How to Create an Effective Risk Management Program without Increasing Liability
For national sports associations, including sanctioning and governing bodies, and their local member organizations
It’s important to understand the theory behind proper set up of an effective risk management program for a volunteer-run organization. We can’t expect as much out of volunteers as professional paid employees. Volunteers are generally not going to be as well trained, or have as much time to commit and as many resources as paid employees. This needs to be taken into account when designing a risk management program.
It’s also important to understand why local organizations are reluctant to adopt and implement risk management programs. Most just pay it lip service.We’ll look at the legal pitfalls to avoid and the critical sections that should be covered in any risk management program.
And we offer you an effective risk management program in a Microsoft Word document template that can be easily customized for any sport or local organization.
Why risk management programs need to be in writing
Risk management programs need to be in writing and distributed to all administrators and staff. Otherwise, it’s safe to say that risk management won’t happen.
The written document becomes your training manual. It’s passed down from one group of volunteers to the next. The average tour of duty for a youth sports volunteer is only three years, so there’s a lot of turnover and need to constantly train and educate. It also serves to to document your training program to show the judge and jury how much you care, which is, of course, very important — you’ll look ridiculous if you don’t have any training in place.
Risk management doesn’t have to be complicated or time consuming.
I’ve been told by a number of respected recreation professionals that the practice of risk management in the sports setting is as simple as educating staff on how to recognize the most common areas of risk such as physical hazards, unsafe acts and conditions, and how to respond to them. The response requires both taking immediate corrective action, if feasible, and notifying the risk management officer.
For example, if a an exposed sprinkler head is found during a soccer practice, the coach should immediately put up a cone over it, resume practice, and notify the risk management officer in writing. Another example is if a lightning storm is approaching during a baseball game and the 30/30 lightning rule is being ignored by the other coaches and umpire, a responsible coach should speak up and insist upon immediate postponement and inform your risk management officer to review and reinforce the rule again with staff.
The biggest obstacles to implementation
Over my 25+ year career, I’ve found that there’s a lot of reluctance for local organizations to adopt and implement risk management. They’re afraid that if they put something in writing and then don’t follow through, they’ll have even more liability.
They’re often sent to a seminar on risk management or take an online course and then asked to develop their own written program from the theory that was taught. Of course, no volunteer will have the time to follow through on.
Most available risk management program templates that can be purchased are not volunteer-friendly and tend to be designed for paid employees. They’re too long, too time consuming and overwhelming for volunteers to customize and whittle down.
A risk management program will never work unless a single risk management officer who has accountability and authority is assigned to implement the program and make day-to-day decisions.
Safety programs can be a double-edged sword if not set up correctly
From the perspective of the national sports association:
The use of the words safe and safety in marketing materials, on a website, or in a risk management program can be twisted around to a guarantee of safety and risk-free participation and can be used against you in a lawsuit.
I’ve seen this happen to Little League in their highly publicized abuse/molestation lawsuit when their materials said that they provided a “safe and wholesome environment” for youth. This was also the case in recent Pop Warner lawsuits on brain injury where online materials said that they were a “safety-first organization.” The word safety is often front and center in these lawsuits.
If you claim your program is safe, you’ve likely created a legal duty to police and enforce compliance at the local level.
From the perspective of the local organization:
Failure to adhere to your own safety standard is an obvious case of negligence, which can be very damaging.
Be very careful using the words safe and safety.
I recommend the words safe and safety be eliminated from your materials altogether or to the greatest extent possible. If you are going to use these words, you should mitigate their impact by clarifying in writing that safety means an attempt to make safer and disclaiming that use of the word is not a guarantee of risk-free participation. Of course, using the word safer is better than safe.
A better and less risky way to explain things is to say that, like any sport or activity, your particular sport entails risks but the benefits of participation greatly outweigh the risks.
Furthermore, representations of safe participation can be used by the plaintiffs’ counsel as an argument to invalidate the risk warning in a waiver/release agreement.
In my opinion, you should use the words risk management in connection to your program instead of safety. Risk management offers stronger connotation that you are taking steps to protect your organization and insurance carrier against litigation but are not necessarily guaranteeing safety. Letting something slip between the cracks despite your best efforts and not following your own risk management guidelines is likely less damaging than failing to follow your own safety standards.
Should national associations mandate or strongly recommend/provide resources?
I’ve had a number of conversations with legal counsel advising national sports sanctioning bodies on the issues of abuse/molestation and brain injury/concussion. The attorneys say that mandating rules and safety regulations can create a legal duty to police and enforce for compliance and that such a legal duty may not have existed in first place.
Counsel’s advice is to only mandate on the local level if the national association has the ability to and will police and enforce compliance on the local level. If not, the attorneys say that a national sports association should recommend risk management guidelines and make the risk management resources available.
But if you can police and enforce, mandating is fine. Examples would be for national teams supervised by your trained staff, tournaments hosted by the sanctioning body, or when a national association takes control of running background checks on all local staff.
It’s common for national associations to be wrongfully shotgunned into lawsuits when incidents occur at the local level. The plaintiffs’ attorneys always allege that the national association hired the local staff and that national has someone on location who is in charge. Of course, that just isn’t true in most cases.
We’ve had success with many of our clients by drafting an operational control provision that they inserted into their rulebook or membership agreement, which clarifies that the national association has no operational control and thus no liability for these local incidents. This provision has been successfully used by defense counsel to have our national association clients dropped from lawsuits quickly and inexpensively.
Shall vs. should in a risk management program
The words shall and should have specific legal consequences in risk management programs.
Shall denotes a mandatory requirement with no deviation allowed, similar to the word must. On the other hand, should denotes a guideline or recommendation where noncompliance is permissible based on individual judgment. However, there may still be a moral obligation to comply.
It is better to use the word should in two situations. First, if a national association can’t police and enforce locally and, second, to protect the local organization from the liability risk of noncompliance if they fail to meet a guideline.
Position the risk management as an awareness program, not a mandatory checklist
Another strategy to reduce the risk of failure of your volunteers to fully comply with the risk management guidelines is to position your program as an awareness training program.
In a perfect world, all recommendations and checklist items in the program should be complied with. But when talking about volunteer-run programs, that’s not likely to occur 100% of the time, which is why it is legally risky to position program as a mandatory checklist of items that must be completed. I first noticed many years ago that Little League called their program a “safety awareness program.” I didn’t like use of the word safety but did like use of the word awareness. I figured out they used the word awareness to help to protect their local leagues in the event that they did not follow though and implement all of their written program. I think this is a smart approach.
Of course, there are exceptions such as when requirements are mandated by state/federal legislation, the governing body, or the insurance carrier. An example would be state legislation that requires mandatory concussion risk management steps that must be taken.
Flip the formal risk management process when working with vounteers: Start with the most important and easiest
- Insurance policies
- Contractual transfer
- Avoid/Mitigate high-risk activities
- Special emphasis areas: abuse/molestation and brain injury
- Raise awareness on the following most common categories of sports related lawsuits and reverse engineer from case law.
The textbook risk management process teaches to practice risk identification, measurement, assessment, avoidance, contractual transfer, and loss control first and then how to pay for losses that can’t be prevented last.
However, in a volunteer-run risk management program, I like to key in on tasks in order of importance and easiest to comply with in case the volunteers never get around to doing everything they’re supposed to do. My program template starts out with the types of insurance policies to be carried along with the required limits and coverages followed by contractual transfer, avoiding high-risk activities, with special emphasis on areas such as abuse/molestation and brain injury, followed by awareness education on the most common areas that result in lawsuits.
Contractual Transfer of Risk to Other Parties
Contractual transfer means that one party’s responsibility for paying for damages is transferred to another party by contract.
This is a critical issue when it comes to protecting both the national association or local organization and the loss record of the insurance carrier. However, most risk management programs don’t even address this issue.
Typically, the stronger party transfers its obligation to pay for certain damages to the weaker party by way of waiver/release, indemnification/hold harmless provision, or additional insured status under General Liability policy.
Contractual transfer should be used offensively against the following parties:
- Participants via waiver/release
- Groups that lease or sublease your facilities
- Visiting teams when you host tournaments
- Vendors you hire such as umpire crews or janitorial
When the sports organization leases facilities from facility owners, the sports organization, as the weaker party, often has contractual transfer requirements imposed on it in the lease or permit. The sports organization needs to make sure that it meets the insurance requirements and that the indemnification/hold harmless provision is equitable.
Equitable means that the sport organization doesn’t want to assume liability when the facility owner is 100% negligent. Our risk management template provides guidance on all these contractual transfer issues, whether in offensive or defensive mode, and we have many excellent resources on waiver/release and how to negotiate situations where unfair indemnification/hold harmless transfers are imposed on sports organizations.
Avoid/Mitigate high-risk activities
- Overnight sleepovers
- Participant transportation
- 15-passenger vans
- Swimming entertainment
- Certain fundraisers (ex: inflatables, dunking booths, events where alcohol served)
One of the cornerstones of the risk management process is to avoid high-risk activities that are not mission critical and known to result in severity claims with large damages. If you can’t avoid them, you must take steps to mitigate the risk by use of loss-control techniques. A list of some of the most common high-risk areas situations are listed above. Our risk management template offers mitigation techniques for each of these areas.
I’m amazed at the number of times a swimming entertainment event resulted in a death or permanent disability situation. These mishaps seem to occur even when adult volunteers are on lifeguard duty. If you’re going to have a swimming function, I recommend only having such events at locations where the facility provides the lifeguards.
Special Emphasis Areas: Abuse/Molestation and Concussion/BrainInjury
Certain risks are so important that they deserve their own separate risk management programs. Abuse and molestation and brain injury are examples. These are also two areas where local organizations must go further than just awareness training and actually implement what is required by state legislation and insurance carriers.
We’ve developed a separate abuse/molestation risk management template that covers everything from A to Z. Many organizations make the mistake of just shooting from the hip and running background checks without a written program in place. That’s a great way to get your pants sued off for a number of offenses such as Fair Credit Reporting Act violations, libel and slander for not safeguarding confidential information, and inconsistent application of disqualification criteria. A written program with how you are going to administer the program must be in place before the first background check is run.
Brain injury is a huge issue right now, which is perceived by the insurance industry as a much more serious threat than abuse/molestation. We’ve developed two different brain injury risk management templates: one for lower risk concussion sports and another for higher risk concussion sports. Our simple programs cover all the bases that are required by state legislation and recommended by the CDC and governing bodies.
Awareness training on most common categories of sports lawsuits
- Improper supervision (most common)
- Improper instruction
- Improper sports injury care
- Failure to warn of risks
- Facility problems
- Equipment problems
- Auto risks
The final part of an effective risk management program should include these categories of lawsuits. Whenever I research sports case law and the sports risk management books, these are the categories where the vast majority of lawsuits arise. The loss runs of my clients will confirm these categories. Under each of these categories, I reverse engineered the case law to come up with awareness and response guidelines that would eliminate or reduce most of the lawsuits.
We offer a 17-page risk management template in a Microsoft Word document format, which avoids many of the common legal pitfalls and provides education on how to recognize and respond to risk. This template is easily customizable for almost any sport. In addition to the 17-page template, we have separate program templates for abuse/molestation and brain injury which can add another eight pages. Please contact me if you have any questions or would like to access these templates.
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