Association Questions Answered by Summit Experts
Officiating-related legal minefields abound as the pandemic continues to impact officials and associations. Alan Goldberger, attorney and recognized legal authority for game officials; Drew Smith, American Specialty Insurance & Risk Services Inc. president; and Don Collins, California Interscholastic Federation, San Francisco Section commissioner, tackled some tough issues for officials and officiating leaders in the Summit@Home sessions Law & Liability and Ask Us Live: Law & Liability.
Following are select questions and answers from the experts on association-related topics about vaccines, contracts and bylaws. Some of the expert responses were combined or edited for clarity. To view the full sessions, go to sportsofficiatingsummit.com/athome.
Q: How can assigners and associations manage the vaccination requirement process? If there are 10 schools in a conference and five are requiring proof of vaccine and five aren’t, how are assigners supposed to know who is, who isn’t and assign people to the appropriate game sites?
A: The assigner is going to have to — in fact, the association is going to have to — maintain communication with a great number of schools, whether it’s a college conference in multiple states or a high school league where different schools might have different requirements. Also, the assigner is going to need to know some basics about what various departments of health are doing in different states — whether there are any states that impose their own mandates either saying you can do this or saying no one can require certain things. You must know what’s going on in your state. The assigner is going to have to be in contact with people. And he or she will have to be in contact with them regularly because the policies, rules and regulations can change very quickly.
Q: One of the things that emerged from the pandemic was an incredible amount of focus on the change of contracts and language that was being inserted in those contracts related to COVID but mostly related to waiving of liability or officials accepting increased liabilities in these new robust contracts. They are almost always one-sided from an entity standpoint. What should officials and associations be concerned about in the contract area?
A: In terms of contracts, officials associations need to get the terms of the contract such that the working conditions are well established for things like: Did you have a vaccine? Are you willing to have a test? What accommodations are there? What special rules are there? Whether COVID-19-related, religious-related or medical-related, we have to be sensitive to all these things.
The days of officials being an afterthought should be over. But of course, they are not. And officials are often the last thing anybody thinks of unless they don’t show up, and then everybody starts scrambling. So, we must be sensitive to not only the waiver situation but any expanded responsibilities we may have and any responsibilities that are different because of communicable diseases or anything else. So, in the contract is where it starts. Everything related to an athletic event is tied up with a contract. We have to make sure the contracts are good.
As far as waivers, this is a case of don’t try it at home. A waiver agreement is a legal document. It’s not something that should be handed to you on a clipboard with a ballpoint pen 35 minutes before tipoff. And if we accept being an afterthought as officials, that’s what’s going to keep on happening. And unfortunately to many of us, they’re going to sign on the dotted line, and then they could find out two, three or four years later that it’s not what they thought it was.
Q: What are the types of things an association today should have buttoned up to make sure it’s doing things the right way?
A: Associations, almost universally, are somewhat lax in being sure the way they operate is consistent with what is written in the bylaws or constitution. And as a corollary to that you need to make sure the bylaws match what the association actually does and the association does what it says to do in the bylaws. And the chief offender among officials associations is the failure to provide for appropriate due process and hearing procedures for officials who are charged with a violation of the bylaws. You have to put the emotions aside as best you can and go back to the bylaws. Things can get heated in a board meeting or other type of meeting. But it’s the easiest way for a plaintiff’s attorney to not just bring a case but to win a case against an association because somebody’s emotions got the better of them and they didn’t follow the guidelines. They didn’t follow the bylaws set to govern the group.
NASO’s 2021 Summit@Home law and liability sessions delved into the hot topic of COVID-19 vaccine requirements. For more on that topic, NASO put together the digital guide “Vaccines & Officiating: Key Questions Answered.” The guide is available for free download at naso.org.