiver Basics
John Wolohan, J.D.

While it is undeniable that electronic waivers, signed by an adult, can be an effective tool in protecting sport and recreation providers from negligence liability, some organizations may still have questions about what a waiver is and the benefits of going digital.

Before considering electronic waivers, it is important  to understand how the courts have traditionally viewed waivers.  Basically, a waiver is a contract in which a person agrees to relinquish his or her right to sue the service provider in any event the participant is injured due to the provider’s simple negligence.

When reviewing the legality of waivers, therefore, the courts will apply fundamental contract principals.  As such, it should be noted that depending on the jurisdiction and how well the waiver is written, the majority of courts will uphold the legality of the electronic waiver.  In addition to contract law, it should be noted that electronic waivers and other electronic contracts are also governed by two additional laws: the Electronic Signatures in Global and National Commerce Act (E-SIGN), at the national level, and the Uniform Electronic Transactions Act (UETA) at the state level.

E-SIGN, which was signed into law by President Clinton in 2000, is designed to give legal protection to online or electronic contracts and give them the same weight as paper transactions. In addition to clarifying the legality of online or electronic contracts, E-SIGN also clarifies what constitutes an electronic signature.  Under E-SIGN “the term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record”

And while clicking on or checking a box to accept the terms of the waiver may be protected by the courts, the “smart waiver,” by allowing the user/participant to actually sign the form electronically provides even stronger legal protection in the courts' eyes. With the user/participant’s signature as evidence, it is clear that the individual signed the document and understood what he or she was signing.



Another benefit of digital smart waivers is that the waivers make it simple to include a statement concerning which jurisdiction or state laws will apply in the case of a lawsuit.  The reason this is so important with online or electronic waivers is because you do not want to be defending a lawsuit in an out of state court.  A real possibility in today’s electronic age, since most state courts are willing to exercise jurisdiction over out-of state and international businesses if they believe that the business, by purposely soliciting commercial activity from out of state participants, has sufficient commercial activity within the state to make jurisdiction reasonable.

ONLINE WAIVER CHECKLIST
The following checklist is designed specifically for sport and recreation administrators, but should be followed when writing any type of waiver. Important to note: when drafting your waiver the language should always be reviewed by an attorney familiar with your industry and state laws.

• The waiver should be clearly titled and descriptive (e.g., Waiver & Release of Liability);
• The waiver should use clear and easy to understand language;
• The waiver should not contain any fraudulent statements;
• The waiver should clearly and unambiguously state that the signer is releasing the service provider from liability for injuries resulting from the ordinary negligence of the provider;
• The waiver should contain some statement denoting consideration (e.g., “In consideration for being allowed to participate in . . ., the signer agrees to . . . .);”
• The waiver should specifically identify the parties who are relinquishing their rights and the parties who are protected by the waiver;
• The waiver should be no longer than one page and all substantive terms should be visible and complete without hyperlinks to additional terms (Smartwaiver does not allow hyperlinks so you’re covered there);
• The user should not be allowed to click on the accept button without being allowed the opportunity to review the entire agreement;
• The reader should have the opportunity to read the document at their own pace and should have the ability to browse through and to view all the terms of the agreement;
• The waiver should have a statement indicating that the signer read the entire statement.

Again, if you have any questions about the legal language in your waiver, be sure to consult your legal adviser. If you have any questions about formatting your waiver and converting it into a smart waiver, contact the Smartwaiver Team.


- Attorney John T. Wolohan (jwolohan@syr.edu) is a professor of sports law at Syracuse University.