The proposal is likely to be sent to teams next week, along with an array of other best practices for re-opening stadiums during the pandemic. An anonymous source familiar with the league’s plans told Kaplan the forms would likely be electronic.
How ironclad the waivers would be in protecting teams from potential legal action is up for debate. Attorney Bob Hilliard, who’s sued MLB on behalf of fans hit by foul balls and spoke to Kaplan on the matter, questions how ironclad the waivers would end up being in court.
“Strange things about waivers…they are fragile — often easily breakable,” Hilliard said. “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,” he continued. “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.”
Kaplan also spoke to Irwin Kishner of New York law firm Herrick Feinstein, which represents team owners. Kishner acknowledged the problematic nature of waivers, yet does not view them as flimsy as Hilliard does.
“Waivers are governed by state law and speaking very generally and in over broad terms, are typically unenforceable depending on circumstances,” he said. “Fans attending games, though, are assuming a level of risk by entering a stadium.”
Other precautions expected to be recommended to the league include prohibiting cash payments at stadiums, only prepackaged food allowed at concession stands and a requirement for fans to wear masks. These recommendations will be made by the stadium reopening working group, which is led by NFL Senior VP of Security Cathy Lanier. Teams will likely make it a policy for masks to be worn even if they are in jurisdictions that don’t already require mask-wearing in public.