New FIRST Consent & Release Form with COVID-19 release

On the firstinspires.org dashboard, there is a new consent and release form for team main contacts, and I would assume for all participants. It’s pretty substantially revised from last year, and now includes information about potential exposure to COVID-19. I would strongly recommend everyone read it in detail before blindly clicking “Accept.” I understand that this form is necessary for FIRST to operate, but participants should read carefully and understand what they are agreeing to.

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What I (personally) find to be the relevant line…

Participant (or the Parent/Guardian of a Participant under 18 years of age) understands and agrees that the waiver and release of the right to make injury claims stated below waives and releases the right to make any and all claims whatsoever related to COVID-19 Exposure and any and all claims for any resulting injury, disability, or illness up to and including death.

Full text below:

Full Text

The Participant identified below (“Participant”) desires to participate (as a team member, coach, mentor, judge, volunteer, trainee, or in some other manner) in the FIRST ® Robotics Competition, FIRST ® Tech Challenge, FIRST ® LEGO® League, FIRST ® Professional Development, or another FIRST ® program (a “Program” or together the “Programs”). For detailed information about FIRST’s Programs and FIRST’s Youth Protection Program, visit www.firstinspires.org. As a condition of allowing Participant to participate in a Program, For Inspiration and Recognition of Science and Technology ( FIRST ) (“ FIRST ”) requires that the Participant (by his or her Parent/Guardian if under 18 years of age) agree to the terms of this Consent to Participate and Release Agreement.

  1. Assumption of Risk: (a) Participant (or the Parent/Guardian of a Participant under 18 years of age) understands that participation in the Program may expose Participant to risks of injury and illness including, without limitation, injury and illness resulting from building, lifting, and using electrical/mechanical robots and robot components; using tools; other participants; physical activities; COVID-19 (see below) and other infectious diseases; and other activities associated with participation in the Program. Participant (and the Parent/Guardian of a Participant under 18 years of age) understands that FIRST does not select, employ, supervise or otherwise exercise authority or control over the coaches, mentors, and other participants during their participation in the Program.
    Participant, if 18 years of age or older, acknowledges and agrees that he/she is primarily responsible for his/her safety. The Parent/Guardian of a Participant under 18 years of age acknowledges and agrees that the Parent/Guardian is primarily responsible for the Participant’s safety and that the Parent/Guardian will monitor, as appropriate considering the age of the Participant and other factors, the Participant’s participation in the program.
    (b) COVID-19. Participant (or Parent/Guardian of a Participant under 18 years of age) understands and agrees that participation in the Program presents certain risks and dangers to Participant, both serious and minor, arising from being exposed to the COVID-19 virus. COVID-19 is a disease caused by the virus SARS-CoV-2, declared by the World Health Organization to be a global pandemic. Participant (or the Parent/Guardian of a Participant under 18 years of age) understands that COVID-19 is considered highly contagious and is primarily spread from person-to-person, including by asymptomatic persons. COVID-19 is more likely to spread when people are in close proximity to one another. Participant (or the Parent/Guardian of a Participant under 18 years of age) understands that, while participating in a FIRST Program, Participant will be in close proximity to other persons, some of whom may be infected by, and able to spread, COVID-19.
    Participant (or Parent/Guardian of a Participant under 18 years of age) understands and acknowledges that, given the unknown nature of COVID-19, it is not possible to fully list each and every risk of contracting COVID-19. Nevertheless, some of the generally understood risks include health consequences, personal injury, illness, permanent disability and even death, and may include coughing, shortness of breath, difficulty breathing, fever, chills, shaking, muscle pain, headache, sore throat, loss of taste or smell, pain or pressure in the chest, confusion, upper respiratory distress syndrome, pediatric multisystem inflammatory syndrome, and other symptoms and risks. (“COVID-19 Exposure”).
    Participant (or the Parent/Guardian of a Participant under 18 years of age) understands and appreciates that COVID-19 risks are inherent in participating in a FIRST Program and that Participant may contract COVID-19 as a result of participating in a FIRST Program. Participant (or the Parent/Guardian of a Participant under 18 years of age) agrees that Participant’s participation in a FIRST Program is voluntary and Participant and the Parent/Guardian of a Participant under 18 years of age hereby knowingly assume the risk of any and all COVID-19 Exposure . Participant (or the Parent/Guardian of a Participant under 18 years of age) understands and agrees that the waiver and release of the right to make injury claims stated below waives and releases the right to make any and all claims whatsoever related to COVID-19 Exposure and any and all claims for any resulting injury, disability, or illness up to and including death.

  2. COVID-19 Symptom-Free Participation: Participant (or the Parent/Guardian of a Participant under 18 years of age) agrees that Participant will not participate in-person in a FIRST Program if Participant or any individual residing in the same home as Participant has had any symptoms of COVID-19 during the 14 days preceding the date of participation. Participant (or the Parent/Guardian of a Participant under 18 years of age) agrees that Participant will comply with any COVID-19 screening or exposure control practices which may be adopted by FIRST when participating in a FIRST Program and will also comply with any COVID-19 requirements of the state or local jurisdiction in which the Participant is participating.

  3. Release of All Claims: In consideration for FIRST allowing the Participant to participate in a Program, Participant (or the Parent/Guardian of a Participant under 18 years of age for and on behalf of the Participant and the Parent/Guardian) assumes all risk of such participation and hereby releases FIRST and (except as expressly provided below) all FIRST directors, officers, employees, volunteers, and agents from any and all claims for any accident, illness, injury, disease of any kind, loss or damage to personal property of/to the Participant (and the Parent/Guardian), including without limitation , COVID-19 as described above, or other damages that may occur as a result of the Participant’s participation in the Program, including without limitation any injuries, diseases, or other damages that may be caused by negligence of FIRST or negligence of any FIRST director, officer, employee, volunteer, or agent ( including without limitation , negligently failing to adequately investigate or screen coaches, mentors, volunteers, etc.), and agrees not to file any lawsuit or otherwise make any claim against FIRST or any FIRST director, officer, employee, volunteer, or agent for any such accident, illness, injury, disease, or other damage. The Participant (and the Parent/Guardian of a Participant under 18 years of age) does not hereby release any claims against any individual person who intentionally causes injury to the Participant.

  4. Consent to Record and Collect Personally Identifiable Information, and Ownership of Recordings:
    (a) Participant (and the Parent/Guardian of a Participant under 18 years of age) understands that live broadcasts, photographs, videotapes, and other recordings (collectively the “Recordings”) may be made of participants in the Programs, including the Participant. Participant (and the Parent/Guardian of a Participant under 18 years of age) consents to those broadcasts, photographs, videotapes, and other recordings and the use thereof (i) as part of a record of the Program and (ii) to publicly promote FIRST and the Programs.
    (b) Participant (and the Parent/Guardian of a Participant under 18 years of age) understands that FIRST is the sole and exclusive owner of all right, title and interest in the Recordings including all copyrights and other intellectual property rights and that neither the Participant nor the Parent/Guardian of a Participant under 18 years of age will have any right to review and approve any such Recording before it is used or disclosed.
    © Participant (or the Parent/Guardian of a Participant under 18 years of age for and on behalf of the Participant and the Parent/Guardian) consents to the collection and processing of personally identifiable data, of the types and for the purposes expressed in the FIRST Privacy Policy. The FIRST Privacy Policy is available at FIRST Privacy Policy | FIRST or by requesting a copy by emailing Team Support at customerservice@firstinspires.org. Participant (or the Parent/Guardian of a Participant under 18 years of age) acknowledges they have read, understand, and affirmatively consent to the FIRST Privacy Policy.

Participant (or the Parent/Guardian of a Participant under 18 years of age) has read this document and understands that this Consent to Participate and Release Agreement includes a release and waiver of the right to make any injury or damage claims (as described above) and that it is intended to be legally binding.

By signing below, Participant (or the Parent/Guardian of a Participant under 18 years of age) acknowledges that they have read, understand, and agree to this Consent to Participate and Release Agreement.

This Consent to Participate and Release may be signed in counterparts.

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@Tristan_Lall educate us please.

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I think this form is reasonable from a “don’t sue us” standpoint, I’m just really disappointed in the lack of guidance to do something as simple as wear face coverings/masks, or try to maintain physical distance while possible, both of which I’ve seen teams not doing.

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This is one part I’ve been concerned with as well, I’m hoping this guidance will come as part of the Event Rules Manual for 2021, which it would make the most sense to be placed as more people will read and pay attention to the Event Manual rather than the Consent and Release form. Still would’ve been nice to see in here though. Also in terms of meetings: where is the “wear your masks and stay distant guidance” from FIRST? Seems like something pretty basic but I think a thread might’ve already covered this topic.

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Pretty sure this is the one you are referring to:

Oh, nice, seems like I missed that.

From a liability standpoint, makes sense to me. People choose to participate at their own risk. FIRST is reasonably providing remote and virtual programming, so I think this seems appropriate.

That being said, I agree with OP that everyone should be made very aware of this section before blindly signing.

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The issue of liability waivers vs. mere acknowledgements of risk comes down to an ethical judgment containing considerations of public policy, of legal strategy, and of business expediency. My general feeling is that trying to disclaim liability specifically related to the COVID-19 pandemic is an overreaction to a new and uncertain threat.

Given the role of FIRST as a charitable organization whose mission is inextricably tied to the public interest, I think it is fair to question whether the text of the agreement supports that public interest mission, or is instead one-sided in the manner of a contract of adhesion (i.e. a contract where one side exerts disproportionate power to dictate the terms, and uses that power to tailor the contract to their own interests to the detriment of the other party). (The fact that the competition is completely optional, and that not-quite-equivalent virtual challenges exist reduces, but does not eliminate the effect of a contract of adhesion. Everything is to some extent a choice, and the benefit of this doctrine would be lost if an element of choice was enough to allow completely unregulated freedom of contract.)

It is entirely possible that the drafting of the agreement was delegated to lawyers or other staff who were not instructed to consider the moral dimension, and instead believed that their role was to achieve a maximal reduction in liability exposure. I think that kind of management would be a mistake, but is by no means evidence of malice.

Even if that was not the case, it is understandable that FIRST’s (or any entity’s) leaders might stake out a position that seeks to minimize the organization’s liability. They are within their rights to want this. However, wanting to have no liability, and actually having no liability are distinct things.

Perhaps the key to interpreting this agreement is in realizing that FIRST or their legal/insurance advisers may correctly believe that by framing any potential future debate in the stark terms of an express agreement, they will be more able to defeat claims against FIRST. They may not even literally wish to absolve themselves of all possible negligence (having instead a more nuanced position), but if the starting point of any dispute is “it says here that you waived your rights”, the focus of the negotiation or lawsuit will tend to shift to FIRST’s advantage.

In many jurisdictions, it is not legally possible to disclaim all potential civil liability, because doing so is considered contrary to public policy. (And that’s probably the way it should be: I contend that there’s always the possibility of a bad act so deliberate and egregious, or so grossly negligent that someone ought to be held responsible, but for which the criminal laws don’t provide an appropriate remedy—in many cases, restitution is not available, for example.) However, in many situations you can still disclaim almost all civil liability, provided that you lay the correct foundation in the agreement.

As a practical matter, an agreement that is intended to operate in many jurisdictions may be phrased in terms of a superset of these requirements, but generally, you don’t have to acknowledge all the legal details that operate as a matter of law. This means that the court will sort it out if it comes to a lawsuit. In fact, because the boundaries of what is and is not disclaimable aren’t always clear (even to lawyers and other experts), often the most economical course of action is to ask for the world, because paying for legal research into the details of several possible extreme scenarios may seem like a poor use of funds, compared to the risk that that exact scenario will unfold. I acknowledge the practicality of that kind of business decision, even as I worry that it tends to externalize the cost of some harm on to the victims.

It is also common for insurers to request this sort of language, to allow them to try to mitigate losses due to claims. Insurance is in principle a way of pooling risk in a socially optimal way, but it is also a profit-making enterprise, and there is a tension between those objectives. Frivolous claims are not socially optimal, and one way to dissuade them is to propose to limit liability. But this can be taken too far: an insurer that denies all claims by default (pointing to the terms of a contract of adhesion that they insist upon) is not acting in a socially optimal way, and needs to be regulated. It’s not clear if FIRST’s insurer is influencing the terms of the agreement, or where the insurer stands on that spectrum.

Generally, instead of demanding a waiver, I feel that it is reasonable to ask for an acknowledgment of risks (and FIRST does a good job of enumerating several) because in case of dispute it can be presumed that the parties were in agreement that these risks existed. This immediately frames a dispute in terms of whether the exposure to those risks was actually unreasonable in the circumstances, or whether the harm came from another source that was not anticipated. However, mere acknowledgment provides neither party with certainty about the outcome. I think that as opposed to an overbroad contract that causes apprehension among individual participants about their rights and remedies, a lack of certainty is nevertheless preferable. And, as I noted above, that impression of certainty is often illusory anyway, because of legal limitations. It would be kinder to the participants to relieve them of their apprehension in advance, than to impose a Draconian fiction that is only revealed to be inapplicable after they have committed to legal action.

Another possible solution is to frame it in economic terms: in consideration for not charging as much money to attend the competition, FIRST and the participant agree that FIRST is not responsible for the cost of more thoroughly mitigating risks. In that regard, the parties would be agreeing (for example) that FIRST is not as responsible for training event staff to work safely and supervising their conduct, and that the cost savings are passed on to the participant. This might take the form of a waiver of ordinary negligence, which could reasonably be said to covered by the hypothetical cost savings. However, I’m not sure that it is reasonable to claim that a cost reduction is commensurate with an abject failure of management that constitutes gross negligence. Those are high-consequence, low-probability events that are notoriously difficult to price. The distinction between ordinary and gross negligence might therefore serve as a (fuzzy) line that enables the parties to come to an economically rational agreement about the apportionment of liability. But note that an economic framework doesn’t really work for volunteers, who pay no fees and arguably receive minimal personal benefit.1

I also don’t think the COVID-19 pandemic ought to change anything except the actual amount of risk, and obviously the decision about whether to even hold an event. By enumerating (ad nauseam) the harm caused by that disease, and the risk of contracting it, FIRST and the participant are in substantial agreement about what could happen. I think the emphasis on COVID-19 in the agreement signals that frankly, people are terrified of it, and default to protecting their interests. I sympathize with that sentiment, but I don’t think it is appropriate to tell a person that they “knowingly assume the risk of any and all COVID-19 Exposure” (even if that might actually be contrary to public policy and void). Instead, this ought to be a shared responsibility: everyone must inform themself of the risks and mitigations, and must commit to a reasonable standard of behaviour, and a portion of the liability. Society should also share some of the costs, because the essence of a society is mutual support in exchange for the opportunity to participate in shared experiences. The apportionment of liability should consider the factors above, but I think we all have to accept that in this situation there is no good way to know the possible risk-adjusted costs (like liquidated damages in a commercial contract), and that advance certainty is not a reasonable objective.

One final thought about personal vs. corporate liability, and also disclosing a potential conflict of interest. As a frequent volunteer and planning committee member, I would stand to gain some protection under the published agreement, because of the covenant not to sue. Because of my (or the average volunteer’s) more limited resources as compared to FIRST’s (a corporation, albeit a charity of modest proportions), there is a reasonable argument that a limitation on personal liability is less problematic than a limitation on corporate liability. I confess that I would presumably benefit from any reduction in liability, but at the same time acknowledge that hiding behind an agreement like this one might not be the socially responsible response to personal negligence (if it existed).

In the alternative, I would favour an approach where personal liabilities were subdivided into things principally related to a volunteer’s official responsibilites, and principally related to ordinary conduct—for example, different assurances and remedies related to bad decisions as lead robot inspector, versus bad conduct as a bearer of disease. It would be unobjectionable to me to ask individual participants (competitors and volunteers alike) to agree that they have no right to claim against one another for things like negligent decisions or false representations related to the competitive aspects of the event, but that such waivers do not extend to every personal injury. (LRI incorrectly applies the rules: no liability, but possible to request administrative recourse from FIRST. Lie to your LRI: no liability, but possible administrative recourse by FIRST. Harm someone accidentally or intentionally: liability in proportion to the circumstances, and considering the participant’s understanding of inherent risks of the event.)

1 Conspiracy theory: are the volunteer T-shirts token consideration intended to bind their wearers to the participant agreement?

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Tristan, isn’t it true that you can’t sign away your rights if the other party is negligent? In other words, if FIRST took due precautions and someone got sick anyway, they can’t sue because they signed the waiver. But if FIRST doesn’t take precautions, the waiver goes out the window?

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This is really all academic at this point, seeing as FIRST hasn’t even scheduled in-person events for us.

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Of course it’s academic. No one offered Tristan a retainer. He has a long history of providing academic legal analysis pro-bono. Right here on our favorite internet board.

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It depends on how much negligence, the nature of the service being provided in conjunction with the waiver, and the jurisdiction. I believe it is frequently possible to sign away ordinary negligence, but rarely gross negligence. To be reasonably certain, I think it would require a review of statutory and case law for the applicable jurisdiction.

Here’s another summary that goes into some of the considerations, including some different approaches by jurisdiction. There’s a reference to a precedential case where the public interest was determined to overcome waivers of negligence according to a 6-part test. In that situation, a hospital was unable to rely on a waiver of negligence, but a non-essential business might have been. (To be clear, my use of “public interest” in the preceding post wasn’t intended to be equivalent to the “public interest” articulated by the Tunkl court…I used the same words for a less specific concept.)

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Others may find NPR’s Planet Money newsletter article “Should We Shield Businesses From COVID-19 Lawsuits?” intriguing like I do. It’s from a few months ago, though I don’t remember seeing any follow-up. It may still be at least somewhat unclear what legal risks corporations (including non-profit corporations) are exposed to that waivers may help with.

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Clarifications were supposed to come out with the next relief bill… but many of the drafts have included blanket business protections that other leaders view as poison pills.

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There were a couple other thoughts that also occurred to me, regarding some of the COVID-19-specific clauses.

COVID-19 Symptom-Free Participation: Participant (or the Parent/Guardian of a Participant under 18 years of age) agrees that Participant will not participate in-person in a FIRST Program if Participant or any individual residing in the same home as Participant has had any symptoms of COVID-19 during the 14 days preceding the date of participation.

That symptom check doesn’t really make any sense. COVID-19 has many symptoms, and subsets of those symptoms are also shared by a multitude of other conditions, some chronic and some idiopathic. In particular, the pains and gastrointestinal symptoms are an extremely poor way to deduce a COVID-19 condition because of the variety of other reasons those symptoms might be encountered. It’s fair to require people to stay away if there is a significant chance that they are infected, but this is not a reasonable way to make that determination.

Including other household members in the symptom check also means that it is possible to unknowingly breach the agreement because they never mentioned a symptom. Are you therefore expected to ask them? What if the answer is “I had a headache about 13 days ago”? Is that supposed to be an actionable reason not to participate? That would be absurd, because taken alone it is not a sufficient basis to believe that they were infected with SARS-CoV-2.

As a practical matter, it is difficult to define a screening protocol that most people can and will follow, and even more difficult to communicate it in a dense agreement which FIRST obviously doesn’t expect many of its participants to carefully read.

Participant (or the Parent/Guardian of a Participant under 18 years of age) agrees that Participant will comply with any COVID-19 screening or exposure control practices which may be adopted by FIRST when participating in a FIRST Program and will also comply with any COVID-19 requirements of the state or local jurisdiction in which the Participant is participating.

Is the specification of “state or local jurisdiction” reflective of an American outlook where much of the response has been delegated to state and local authorities, or where the national response might not be held in equally high regard? Or is it just an omission?

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Most countries outside the usa are states, so on the surface this isnt actually that weird of a phrasing to me?

Good point; that’s a perfectly valid usage too. (I still wonder why they didn’t leave it at “jurisdiction”.)

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One of the hallmarks of FIRST events has been the opportunity to showcase hands-on STEM to the various communities. Typically the events are publicized and advertised with the intent of encouraging community attendance. The only constraint upon the public attendee is safety glasses in the pits.

Assuming that FIRST does not require use of PPE for all present, does this form a breach of the agreement that FIRST is requiring volunteers to sign?

I came across an opinion piece by a law professor discussing some of the characteristics and likely effects of waivers of COVID-19-related liability. It includes some citations to other articles (particularly this one by the same author from a few years ago) that try to describe and quantify the effect on the public of this kind of agreement.

His general conclusion is that these waivers do not serve the public interest, and should be prohibited outright (not just found unenforceable). I would be curious to learn whether there are any equivalently supported contrary arguments.

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