EDITORIAL – “I contracted COVID-19 at the in-person game at FC Dallas. Before they let me come in, I had to sign the FC Dallas COVID Waiver. Can I still sue FC Dallas?”
Yes, fictional person I’ve made up for this article. You can absolutely still sue FC Dallas despite signing a waiver saying you wouldn’t.
In-Person Game COVID Concerns: You Can Sue Despite FC Dallas COVID Waiver
The end of the MLS is Back tournament also brought the end of MLS playing in a bubble. Now MLS begins a brand new experiment in trying to play games at teams’ home stadiums (with the exception of NYCFC and Toronto FC). Wednesday’s FC Dallas-Nashville game was the first MLS game to be played outside the bubble. It was also the first game that a limited number of fans were allowed to attend.
Sports in 2020: the Lamar Hunt statue in front of Toyota Stadium wears a mask in addition to an FC Dallas scarf: pic.twitter.com/jShEw8homl
— Ian Thomas (@byIanThomas) August 13, 2020
Prior to attending August 12’s FC Dallas-Nashville game at Toyota Stadium, fans were required to sign a waiver. This agreement purportedly waived any right of fans to sue based on COVID.
Typically, there are two primary purposes for a waiver or release agreement:
1) To exculpate the company from claims from simple negligence.
2) To provide evidence of the company’s warning of inherent or other risks that can trigger an “assumption of risk” defense if the company is sued.
The waiver provided by FC Dallas is a classic example of an over broad waiver of liability. The waiver also limits any legal against FC Dallas, Toyota Stadium, etc, however, to arbitration.
Terms and Conditions of FC Dallas COVID Waiver
The first thing the waiver spells out is what the person signing is receiving in return waiving their legal rights. This is called the consideration, and in this waiver the consideration is “being permitted to enter and remain at Toyota Stadium.” (emphasis in original).
Section 1 of the waiver lists the risks the signer will assume by entering the stadium. The waiver notes that COVID-19 is “an extremely contagious disease that can lead to severe illness and death, and there is an inherent danger and risk of exposure to COVID-19 in any place where people are present.”
It goes on to say “no precautions” can eliminate the risk of exposure to COVID-19. This section ends in all caps “I FULLY UNDERSTAND AND KNOWINGLY AND VOLUNTARILY ASSUME ALL RISKS RELATED TO MY ENTRY.”
Getting excited to attend a game yet?
Unenforceable Provisions of FC Dallas COVID Waiver
Section 2(A) is where it gets good:
To begin with, courts will not allow you to waive “any and all claims” against anybody. To do so would mean that you are also waiving any right to sue if FC Dallas or its agents intentionally injure or infect you with COVID. Courts have ruled that it is contrary to public policy to uphold contracts that waive liability as to intentional conduct.
Let’s say the FC Dallas board got together and nefariously decided to invite fans to the match to sit on needles placed in the seats of the stands infected with COVID. You are absolutely still able to sue FC Dallas for all their worth regardless of what you signed waiving “all” claims.
Courts have allowed waivers of simple negligence, but anything above that is unlikely to hold much water. The FC Dallas COVID waiver is designed to do one thing. It is designed to scare people away from trying to pursue legal action at all.
The Arbitration Clause Of The FC Dallas COVID Waiver
The most important thing you are doing by signing this waiver is giving up your ability to participate in a class-action suit. Hand in hand with this is the agreement to pursue all legal action through arbitration. Such arbitration agreements have been upheld as valid by the courts, despite their lopsidedness.
These are the most important provisions of the FC Dallas COVID Waiver, because the only realistic way an attorney would take on any case trying to sue FC Dallas over COVID would most likely have to be through a class-action suit to generate enough funds for a law firm to take on the case and FC Dallas’ high paid attorneys.
So if you are infected by COVID, you can still sue. However, instead of seeing a judge, your suit will be decided in arbitration.
What’s so wrong with arbitration?
Many have found it is much more difficult to be successful in arbitration than in court. This is due to the fact that arbitration lacks the same rules of due process afforded in court. It is also the corporation that gets to decide whether to include fairness protections in the arbitration procedure. Even if successful, “arbitrators are often reluctant to award generous damages to prevailing parties, and their awards are not appealable.”
Did you go to the FC Dallas game and catch COVID? You can absolutely still sue. The issue is whether you will be successful in arbitration, and what you’ll be able to recover.
