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University Liability Releases: Are College Athletes Getting Played by Contractual Waivers?

Washington Football Team TE Logan Thomas tackled

Photo Source: All-Pro Reels, Washington Football Team TE Logan Thomas tackled, Flickr  (Oct. 4, 2020) (CCBY-SA 2.0

By Raina Desai                                                                              Posted: 04/05/2023

In August 2017, Stetson University football player, Nicholas Blakely, collapsed at practice resulting in his cardiac death.[1]  Blakely complained to the football athletic director about chest congestion and trouble breathing but was not referred to the student health clinic for evaluation.[2] Later in practice, Blakely collapsed and ultimately died in the hospital.[3] Blakely’s family subsequently sued Stetson for their son’s death.[4]

The trial court granted summary judgment to Stetson based on liability releases that Blakely had signed.[5] However, the Court of Appeals of Florida later reversed the judgment finding that the liability waivers contained unclear and ambiguous language.[6] The court found that the language of the exculpatory clause failed to explicitly notify Blakely “that he was contracting away his right to sue Stetson” for negligence.[7] Rather, the language focused on the safety and regulatory risks of playing football instead of informing Blakely that Stetson would not be accountable for its negligence.[8] On its face, this language would not be problematic because Florida courts have held that explicit negligence provisions in waivers are not required.[9] Yet, it is problematic because when coupled with no negligence provision, it makes it seem that Stetson would properly (non-negligently) supervise and instruct Blakely and that Blakely was only being asked to sign the waiver to cover injuries intrinsic in the sport instead of also for the school’s negligence.[10] Lastly, the court found that certain phrasing in the release form also implied that Blakely would be covered for injuries to other players.[11] In conclusion, the Court of Appeals held that the wording of exculpatory provisions were “unclear and ambiguous.”[12]

Negligence is a “failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”[13] The four elements of negligence are duty, breach, causation, and damages.[14] Normally, a person or entity could be sued by another for negligence.[15] However, liability waivers are used as a way to shift risk.[16] Waivers promote public policy by allowing entities to receive a return on their investment for offering goods and services.[17] They allow entities to minimize costs and litigation by explicitly waiving a party’s right to sue for negligence.[18] Waivers also protect entities that encourage recreational activities, like sports.[19] It is important to note that certain parties cannot use waivers to shift risk for negligence because they provide essential services to the public, which requires a higher duty of care from them.[20] However, many other parties, including sports providers, are not considered vital to require this higher level of care.[21] Accordingly, they can relieve themselves from negligence claims through contractual waivers.[22]  Common negligence claims of sports injuries include the failure to properly train, failure to warn of risks, inadequate supervision, and negligent hiring.[23]  Normally, an injured party could not sue a sports provider for negligence if they signed a waiver.[24] However, if the party can prove that the waiver was ambiguous, the sports provider may be liable.[25]

Waiver failure can be blamed on ambiguity, which is why many states require that waivers explicitly state “negligence.”[26] Furthermore, states encourage waivers to specify “ordinary negligence“ because gross negligence cannot be waived.[27] As the Court of Appeals of Florida held, a waiver must explicitly inform an athlete that they are contracting away their rights to sue a school for negligence.[28] In addition to requiring explicit language, the court also discussed the issue of vague and confusing language, which can misconstrue meanings so that the athlete does not fully understand the school’s and their rights and duties.[29] Sports providers are encouraged to hire an attorney with experience drafting sports liability waivers to avoid these dangers.[30]  Further, sports providers can be proactive by educating themselves by attending conferences and reading articles on liability waivers.[31]

Blakely’s tragic death is an important reminder for athletes to understand the contractual waivers they are signing.[32] Similar to sports providers, players can enlist the help of an attorney to read over a waiver.[33] Athletes are also encouraged to read over waivers with their team’s staff and ask any questions before signing.[34] This solution may be especially effective as it could alert team personnel to any red flags within the waiver.[35]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2024, Villanova University Charles Widger School of Law


[1] See Elizabeth Bulat, Court of Appeals Reverses Finding for Stetson, Concludes Releases Signed by Deceased Football Player Was Not ‘Clear and Unambiguous’, Sports Litigation Alert (Feb. 24, 2023), (discussing sudden and tragic death of Nicholas Blakely who showed signs of distress and pain during practice, subsequently collapsed, and passed away from cardiac arrest).

[2] See Anthony Talcott & Treasure Roberts, Stetson University May be Liable in Student Athlete’s Death, Appeals Court Rules, Click Orlando (Jan. 4, 2023, 11:14 PM), (discussing how trainer dismissed Blakely believing he only had a cold based on a normal temperature).

[3] See Bulat, supra note 1 (describing how Blakely later stepped out of practice for dizziness and tight chest, trainer then took his pulse, gave him water, removed his gear, and let him rest, and Blakely then collapsed and died in hospital).

[4] See Talcott & Roberts, supra note 2 (discussing Blakely’s mother’s saddened feelings towards the situation and how she hopes to see change in the way schools treat their athletes); see also Zach Dean, Parents of Stetson Football Player Nick Blakely File Wrongful Death Suit, The Daytona Beach News-Journal (Apr. 18, 2018, 11:13 PM), (discussing parents’ allegations that Stetson failed to take proper measures after Blakely informed personnel of his ailments).  Blakely’s parents are suing for $15,000 in damages for “the loss of support and services of her son, mental pain and suffering, and medical and funeral expenses.”  Id. (citing allegations).

[5] See Bulat, supra note 1 (discussing initial decision by trial court granting Stetson’s motion for summary judgment because releases were “clear and understandable”).

[6] See id. (discussing Court of Appeals reversal in agreement with family’s argument that releases were unenforceable and there were genuine issues of material fact surrounding scope of the releases).

[7] See id. (quoting Court of Appeals) (“[T]he trial court erred in granting summary judgment for the University because the exculpatory clause was not clear and unambiguous.”).

[8] See id. (finding that inexplicit language made it seem Stetson could still sue the school for negligence).

[9] See Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 271 (Fla. 2015) (holding that the absence of explicit language of “negligence” does not necessarily make the release unenforceable but rather the focus must be on intent of the parties).  It is important to note that the Florida district courts are split on this decision.  Id. (stating that the other district courts conflict with the supreme court’s decision of whether to require clear negligence language).

[10] See UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097, 1102 (Fla. Dist. Ct. App. 5th Dist., 2013) (finding that an inexplicit negligence provision would be okay except when combined with safety and regulatory language, makes it difficult for an athlete to understand that he is waiving away his rights to sue for negligence).

[11] See Talcott & Roberts, supra note 2 (stating that the court also found “that that the waiver could have been understood to mean that Blakely was agreeing to allow the university to take culpability in the event that Blakely brought such injuries to other players”).

[12] See Bulat, supra note 1 (holding that the exculpatory provision was enforceable because of unclear negligence provision); see also Sanislo, 157 So. 3d at 271 (noting jurisdiction split, yet holding there is no explicit negligence requirement).

[13] See Negligence, Cornell Law School, (last visited Mar. 15, 2023) (citing definition).

[14] See id. (discussing existence of legal duty, defendant’s breach of that duty, plaintiff’s injury caused from that breach, and damages).

[15] See generally Negligence, ABA (Oct. 31, 2016), (discussing negligence in an example of a car accident).

[16] See Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 265 (Fla. 2015) (discussing how indemnification allows party to shift risk to minimize costs).

[17] See Richard B. Malamud & John E. Karayan, Contractual Waivers for Minors in Sports-Related Activities, 2 Marq. Sports L. J. 151, 156 (1992) (discussing importance of waiving negligence for businesses as a cost minimizer so that they can enter certain markets without fear of negligence litigation).

[18] See id. at 155 (listing business purposes of waivers highlighting cost and litigation).

[19] See id. at 163 (stating that public policy favors waivers because otherwise many popular albeit dangerous activities would be avoided).

[20] See id. at 163–64 (listing common carriers, public utilities, and innkeepers as those with heightened duties and, therefore, cannot waive their negligence).

[21] See id. at 164 (“[S]ports providers typically have been allowed to exculpate themselves as against adults who sign the contract.”).

[22] See Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 265 (Fla. 2015) (finding that policy favors exculpatory clauses as long as they are unambiguous).

[23] See Anthony Petragalia, Julian Bailes & Arthur Day, Theories of Negligence in Sports-Related Injury Cases, Human Kinetics, (last visited Mar. 15, 2023) (listing various common negligence claims in sports injury cases); see also US - Common Negligence Claims in Sports-Related Injury Cases, Conventus Law (Oct. 3, 2022), (discussing inherent risk involved in sports and inability for players to sue for injuries sustained from playing a sport but the potential to sue for negligence).

[24] See Bulat, supra note 1 (discussing trial court’s grant of summary judgment for Stetson based on releases Blakely signed).

[25] See Doyice Cotten, Avoiding Ambiguity in a Waiver, Sport Waiver (Jan. 31, 2012), (discussing that most states have ruled a waiver is enforceable only if it is unambiguous).

[26] See id. (“The number one cause of failure of waivers to protect is ambiguity of meaning.”); see also Exculpatory Agreements and Liability Waivers in All 50 States, MWL, (last updated Jan. 13, 2022) (displaying fifty-state survey of required language by state indicating that most states require explicit negligence language or intent of parties).

[27] See Do Liability Waivers Hold Up in Court?, Penny & Associates Injury Lawyers (Sept. 24, 2020), (stating that gross negligence is a conscious disregard of a person’s safety and cannot be waived in a release form); see Cotten, supra note 25 (encouraging the specification of “ordinary negligence”).

[28] See Bulat, supra note 1 (reversing trial court’s decision by finding that the releases were contradictory and contained ambiguous provisions).

[29] See id. (discussing the releases also “includes the phrase ‘for myself‘ rather than ‘by myself‘ which implies that the release” would protect Blakely from liability for injuries to other players if he properly followed the instructions of the athletic department).

[30] See Lawyer For Liability Waiver, Contracts Counsel (Nov. 4, 2022), (discussing importance of having a liability waiver attorney draft and review a waiver that properly covers certain liability and covers all terms and conditions).

[31] See AB Staff, Evaluating Your Liability Waiver, Athletic Business (May 27, 2008), (recommending businesses learn more about waivers by attending professional conferences, reading, and talking with experts).

[32] See Jerry Bembry, Nick Blakely Came so Close to Playing Division 1 Football — Then Tragedy Struck, Andscape (Dec. 6, 2017), (discussing how much promise Blakely had as a football player and how he never got to play his first game before his sudden death).

[33] See Lawyer For Liability Waiver, supra note 30 (emphasizing importance of attorney review for liability waivers).

[34] See Richard Giller, Return to play for US college sports — legal risks, liability waivers and best practices, Law in Sport (June 25, 2020), (discussing new Covid-19 waivers implemented by schools to protect themselves from liability during pandemic).  The article notes that schools also required parents to sign the waivers.  Id. (“[S]tudent-athletes and their parents sign an acknowledgement of the risks…”).

[35] See id. (discussing importance of schools to maintain regular communication with student-athletes about Covid-19 protocols and to work with school’s legal counsel to stay updated on waivers).