Waivers not a foolproof fix to play basketball

  • Fremd's Russell Beaupre gets to a loose ball before South Elgin's Drew Cwikin during a boys basketball game in South Elgin last season. Schools are wrestling with the decision on whether to play basketball this winter against state guidance, and the possible legal ramifications if they do.

    Fremd's Russell Beaupre gets to a loose ball before South Elgin's Drew Cwikin during a boys basketball game in South Elgin last season. Schools are wrestling with the decision on whether to play basketball this winter against state guidance, and the possible legal ramifications if they do. John Starks | Staff Photographer

Updated 11/6/2020 2:07 PM

Parenthood is kissing boo-boos and reading bedtime stories.

It's helping with homework and cheering at games. It's waiting anxiously until curfew is met with seconds to spare.


Once children reach the age of kindergarten, parenthood is also about signing waivers. Lots and lots of waivers.

A grade school field trip to a pumpkin patch or a museum? Please sign this waiver. Playing on the football team? Please sign that waiver. Allowing for your child's use of the internet at school, or for placing pictures of your child in the school yearbook? Please sign waivers for that, too.

By the time they have high school kids, most parents have probably signed hundreds of waivers. So, how about one more to get kids back to playing sports?

High school athletes in Illinois are again finding themselves stuck in a COVID-19 quagmire. Similarly to last spring when high school sports across the state were shut down due to the pandemic, winter sports are now at a standstill.

Due to an increasing COVID positivity rate in the state, Gov. J.B. Pritzker and the Illinois Department of Public Health recently deemed basketball a high-risk sport due to the potential for the spread of COVID-19, and have suggested that the season, scheduled to start later this month, be moved to the spring.

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Meanwhile the IHSA, the state's governing body for high school athletics, decided to defy the governor's guidelines and instead move forward with the boys and girls basketball season as scheduled, but at the discretion of each individual school district across the state.

That puts the school districts in a tricky spot.

Even though many kids and their parents want to move forward and play basketball, schools are hesitant to go against health recommendations from the state, which was also backed by the Illinois State Board of Education.

So, that's where waivers could come in, right?

Parents could just sign a waiver, like they do and have done for everything else over their children's school careers, and kids could then play basketball in spite of COVID and the perceived risk.

Well, not so fast.

Not a foolproof fix

Waivers, unfortunately, aren't bulletproof. Lawsuits can still be filed, and liability companies are telling schools that they will not cover COVID-19 claims.


"Waivers aren't a belts and suspenders type of assurance," Barrington District 220 superintendent Brian Harris said. "Is there value in waivers? Yes. Do they serve a purpose? Yes. Using waivers is always recommended as a school district by our legal counsel as well as by our liability insurance carriers. That's why we use them. However, do they preclude anybody from filing suit? No, they do not."

And that is the rub, at least here in Illinois, widely considered by those in the legal profession to be a very litigious state. The Illinois Trial Lawyers Association, which represents injured consumers and workers, has a strong presence and lobby in this state and has a reputation for fighting waivers and finding loopholes in waivers to win lawsuits.

"It would be nice if businesses and companies could rely on releases (waivers) to protect them from liability," said Charles Lemoine, an attorney at Dykema law firm in Chicago which represents a vast co-op of schools in Illinois that are part of CLIC (the Collective Liability Insurance Cooperative), which includes Barrington District 220.

"In some states, they (waivers) are very much enforceable. In other states, not so much."

Lemoine says that Illinois is one of those states where waivers are easily and often challenged.

"You could even say from county to county you could get variations in the interpretation of a release," Lemoine said. "You could take the same release, present it in one county and a judge may enforce it, then you bring it to another county and the judge won't enforce it."

Loopholes seem to be a huge problem with waivers that scare businesses and schools and any entity that uses waivers.

The worry for schools is that families of kids who may contract COVID-19 when playing basketball could turn around and try to sue the school district, even if waivers have already been signed.

"If we could get these (waivers) and they could be enforced and there could be a uniform release and waiver that all of the schools could rely on and say it's going to protect them, then hey, maybe, maybe it would work," Lemoine said of starting the basketball season on time. "But I know how people work in the real world. I've seen it.

"A parent will freely sign a release to let their kid play. But if that kid gets hurt, the first thing they do is they go to an attorney and they ask about the enforceability of the release and the attorney may challenge it."

Lemoine says that waivers are worded to try to cover every possibility, but that essentially, covering every possibility isn't possible and that something problematic and unusual that no one ever imagined could happen and could prompt a lawsuit.

"A release and waiver is better than nothing," Lemoine said. "But this is what (trial) lawyers do. They go out and challenge it and split hairs."

For example, if a parent consents to allowing his child to play golf and his child gets hurt when a teammate accidentally hits him in the head with a golf club, a parent might challenge the waiver, claiming the waiver never specifically indicated that his child could get hit in the head with a golf club while playing golf for the school. Even though the waiver releases the school from all liability and claims that could arise out of playing golf, a lawyer might still take on the case. If a specific unfavorable event or outcome isn't listed on a waiver, it could be challenged."

"In my mind, it is unfortunate that a simple release designed to encourage certain activities is often given short shrift in a court of law in Illinois. But that is the world we live in."

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