The NFL is considering requiring fans attending games this season to sign liability waivers shielding the teams from COVID-19 lawsuits, sources said. The waiver proposal is likely to be forwarded to clubs by the middle of next week as part of a broad range of league recommended best practices for re-opening stadiums amid the coronavirus pandemic.
The league has said almost from the beginning of the pandemic that it expects to play its season as normally as possible. Teams are preparing for a range of scenarios, from no fans to nearly full stadiums, and the NFL is leaving those choices to the clubs and local health regulators. But as new cases of coronavirus have surged 80 percent in the U.S. the last two weeks, it seems all but inevitable that if fans are allowed into stadiums, reports will emerge of some who attended NFL games contracting COVID-19.
Bob Hilliard, a plaintiff’s attorney, does not believe a potential NFL waiver would hold up in court:
Strange things about waivers…they are fragile — often easily breakable. Especially, as I assume here, when you are asking fans to waive their rights even if the NFL is negligen(t), grossly negligent, etc. Comes down to proportionate power — and the NFL has a high hurdle to claim that a fan has an actual choice. Let’s say a fan and his family go to a game. The team/NFL allows, by poor processes, that fan and his family to be exposed to Corona and everyone dies. The waiver defense will either be a question of law for the judge, or a question of fact for the jury, depending on the jurisdiction and the particular facts. I’d take the case.
Irwin Kishner, head of the sports practice at New York law firm Herrick Feinstein, which represents team owners, agreed a waiver is problematic but not necessarily invalid:
Waivers are governed by state law and speaking very generally and in over broad terms, are typically unenforceable depending on circumstances. Fans attending games, though, are assuming a level of risk by entering a stadium.
In contrast to Russian law, in American law, as a general rule, it is possible to waive rights arising from both the contract and the law. At the same time, you can waive both material and procedural rights. Waiver is possible even in respect of certain constitutional rights and rights granted to the defendant in criminal proceedings. In Russia, a person has the right not to exercise a right that belongs to him, and such a right does not cease in this regard, unless the exercise of the right is a condition for its existence; however, a person may in any case waive a right that belongs to him/her by expressly declaring it and terminating it by his/her will, unless this is prohibited by law.
Source: https://theathletic.com/ ; Boyko T. S., "Waiver and abstinence from the exercise of the right: Russian and Anglo-American approaches".