It is that time of the year, when the new school year begins, school physicals are being feverishly done, and parents are registering their children for athletic leagues, and school teams. Working as a fitness professional with minor athletes gives rise to special legal issues.
Here are 9 such special legal issues that relate to working with minor athletes as trainer:
- Parental informed consent
Minors do not possess legal capacity to consent, as such your will need the consent of a parent or legal guardian to the waivers and disclaimers documentation, and the services agreement (if applicable). Consent forms are especially important in relation to minor athletes because of the risk of injury. This can be relevant for you as a fitness professional because school districts often use a consent form to prove an implied assumption of risk. In some cases, courts have found that consent forms prove the minor and parents did understand the risks inherent in the sport and agree to assume them (Vendrell v. School District No 26c Malheur County).
While lawsuit have rarely been successfully tried based on a lack of parental consent where the treatment of an injury of a minor was non-negligent and first aid was rendered by a qualified athletic/fitness professional. (Gallup, E. M. (1995) Law and the team physician. Champaign, IL: Human Kinetics.)
- Medical clearance form with waivers and disclaimers
While personal trainers and fitness professionals are not covered by Health Insurance Portability and Accountability Act (2003), the information on medical clearance forms is still protected information that you would be required to ensure is not released to any third party. If you are working with minors in an educational setting, as a fitness professional, you will be required to adhere to FERPA. It is likely that waiver and disclaimer forms will be provided by the league or school, however, it is prudent to have these reviewed by your attorney. It is also important to confirm that your insurance will be valid in coaching or training minor athletes. Some insurance companies place age limitations on the validity of a trainer’s professional liability insurance.
Children are by their legal and physical vulnerability more fragile and susceptible to injury. This increases the need to put into place additional protective mechanisms in place. Minors have an increased tendency not to be able to report injury, and tend to under report (including underestimate the severity). It is for this reason that in many jurisdictions, a waiver for the injury of a minor is not enforceable, especially where the adults who are supervising are in positions of authority. The younger the athlete, the less likely such waivers are enforceable.
- Training in working with minor athletes
It is wise to train specifically for working with minor athletes. Learning how to provide sufficient and appropriate supervision is key to working effectively with minors and can help with preventing injury. Fitness professionals must understand the legal responsibilities imposed on them with regard to student-athletes, including the duties of planning, supervision, technique instruction, warnings, safe playing environment, safe equipment, matching and equating athletes, evaluation of injuries, return-to-action protocols, immediate medical response, emergency medical response planning, safe transportation, and other responsibilities intended to protect athletes from injury.
- Clear policies on touching minors for the purpose of instruction.
While a minor lacks capacity to consent legally, the law around the capacity to consent to professionals touching them appropriately is less clear. It is important to obtain written consent from the legal guardian or parent of a minor for appropriate physical touch directly connected to the fitness activity. As with an adult, a minor can withdraw consent and you should cease all touch if a client is at all uncomfortable with the touch. You should also communicate clearly with a minor athlete about why and where you would like to touch them and ensure they consent to the touch (which has already been agreed to in principle by the parent of the minor athlete). Touch of minors by fitness professionals should be avoided unless absolutely essential for instruction. Fitness professionals working with minor athletes should seek out additional education around instruction of minors and keeping them safe.
- Additional Documentation warranted
Because minor athletes form a particularly vulnerable class and open a fitness professional to some additional liability risk it can be prudent to ensure that you document your interaction and training programs for each minor athlete. Relevant administration records may include physical examination forms, injury evaluation and treatment forms, reports of special procedures, emergency information, permission for medical treatment forms, release of medical information, insurance information and communication from other professionals.
Documentation of a fitness professional’s interactions with a minor athlete is recommended for the following reasons: (a) personal use and professional development; especially for
personal protection in the event of litigation; (b) legal, ethical and professional requirements; (c) statistical records; (d) educational, research and insurance purposes; (e) information for further planning, treatment, rehabilitation and training; and (f) information for techniques and standards involved in treatment/rehabilitation.
For more: see Ray, R. (2000). Management strategies in athletic training (2nd ed.). Champaign, Illinois: Human Kinetics; Streator, S., & Buckley, W. E. (2001). Risk management in athletic training. Athletic Therapy Today, 6(2), 55-59.).
- Sexual Harassment in Athletics Programs
Sexual harassment claims involving allegations of inappropriate relationships between athletics personnel (including athletic trainers and fitness professionals) and student-athletes. It is essential that you behave professionally at all times. Moreover, if you are aware of any inappropriate relationships between another adult and a minor you can be found vicariously liable if you have knowledge that the harassment was occurring and were deliberately indifferent to the situation. You also need to be aware of your obligations to follow the requirements of state child abuse reporting laws regarding mandatory reports to law enforcement or child protective services agencies.
- Attractive nuisance and risk of injury
The courts have held that fitness professionals must anticipate that children may wander off into unauthorized areas that contain items, objects or conditions that are attractive yet pose a threat of injury. Keep such areas of the fitness facility patrolled and locked, and ensure that you have adequate staffing to supervise every child.Smith v. AMLI Realty Co. demonstrates how courts have applied the doctrine of attractive nuisance when it comes to risks posed by fitness equipment.
Hazing remains a widespread problem in school athletics programs and one of the most highly litigated claims against districts and athletics personnel. Like the sexual harassment standard, if you are aware of any hazing you can be found vicariously liable if you have knowledge that the harassment was occurring and were deliberately indifferent to the situation. Once again, you also need to be aware of your obligations to follow the requirements of state child abuse reporting laws regarding mandatory reports to law enforcement or child protective services agencies.
- Concussion and Return-To-Play Protocols
All 50 states and the District of Columbia now have a sports concussion law in place. Most of the state laws contain three common tenets: 1) any athlete suspected of having sustained a concussion must immediately be removed from play; 2) the athlete may not be returned to action the same day; and 3) the athlete may be returned to action only after written clearance is provided by a licensed health-care professional (the definition of which varies widely from state-to-state). Some state laws contain additional requirements, including mandates that athletics personnel complete an annual concussion education course, that baseline testing be implemented by schools or that student-athletes and parents be provided with concussion education materials and sign a concussion-information form. Fitness professionals working with minors, especially as an athletic trainer, should be familiar with the details of their state’s concussion statute; the full-text of each state law may be accessed through the National Conference of State Legislatures.
Working with minor athletes can be rewarding and exciting, but like many special populations there are legal issues that can arise that are specific and particular to the group. As with all things, being forewarned is to be forearmed.