Electronic Signatures on Waiver and Release Forms

Can they be accepted?

Actual Client Question:

We were wondering if you require hard signatures on the release of liability form, player parent contract, code of ethics? We do online registration where everyone has their own password to login to their child’s registration, where we have “I Accept” buttons.  In the past, we have had the parents click those buttons and then we have printed the forms and had the parents come to another registration to supply a hard signature. Do you require a hard signature for insurance purposes or would the trigger button hold up in the event of a claim? What is the guideline for electronic signatures?

Answer:

I am not aware of any current court cases that provide a definitive answer to the question of whether electronic signatures on waiver/release forms will likely be upheld. I recently interviewed the claims department manager and general counsel for one of our largest insurance carriers in the sports insurance niche. They indicated that they did not want to inhibit e-commerce by not accepting electronic signatures on waiver/release agreements, but would be watching carefully for any court cases on this issue.

For now, electronic waiver/release forms are generally being accepted by the insurance carriers.

However, I have concerns that should be addressed. First, the electronic signature should be stronger than simply clicking “I Agree.” It should require the full name of the parent who is signing. Second, there must be a place for the minor participant to sign as well. Some may question this, but it is an absolute must. The minor must sign in order to trigger the assumption of risk defense as the waiver/release serves as the risk warning and the acceptance of risk by the minor. If these additional electronic safeguards can’t be initiated, I would advise the use of a paper waiver/release with a hard signature to supplement the electronic registration.

Of course, it goes without saying that the waiver/releases must be properly worded to be given weight in court; so many of them violate the basic principles of contract law. A copy of a sample waiver/release can be found in our risk management library.

– John Sadler