Then don’t show up for the race. I mean what the fuck? Do you really think that after all we know about the potential risk of spreading and getting Covid - you would sue the race organizers if you showed up and did end up catching it?

For the record, I am racing the Coz70.3 and the last thing I would think if I do catch Covid while there is that it’s someone else’s fault. It is my decision to show up to an event with participants that come from other parts of the world knowing what we know. I will gladly sign the waiver if I decide to race.

Holy shit - make up your mind and either decide to take the risk or stay home. But instead you want to keep the option to blame someone else for your choices. This is why we won’t be able to have these races anymore. Even if we take all the safety precautions someone will want to sue.

LOL, you don't think every race in the near and far future isn't going to do the same?

So, you were OK "risking your health" without a waiver, but the waiver put you over the edge? That makes no sense unless you've been living under a rock

I'm with BB on this. No one is forcing him to show up, but if the organizers want to inject additional terms into the agreement, then they also need to be willing to give a full refund to anyone who doesn't want to agree to the new contract.

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ECMGN Therapy Silicon Valley:
Depression, Neurocognitive problems, Dementias (Testing and Evaluation), Trauma and PTSD, Traumatic Brain Injury (TBI)

That's a pretty weird way to describe a unilateral contract modification.

Is it though? I mean what do you expect from a multi national corporation facing a pandemic after “contracts” have been issued. You signed up to participate in something with inherent risks to begin with. Those risks were further defined by forces outside of the event organizers control and to protect themselves from litigation they update the terms of the agreements allow you to continue to participate.

That said - I do agree that if you choose to not accept the risks associated with the updated terms you should have to option to cancel and get a refund or deferral to a later date. Perhaps that is what the intent of the OP was and I misread his intentions but it seemed to me that the reason he was no longer racing wasn’t the change in circumstance more than it was the lack of recourse should something happen. If I read it wrong I do apologize

Bloody lawyers...

I think he’s right though. Significant alteration to contract, and suggests they recognise a significant risk but are not taking extra precautions or willing to take the hit to cancel/postpone.

Jesus how self important. Of course they need to protect themselves or some dumbass will sue them if they get Covid.

Smart move, especially considering this:

https://m.youtube.com/watch?v=8vy0n2uUrUY

If a race goes, I'm racing

No worries

Thanks for this video. Sucks, but good to watch. The viral myocarditis aspect is terrifying. I suffered idiopathic (presumed viral) myocarditis event in 2009 and it took me from a competitive AGer near the front end to walking for fitness like old ladies at the mall. Given my pre-existing condition I'm terrified of contracting COVID now, but myself aside, if a substantial portion of those who get infected and recover have suffered viral myocarditis as this guy has, then there are going to be a lot of people whose athletic careers are terminated, as mine was.

Agree.

Imagine if the announcement was instead that the course had been modified to include an interstate highway, and that the highway was not closed to traffic, but you’d be riding in the shoulder.

And Imagine that they acknowledged the inherent risk of this change and they were asking you now to sign another waiver of liability should you be hit by a car on the interstate due to the course change. I think a subset of reasonable folks would race, and in all likelihood, they’d be just fine on race day.

Another subset of reasonable people might deem the risk too high, feel put off by the additional waiver after already paying registration fees and signing at registration, and might ask instead for a refund.

t's a weird thing.... My personal experience with this pandemic is vastly different than what I read and hear.

I go to work everyday where 8500 people work indoors in close quarters. Very little is different from before the pandemic besides masks which hardly anyone wears correctly. There are no pandemic related issues that would be anymore than the normal seasonal sickness in a place this size

I go to the gym 4 days a week since May 1. No masks. Gym is almost full (not quite pre-pandemic numbers), basketball courts, treadmills, pool, weight areas are being used with normal courtesy cleaning. No issues

My parents are in their 70's along with aunts in their 80's. They have also been living life as normal (Church, stores etc...) with no issues.

The past few weekends I attended multiple graduation parties. They were put on as normal with no issues.

I train outside as normal including runs in the park that is being used normally by others who are exercising and enjoying the outdoors. I would say that the numbers are down from pre-pandemic levels. No one is wearing masks and I would say this is the place where I see the least social distancing in a public setting.

Right or wrong... I have paid little attention to the "hysteria" surrounding the pandemic. I have never worn a mask outside of where required by my workplace like any other required PPE. I am respectful of those who are more concerned about this virus. I do not get in their personal space and avoid places that may bring me in close contact with those who may be uncomfortable with someone not wearing a mask. However, most places that I frequent, about 25% are wearing masks.

I don't know one person who has or has had C19 nor anyone who knows anyone who has or has had C19

!remindme 180 days

Your response is legitimate, but so is their request for a waiver. It’s your personal choice not to race. And it’s their choice to try to mitigate legal risk if others choose to race.

I think its a GIVEN that if you participate in a race in this time period without a vaccine, you are accepting the risk of getting Covid than if you stayed home and social distanced. And to ask that people sign a waiver is understandable because you're putting yourself into a situation of higher risk just by participating in the event. If you aren't willing to sign a waiver, then why even show up to the event????

So if they want to change the terms after both parties agreed to the initial set of terms, does this not mean that IMCOZ needs to offer a full refund for those not wanting to accept the new terms? I completely understand the need to protect themselves with the new threat, but just curious from a legal/contractual aspect since I don't recall seeing this type of request from my other IM races in the US.

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Cheers, Ray

Where do you live? You don't have to be specific. Just name a country....that can make a huge difference.

My n=1.......I run my own company & have 33 employees (including myself). I've had 2 employees test positive (1 is back at work. 1 is still under quarantine). We know through contact tracing that the second didn't get it from the first. So my experience is drastically different than yours.

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Pink? Maybe. Maybe not. You decide.

I'm not sure what your gripe is, this is a very standard legal process. You know that thing you don't read when you sign up for the race, yeah the waiver has a lot of shit on it. This is just really an addendum.

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Washed up footy player turned Triathlete.

It's funny all this arguing and bickering about these races being on or off, now waivers, etc.

How fucking hard is it for IM to just do the right thing and send a blast email asking athletes what they want to do? It's supposed to be about us, not their corporate greed. Right?

Why are we pretending that this entire mess isn't IM's doing? Complete lack of transparency and communication.

Do the right thing. You want to race? Good. Sign the waiver and get on with it already.

Not ready yet? Fine. Defer to a time/place when you feel ready.

Scared shitless because of some pre-existing issue? No worries. Here's a refund and see you in the future.

Is it that hard? Really? Tired of this bullshit already.

It appears Calvin lives near Louisville, KY or at least did a year ago -https://forum.slowtwitch.com/...e_P7017175/#p7017175

There are multiple counties in KY that have yet to reach 20 total cases according to NYT stats.

Everyone arguing about a race that isn’t going to happen.

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Favorite Gear: Dimond | Cadex | Desoto Sport | Hoka One One

Which is great until they don’t and then unfortunately their whole building may get it...

We’re multinational primarily US. I think we’ve had at least 50 cases and 1 death out of the 17000 people. We’re not going back until sometime in 2021 at least. My guess would be early August at best.

If you go to your Active mey events tab in your active account you'll see that you need to sign a Covid 19 waiver for any remaining 2020 WTC races. Not just IMCOZ.

It's in there in my account for Tempe 70.3

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Brian Stover USAT LII
Accelerate3 Coaching
Insta

If a COVID outbreak is traced back to an IM event, that's not going to be good for IM, even if all the participants signed waivers.

But, but.... it’s been “confirmed”. /pink

Listen, this is not a contract issue. You paid for a race. They’re going to (ahem) offer you a race. The waiver is not relevant to the purpose of the contract, payment of money for services. The waiver isn’t a material term- and don’t tell me it is, none of you actually sit and read every word.

This is like saying they shortened the bike to 108 miles due to construction and that’s a breach. It isn’t.

It's a contract variation, plain and simple. I may agree to it... but what in return ? £50 off ?
In any normal walk of life you can't change T+C without agreement after a contract is signed.

Whilst I'd not be looking to blame... clearly IM are trying to cover their arses - maybe because of prevailing the sue-yer-ass-off culture in North America knowing some would.

FFS I skydive and know the risks - yet some get injured and then want to blame (and so sue) the jump centre for allowing them to do something stooooopid under a canopy resulting in major injury when really they were being dicks chancing it and got found out the very very hard femur-smashed-into-the-ground-at-high-speed way.

 

Don't sue me if I'm wrong but don't both parties to a contract have to agree to an addendum. If one party does not agree with the addendum that should not void the underlying contact. Especially if the addendum only benefits one party (the preparer of the addendum). The terms of the original contract should remain in place.
If I sent an addendum to Ironman saying, due to the unforeseen pandemic, my financial situation has changed since signing up for Ironman X. I originally agreed to pay $750 but am now amending that fee to $700 per the attached addendum. Please sign and send back.

Then cancel everything and start planning for a return next year.

Come up with a plan and communicate that plan to everyone.

Not that hard.

I live 40 minutes from Louisville and Covid19 is exploding in Kentucky now to include where I'm located. A lot of people around here deny the existence of a pandemic and refuse to practice PPE or social distancing to include the guy in the office next to me who just so happened to contract Covid19 from his wife. Their church has 30 plus cases and growing. A couple from that church was required to wear ankle monitoring devices for refusing to quarantine after testing positive. They were on Inside Edition. Covid19 is everywhere and Calvin is full of shit. There is no Covid19 free utopia.

Mid west United States

I do live near Louisville, KY

Everything I said is true. This is my personal experience. I'm not saying it is yours

This is arguably more of an amendment than an addendum....but, it will depend what the contract says about amendments. And, since a lawyer hired by IM wrote the contract to be most favorable to IM, you can probably guess the answer.

But, certainly if I’m OP, I’m arguing this is a material change to which he could not reasonably have anticipated when he signed up, and thus a refund (if desired) is in order.

How do you know you (or the others you describe) haven’t had or have the virus and have or are currently spreading it with your activities???? The person closest to me that I know who had the virus was completely asymptomatic.

It is a tough break for the doc in the video, but it can happen with any viral infection. It took my grandpa out of competitive Nordic skiing in the 60s - he went racing with the flu like symptoms and came down with the irregular heart beat a week later... and basically same thing as the doc in the video - ended up with a life long disability. This is not new, but yeah - people need to be careful. It is possible that the doc tried to ride as soon as his symptoms subsided, and boom...

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Next races on the schedule: none at the moment

Only if when signing up he relied on a no covid waiver race and relied on the fact that no covid waiver would be required. Otherwise it’s not material.

You don't appear to practice very good behaviors for keeping your area as free from COVID as it is so far, though.

I don't know. I'm saying in my personal daily experience, there is no C19 related issues except for about 25% of the people I see wearing a mask.

I was simply explaining my comment... Based on my personal experience, if a race goes, I'm racing without concern. I will respectfully follow any safety guidelines requested.

You sound like someone studying for the bar exam right now. Contract interpretation doesn’t occur in a vacuum. An argument that might prevail. Maybe. If you aren’t before a judge that is in the other side’s hip pocket. And, After spending thousands in legal costs.

Completely understandable, if there's a race you're going.

Because let's face it, you can't see a virus, they tend to bury the dead and of course it's not on the news locally, nationally or internationally, so then it won't affect you, wherever the race is. If you can't see it it ain't happening.

By the way, there isn't a hurricane likely in Florida......:0)

No I studied for it in 94 when I passed in California and have been practicing law since then. I can smell a bullshit case a mile away.

Btw I’ve done 20 plus half’s and 5 fulls and WTC waivers are very broad and generally include all risks incurred as a result of traveling to and participating in the race (I like to see how waivers are written as I litigate them from time to time). I’d argue that the original waiver was broad enough to cover covid (because it is ), but adding this specificity removes any doubt

I think what people are saying is that what you are describing is a perceived experience. What the data says is that your perceived experience is incorrect. This is why this county is loosing thousands of lives from the virus and loosing trillions of dollars. Everyone is entitled to their own opinions, but not their own facts.

Stephen J

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I believe my local reality has been violated.
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Happiness = Results / (Expectations)^2

On another racing note, Embrunman in France on Aug 15th is asking for a Covid19 blood test that they have there for you to race and show results.

https://www.embrunman.com/...loads/test-covid.pdf

Not sure what good that does as you can catch it between test and racing, but that's what they are doing.

.
They cancelled the race...I am sure IM Cozumel will be cancelled as well...
https://www.en24news.com/...runman-canceled.html

I think this is super interesting. Has anybody looked at the original waiver set for a 2020 race? Specifically a section about "assumption of risk?" Or future changes to the agreement? I haven't. So my thoughts could be silly.

I actually think that both sides to this discussion could present an argument in their favor - because nobody knew about this risk when people were signing up in 2019 for 2020 events.

Event waivers have been signed and basically ignored by most athletes for a long time. Maybe you read them...I just click okay.

Athletes also lived with the no-refunds, no deferral policies for a long time and I think that one reason is that event producers pretty rarely just outright cancelled events. I just wasn't too worried about it at all.

This has dramatically shifted ... yes, statement of the obvious.

Here's a statement that might matter: This risk was not disclosed to me when I paid for the product and if it had been I would have made a different decision.

Nobody knew about the risk of Covid. It wasn't disclosed because nobody knew.

It's true for both sides. IM didn't know about Covid when they launched their 2020 race schedule and made their waivers. Athletes didn't know about it either when they signed up and paid.

One of the things that I wonder if it matters is that we pre-pay for events in the future but it hasn't happened yet.

If Ironman is saying you must agree to the new waiver to compete then I wonder if it becomes reasonable to ask if the purchase itself is invalid without the new waiver.

I'm not a lawyer. My thoughts could be utter nonsense. I'm also not registered for any Ironman events at the moment so I don't have any skin in this discussion. I am just really curious by how this might play out.

Also not a lawyer. And I tend to agree with the "just sign it or don't go" crowd.

But it'd be good form for IM, that if the're going to ask registrants to sign the waiver, they should, at the same time, list the steps they're going to take to protect athletes, staff, and spectators. E.g. virtual pre-race meetings, distanced spectators, staff with face coverings. To assure everyone that they're not only not going to be "grossly negligent" (I think the legal standard for when even a waiver doesn't help them), but are enacting reasonable, diligent steps.

I looked for that list of things at the IM Cozumel site, and couldn't find it. Maybe it exists - just couldn't find it right away.

This is my point. None of us do.

You are risking your health by simply doing an IM. Don't race.....problem solved and welcome to the new normal.

Businesses will not be held libel for a virus they can't control or be sued out of business. It's your call.

I'm confused. You don't want to risk your health but you want to go to this race anyway?
What difference does signing this document make?

BTW, I bet the waiver already has language referring to Acts of God as well as "expressed or implied".
All this document is doing is moving something from implied to expressed.
If you are worried about your health, don't go to this race.

I totally agree with you! It's one thing to accept the risk for yourself, but then to potentially put others at risk is another side to it.

I was also not comfortable racing and traveling to Coz this year, I emailed them yesterday for a deferral and had it completed by last night. It was impressively simple.

Muncie 70.3 also sent the update COVID waivers prior to the race, then cancelled 8 days before.

Don't worry, it will come to you. So far the Mid-West has seen few cases, so it's not surprising (well, maybe a little) that you don't know anyone. I only know people who got infected in March/April. Including some young healthy people who were down for 6-12 weeks. Not hospitalized, just really fatigued and easily out of breath. Don't personally know anyone who needed to be hospitalized or who died, but know quite few people who had family members hospitalized. That's in Europe.

ICU nurse here. I've been taking care of both COVID+ and COVID- patients since March. We've had COVID+ patients that are incredibly sick, by far the sickest and most unstable patients that any of my coworkers have ever seen. We've also had patients admitted to our ICU (half of which is currently the COVID cohort, where all COVID+ patients despite their acuity go) that showed up to the ER for issues completely unrelated to COVID-19, the doctors decided they needed to be admitted, they were tested prior to admission per our hospital protocol, and ended up being COVID+...and they had no clue. For example, a patient with a limb fracture severe enough for surgery that tested COVID+ and was the definition of asymptomatic. The patient had no idea they were positive, had no known contacts, and probably wouldn't have known if they hadn't had a fluke accident that resulted in a severe fracture requiring surgery.

The question then becomes, how long has this patient been infected? Since they were asymptomatic, we have absolutely no idea. When it comes to tracking the people the patient has been in contact with, the health department will have to assume that anyone who has come in contact with the patient in the past two weeks could potentially be infected. And the people that THOSE people have come in contact with could now be infected as well. That patient's family will now have to quarantine for the next two weeks, and probably will also get tested for COVID-19 since they have a known infected contact. If they are positive, their course of infection may look very different from the patients'. And that is the scariest thing about this virus. Yes, we've seen patients with multiple comorbidities that become very ill, as expected, but we've also seen patients under 40 with no previous medical history that were previously completely healthy become very ill and require extensive critical care resources.

Don't underestimate this virus. You don't know how sick you might become if you contract it.

This is not a perceived experience. It is my experience.

That why in my original comment, I led with "It's a weird thing. My personal experience does not match what I read and hear."

Since those comments, I have been to work and/or gym each day and my experience was the same. I did not perceive it.

You can go to WTC site and start the reg for a foreign race, and see what the wavier says. Did that for Talinn. It's a pretty broad waiver to begin with, all risks incurred in traveling to and participating in the race. Paraphrased of course but the waivers are there to read. Good argument that you've already waived the risk of covid, as someone mentioned above this just expressly identifies Covid. Might argue that adding it specifically means it wasn't covered before, but that's a loser argument IMO.

As a 60-64 AG athlete with high-risk friends in their 70’s, I will be copying your response if IM St George tries to send me that addendum. No way until I am vaccinated will I risk exposing my friends and family to this risk.

Thanks for posting and fwiw, I really enjoyed the aquarium swim of IM Cozumel two years ago.

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DFL > DNF > DNS

90% of the cases I’ve defended over the years were bs. With your experience, I’m sure you know that bs cases are filed and settled every day. Elected (and, to a lesser extent appointed) judges and unknowing juries side with the bs all the time.

You missed the point entirely. That’s ok.

I would also reference this for useful pertinent info:

https://www.youtube.com/watch?v=dQw4w9WgXcQ

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When all is said and done. More is usually said than done
Ba Ba Booey

The real issue IMO is whether the pre-covid waiver covered covid. I'd argue it did having read the Talinn waiver yesterday, but I'm a defense lawyer. That's a question of pure law for the judge. I have not had the experience of corrupt judges, more typical in LA County is overworked judges with shrinking budgets. Almost all do the best they can.

If the pre covid waiver covered covid, then this new waiver is not legally relevant. At best it's a clarification of an already covered risk. Flip side is if it were covered before why waive it now? Defense attys never let the opportunity to get more waivers slip by, and this may have been a mistake on their part.

I'd bet it would be disposed on on summary adjudication, no facts are necessary. Assuming the court would find jurisdiction here, which it probably would. Would have to be a class action though, no one in their right mind would sue over $600 with no attys fees clause.

I seem to recall, I sign waivers electronically when signing up, and then signing another on site waiver. No competitor in the history of IM has ever compared the two waivers for substance.

At any rate, much ado about nothing in my view. It doesn't make much sense to me that someone was willing to put themselves at risk by traveling through at least two international airports, then add busses and ferries and cabs, and hotels, and international crowd, and an island under an Orange level warning, and was apparently willing to risk covid, but giving up the right to sue by having to sign a waiver is what now compels them to not want to? That makes absolutely no sense whatsoever

It's odd that the fulls are needing the waiver but the 70.3 events are not.

Looking at my account 70.3 Cozumel and Des Moines do not require additional waivers but IM Florida does.

Wow, this blew up while I was away. Let me respond to the main points that I see. If I missed any, I'm sure you'll all let me know.

1. "Do you not want to risk your health but still race?" No. I am not willing to race under current conditions because there are no safe racing conditions.

2. "What difference does signing the document make?" If I sign the document, then I am committing to assume new risks, risks that did not exist and could not have been contemplated by me when I signed up.

3. "But all races involve some risk, and you sign a waiver for them." Yes, but every competitor reviews and waives a list of those risks. Adding a risk is potentially an alteration of the deal. And COVID-19 is a very big added risk.

4. "But the waiver you already signed contemplated this risk." No, it does not, for multiple reasons, chief among which are (a) this risk did not exist when the waiver was drafted and signed; and (b) if there was a solid argument that it did, that argument is undercut by the attempt to add a new waiver.

5. "It's just one more risk, one more illness." Yes, but it's not the common cold or influenza. It's a highly contagious, as-yet not fully understood, potentially deadly disease.

6. "I bet the waiver already has language referring to Acts of God as well as 'express or implied.'" A pandemic is not an Act of God. It did not exist at the time of the waiver, so it could not have been express (because you cannot specify that which does not exist) or implied (because you cannot imply the existence of that which does not exist, even if it eventually becomes an arguable subset of a prior risk).

7. "It's not a material change to contract terms." While this is ultimately a question of law, the presence of the additional waiver and the demonstrated severity of the disease operate strongly in support of the contention that it is a material change.

8. "You sure are throwing around a lot of legal-sounding words." That's because I'm a lawyer (but I'm not your lawyer).

9. "So what the heck DO you even want?" My money back or a deferral to next year.

10. "Why are you posting this?" Maybe some other people are in my boat, have similar feelings as me, are similarly risk-averse, but are having trouble articulating why they shouldn't be forced to choose between losing their money and risking their health.

11. "You sure are a [insert crude epithet here]." Hey, I've been called worse.

12. "You're ugly too." Yeah, well, there's not a lot I can do about that.

13. "I e-mailed IM Coz and got a deferral." I seriously did not even consider doing that. *facepalm* I'll see how that shakes out.

Yes, we get it. It's your experience. We're merely suggesting you read about some other people's experiences to maybe reconsider some of your life choices. And help keep your area as free from COVID as it seems to be.

E.g. there seems to have been a perception in the past that "it's not in this area" as justification to live life as normal.

But life is *not* normal. And that logic hasn't worked out well in the long-term for some areas. Like Florida.

Public health is not intuitive. When you do it well it feels like you're doing a lot of stupid things for nothing.

Well its not a surprise at this point. They gave it a good try. Embrunman would be an ultimate self distanced race if you can get any ironman in the world to be distanced !!! So really it was "what is the risk" before the start line. Once it starts in waves of 20 athletes at a time, you're almost never near another person for the next 10-18 hrs. Probably its more about 900 athletes and supporters coming to the the Embrun area all at once doing the same thing.

As for Cozumel vs Embrun, the situation in France and Mexico are entirely two different worlds. Mexico's daily deaths 7 day average has been around 600 per day for the last few months. France barely at single digits to teens. That's just the death side the recorded infections for each are different world. Mexico its like wildfire, France is on a very slow gradual "small flame coming back from embers" scenario from what I see.

Your 1-2 are contradictory to me. If you weren't going to race anyway, the additional waiver is completely irrelevant to you. You don't have to sign if you're not going anyway.

Maybe you're just using it as leverage to get the refund/deferral you were already seeking, but that's pretty thin.

"Your 1-2 are contradictory to me. If you weren't going to race anyway, the additional waiver is completely irrelevant to you. You don't have to sign if you're not going anyway."


I was going to race. I was going to race under the conditions, and with the risks, that I signed up for. If they change the deal after we made the deal, and I don't agree to their new deal, they shouldn't get to reap the benefit of the prior bargain.






"Maybe you're just using it as leverage to get the refund/deferral you were already seeking, but that's pretty thin."


It's not thin at all, actually. As you can see by my points above, it's a very solid and fair argument. One party to the deal shouldn't get to materially change the deal after it's made, and then hold the other party to it.

Did you go back and read the prior waiver [we'll probably be able to stipulate that you didn't read the first time, so it's kinda hard to buy the "that release was the benefit of my bargain" argument']? Positive it would not cover Covid on its own? I went and read the Talinn race waiver on active, done Coz a couple times and while I did not redline them, seemed fairly standard as I recall, and the risk of getting a virus is likely covered under the language, even if "covid" isn't stated

As a lawyer you will know that not every risk has to be spelled out in an assumption of the risk/liability waiver form. So yeah, it does seem as if you are using this as leverage to get a refund. Not faulting you for it, it's creative at least, but I think objectively you'd have to admit that the existing waiver would bar you from suing if you contracted covid due to their negligence.

You'll also be aware that what you or WTC thought about the prior waiver and what it covered is not relevant here, it's an objective test based on the language of the agreement itself. It covers what it covers without regard to your or their understanding of it

You are not going to find a single race in the next five years or more that is not going to address this in one form or another

Just my take on it

But the COVID risks didn't change.

So you come off as not that concerned about actually getting the disease, but about preserving your right to sue IM if you happen to get infected.

yup

I emailed Ironman weeks ago about deferring to IM CDA next year. So far, I have gotten no response and my name is currently listed as a participant in IM St George. Please post if you get a response from Ironman, as I intend to respnd in a similar manner to you as a response to the IMSt George COVID-19 waiver.

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DFL > DNF > DNS

Let me try this again.

"The COVID risks didn't change."

The COVID risks -did not exist- when I signed up for the race. I said that twice. Where are we having a communication breakdown on this?



"So you come off as not that concerned about getting the disease, but about preserving your right to sue IM if you happen to get infected."

How am I going to get infected when I'm not racing? As I have said in my other two posts, including the one that is the genesis of this thread, I am not racing. Where are we having a communication breakdown on this?


The whole point of this thread is to point out that IMCoz is the first race where the organizers have elected not to cancel, but instead to go forward while attempting to require the competitors to assume a new risk, a risk that did not exist when competitors signed up.

The new risk they want me to bear was not part of the deal I made when I signed up. And I don't want any part of the modified deal, as conditions currently exist, because, while I was willing to risk the discomforts associated with influenza, the common cold, or even "Montezuma's Revenge," I am not willing to risk the hazards of COVID-19, a disease that did not exist when I signed up, and a disease that is a non-starter for me and thus I will not race.

So, because the deal is unilaterally altered to include terms to which I do not agree, I want either (a) out of the deal entirely, or (b) for both parties to defer performance of the deal until such time as the risk is mitigated.

I am not sure where you are getting the idea that I want to both race the race and preserve my right to sue, which I have never said, and in fact have said precisely the opposite from the very beginning. The most likely conclusion is that you have not been reading what I've written. The next most likely conclusion is that you have not understood what I have written. If that is because I have been unclear, I apologize and hope that the above, third reiteration clears things up.

We cannot so stipulate, because I read the waiver.


Not every risk has to be spelled out, but a deadly risk that was not extant at the time of contract formation is likely material.


This line of reasoning is, as stated above, significantly undercut by the fact that the COVID risk did not exist at the time of the waiver, and that IM must have considered it relevant and material given their attempt to add the second waiver. If the first waiver covered it, then why bother with the second?



Perhaps. I'm willing to defer racing until there is a vaccine or similar treatment.

Well, you haven't answered the most important question as to whether the original waiver would cover this.

Yes, you have an argument that the addition means it wasn't included before. There is an equal and opposite argument. But it's entirely moot if the original waiver covered it. If so, then the new waiver was surplusage and unnecessary and without any legal force and effect. Wouldn't be the first time some lawyer tried to boot and suspender something for no reason

And again, we sign waiver online AND at the race site for every race, and no racer has ever compared the two to see if the risks were now different and they can "back out of the deal."

Like I said, it's creative. My ,02 from reading the existing waivers you lose if you ever were to sue on it and it went to judgment

ETA Coz ain't gonna go anyway, their July "confirmation" notwithstanding

You may never race again.

https://www.marketwatch.com/...r-decades-2020-07-30

No one can "answer" that question except a judge. I've given my reasoning as to why the original waiver wouldn't cover it, which you are free to disagree with.



Smart money says it doesn't go forward, which makes this move even more curious.


I am pessimistic that we will get a vaccine as effective as the measles vaccine. I certainly hope that we do better than the flu vaccine though, although everything I've read to date seems to indicate that "slightly better than the flu vaccine" is where we are headed. I'm not a scientist, though, so I'll hold out hope that the people smarter than me have something up their sleeves.

LOL, that's not true. A judge can interpret it, but you're a lawyer, you can read, you can too. You can read the prior waiver and make that objective call. That you have not answered the threshold question basically answers it for me

If Dr Osterholm is correct, then we may be heading into a permanent future where you get the COVID Vax on some routine schedule, but there will be no guarantee that you still might not catch it. Freaking gloomy!

What in the world are you on about? I've already repeatedly stated what I think the answer to the question is.

The prior waiver does not contemplate the risk of COVID because the risk of COVID did not exist and thus could not have been contemplated at the time of execution.

Moreover, it is evident that the organizers recognized that the initial waiver did not contemplate the risk of COVID because they attempted a specific novation to include the risk. To be effective, the release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. In determining a waiver’s scope, “California courts require a high degree of clarity and specificity in a release in order to find that it relieves a party from liability for its own negligence.” Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.

Finally, waivers are strictly construed against the drafting party, which operates in favor of the argument that a waiver that did not include COVID, and then attempted to require a novation that did include COVID, actually contemplated COVID in the first place, the novation notwithstanding, is far from compelling. Cal. Civ. Code § 1654; Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.

But all of this is still argument, not answer. After all, "[w]hether a contract provision is clear and unambiguous is a question of law, not of fact.” Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598.


It would be a poor lawyer indeed who stated confidently that this is an "objective" call. It would be borderline malpractice to pretend that there is an answer, and no lawyer even remotely worth the title would pretend that it's an easy call. Any lawyer that pretended that the ultimate question of enforceability was actually a threshold question should probably contact his law school and see about getting his money back.

LOL, OK sparky. I see you're one of those young buck sow his oats personal insult type of lawyer. And yet, still, you haven't answered the question.

Good luck, with the race and the practice

The only person throwing around insults here is you. You've probably had enough internet for today.

Good one! I'm sure you're a fine representative for your clients.

Well, I don't pretend to have ready answers to unsettled matters, I cite my assertions, and I refrain from both insults and LOLspeak.

So while I wouldn't say I've got it all figured out (which would be the height of hubris), I certainly do my level best, and the results over the past decade-plus seem to indicate that it's working.

Is IM Cozumel an Ironman owned or Ironman licensed event? Judging by the deferral options and contact email address, I would suggest that it is a licensed event owned and run by a Mexican event organizer (Asdeporte) which may throw a spanner in the works for any legal action from the USA.I can easily see WTC passing the buck on this one.

https://asdeporte.com/

Licensed

That's an interesting question and one to which I don't have an answer. I would hope that one of the requirements that IM (the umbrella organization) places on its international partners is a certain level of customer service and related conduct.

Ultimately, there are few practical remedies; it's impractical to sue for the return of my thousand bucks, whether in MX or USA, and if they deny people deferrals and hold the race anyway, that's the only real recourse that someone would have.

One is ultimately forced to hope that either Adesporte and/or IM makes the actuarial decision to protect the brand rather than keep a few thousand. But there's really no way to tell what's going to happen.

I'll keep you posted.

I literally have not seen anyone but my wife, son and parents inside 2 m since March 13th. I had a few distanced workouts starting a month ago with 2 training friends and I did two distanced walks with employees at my company. Other than that, its been a 100% virtual world until three weeks ago our pools opened set up double wide 4 people in a double lane where I have come inside 2m of an unknown human. My wife has done groceries.

I miss interactions with real humans, but we decided to do our piece to limit all contact and interactions to reduce how this thing spread. I may not be for all the measures personally, but supported them all. I'm for a return to racing and normal human stuff when the time is right wherever it is. Our Canadian triathlon nationals in Montreal were moved to Oct 2-4. I just asked organizers to move my entry to next year, because I don't believe that even if they have the race, i won't contribute to unneccessary human to human interaction.

So the thought that we may never have large races again did cross my mind when I deferred and I am OK with that. I am training 18-20 hrs per week because I can, not because of any racing. With how much the wrong things were reopened (I am for opening up some low risk things, but not high risk stuff....I kept my company shut because it feels like indoor work for long periods is still high risk).

I am hoping to do the Alpe d'Huez tri next year, but only if I don't put others in jeopardy with air travel. The actual races themself are low risk. Thus local racing or local anything outdoors we have a chance for. The stuff involving lots of travel, hotel and restaurants is going to be problematic for some time, vaccine or not (per the article you quoted).

Sooooo.....nothing wrong if we just have local racing for 2-3 years. In the early days of this sport, that's all there was other than a few people getting on a plane to go to Hawaii or Nice, then ITU Worlds...other than that, it was all close to home.

Dev - I have not been nearly as cautious as you have. I've been swimming about 4 x a week (outdoors) since early May. I've eaten out weekly since then. In July, I took two separate road trips for vacation which meant 14 hotel/B&B nights and eating out daily. I visited many tourist attractions. So yeah, I've contributed to unnecessary human interaction. But I've also been mindful of Japan's advice to avoid the three Cs (closed spaces, crowded places, and close-contact settings) to the extent possible. I will also be flying later this month which is probably the riskiest thing but per MIT the odds of catching the virus are something like 1 in ~4400 for a completely full flight and 1 in ~7700 if the middle seats are kept vacant (I'll be on the later). I'm hopeful there is a vax next year with at least moderate effectiveness because I do want to travel internationally again.

I am interested in the "full flight" odds. Here is why. Actually I would bet on board the aircraft itself, the risk is low, because the air turnover is relatively high compared to most other indoor settings given the Air craft air conditioning systems. I believe from my aviation days, its around 2x or 3x the turnover compared to a good office building, but my aviation days ended 24 years ago...so things have gotten better from what I understand on the newer aircraft like Dreamliner and A380 (soon to be decommissioned LOL).

My larger concern, is in the airport itself and in the actual ramp to get into the airplane. I THINK this would add to the odds, or do the odds include those locations. My parents (77 and 82, with my dad in the vulnerable group with diabeters) flew from Asia through Qatar back to Canada on a repatriation flight on April 28th and it was all pretty smooth. From what we know, no one from that flight or the feeder flights got sick from this.

My personal caution was simply around, "if we all sit out for 4-8 weeks and literally don't interact with anyone" this thing would literally be dead and we can move on with life. If that's not going to be the case and life moves on with the virus forever, I have to take on another personal tactic.

Here in Canada, we're getting close with single digit or low teen deaths daily, but now case numbers again creeping back up, so we're not out of the woods like New Zealand where we get to play like normal in our own national bubble.

So its feeling like no large racing for quite a while and I am counting on local racing only next year and treating any races with travel as bonus. I have to travel to India, Scotland, Dubai and Florida to close deals for work at some point (not sure how I will do that remotely but lets see), so at some point, I think I gotta get on a plane for life in general, not for triathlon will come to a head. So hopefully I am not creating trouble when I get on a plane for work for others around me, which means getting on a plane for triathlon to go to Alpe d'Huez or Kona 70.3 or Florida 70.3 turns into a non issue too.

But I will take local racing, local business, local life in the mean time. At this point, I would actually take an 8 week Wuhan style lockdown worldwide to kill this thing off, but we'd all have to do it or its fairly useless.

I lost my illusion 4 weeks ago... when our new cases went from 20/d to 140/d. It take only one... and that lockdown was for nothing.


My hope is that mandatory mask will help keep numbers reasonable.
Not sure it's it's me, but with 3 days the mandatory mark, the tone in the city has change... more people are out and they seem to be less fearful of everything.


In the meanwhile, i'm keeping an eye on this: https://www.nytimes.com/...vaccine-tracker.html
I'm planning my 2021 season with the expectation of getting a shut at some point between March and May.

1) If the whole world sits at home for 4-8 weeks, way more people would die from starvation than the virus.
2) you are asking 8B+ people to do something with 100% fidelity for 4-8 weeks. That would be a first in the history of the universe.
3) there is no guarantee that would work. Pretty sure humans aren’t the only ones carrying the virus around.

That's not weird.

What's weird is that the tone of your post suggests you think everything is fine and will remain so just because you haven't personally experienced it yet. You speak as though what matters is whether you make people feel uncomfortable rather than whether you are putting them at unnecessary risk. You do realise that this pandemic is in fact a real thing that has killed hundreds of thousands already, a disproportionate number of them in your own country? It's not just hysteria.
The fact that your community sounds like it's taking a rather cavalier attitude should worry you. What's weird is that on the contrary it seems this attitude reassures you that everyone outside your community is making a big deal over nothing. I hope you are lucky enough that your illusion lasts. There's a reasonable chance that it won't, and that your attitude and that of your acquaintances will kill a fair number of people. Good luck.

I guess I understand the race asking those who choose to race to sign a wavier, but you should certainly be provided an option to defer at the very least.

I presume that was meant to be "a shot"?
If so, I reckon it's possible but probably a little optimistic.
First vaccines need to be proved effective. Then proved safe. Then they need to be manufactured and distributed in sufficient quantities to first immunize those at most risk and then the rest of us.
That's a lot to happen in 8-10 months. I personally doubt it will happen that fast unless so much pressure is brought to bear by Trump, Putin, and others that corners may well have been cut. In fact that's a very good reason to want Trump out of office.
We need politicians to facilitate vaccine production and distribution but it may be best they're not actually driving it.
Trump for example, has proven himself unable to admit ignorance or error and demonstrated he's willing to bully and put others art at risk to save face. I fear he'll try and push through an inadequately tested vaccine in the US, and may already be trying to do so. The last thing we need is a dodgy vaccine providing a false sense of security or providing anti-vaxers with even a shred of credibility. It's one thing to challenge the normal timelines for producing vaccines, it's quite another to take shortcuts without properly assessing any associated risks.

The only people that may need a shot are the elderly and people with pre-existing conditions. Everyone else is either asymptomatic or gets over it pretty easy. Hardly anyone got a vaccination for H1N1 and you don’t even hear about it anymore. I think this thing is WAY more political than anything.

As for the OP, just sign the damn thing and be happy you can go racing. Quit being a Karen. Race or don’t race. No need for all the drama. That’s half the problem with the world. We don’t need anymore.

I should have clarify that: My illusions were limited to western canada (~10m people)... I was really hopping that with our low case count we could be at a zero by now. While all of Canada is doing a great job right now, but the restriction are here to stay.

I never had any hope for the rest planet.

"Everyone else is either asymptomatic or gets over it pretty easy."

That statement is so wrong. It amazes me that there are people out there thinking like that. Unfortunately, as long as there is the pandemic will grind forward.

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Andrew Inkpen

I have read about other's experiences. That's where the disconnect is. I frequent 2 states daily (both rural and metropolatin settings) that have similar reported numbers and guidelines.

On my daily travels, I am seeing nothing resembling what I am reading.

I follow all required guidelines

Of course the pandemic is real. I follow all required guidelines.

Uh, I work in healthcare. I’ve been treating and dealing with this since day 1. I know a little about what I’m talking about.

This is direct from the CDC......

“ In general, your risk of getting severely ill from COVID-19 increases as you get older. In fact, 8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.”

So go do the math. 158,000 Covid-19 deaths in the US. That means 31,500 of them were under age 65. And we also know that a lot of Covid deaths are being reported Covid even though they had pre-existing conditions. Of those 31,500 there were certainly many with pre-existing conditions.

So even though under 65 probably won’t die people should take a chance of either being asymptomatic or if you have symptoms being sick from anywhere between 3 days and 3 months with lasting health problems? That seems insanely stupid to tell that portion of the population to not get a vaccine.

And you work in healthcare so you should know that death isn’t the only bad outcome of this thing. Pretty sure there are a handful of under 65 health people on this site who have had it and are having issues months after.

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Twitter - Instagram

I'm curious... while i may not die from covid... and a healthcare worker, what do you think will be the impact of covid on my marathon time??

These kind of waivers will become the norm.....we went to lake placid to do some hiking last week ( kept our im hotel reservation), and the hotel had us sign a waiver a week before we arrived.

Well, I understand you’re approaching it from a legal stand point but in that case they could throw a force majeure card on you. Good luck debating with their lawyers after that.

I’m a loaner. Train alone. Live alone and avoid my family just in case. I’ll sign the waiver. I’ll race and I’ll enjoy it. I’ll come home wait 14 days quarantined and be fine and go back to life. Let’s go

Have you gotten a response from Ironman yet about transferring? I sent my third request today after getting no response on the first email and an automated ticket number acknowledging my request three days ago, but no action and I am 45 days out as of today.

My hope is that you have better luck than I have so far in moving to a 2021 race.

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DFL > DNF > DNS

Did you email the address listed on the registration page @ asdeporte? I had my deferral processed in <12 hours by emailing that address.

UPDATE:

I e-mailed the organizers - specifically Adesporte.

They got back to me in about 12 hours to tell me: "Race 2020 will happen with all the healthcare safety protocols... Are You sure You want to deferr to 2021?, Once You are on 2021, We won´t be able to get You back to 2020."

I replied to assure them that I was in fact sure that I wanted to defer to 2021.

I have not yet received a reply.

I'll post back as soon as I do.

Update to the update:

Thanks to a very gracious interaction with Adesporte, I am deferred to 2021, so God willing and the creek don't rise, I will see you all there.

You're confident that a 2021 IMC event will happen, eh?

This is contingent on so many variables, not the least important are:

1) COVID-19 spread is arrested
2) The event still exists
3) WTC still exists

Also (TL;DR all the previous pages of this) can an organization registered in FL/USA like race host or registration company demand a change to the waiver/indemnification after it's been signed, etc.? If you said "no", would they then be req to refund your $?

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no sponsors | no races | nothing to see here

Nope. But since the money is already spent, I figured why not kick the can down the road? If it's not going off in 2021, I'll defer until 2022, or I'll lose the money, or IM will give me a discount code for a 2011 IM Lake Placid event backpack or some other garbage from the back of the warehouse.



That is a question that no one really has the answer to.

As a general proposition, a change in the terms of the transaction would have to be "material" to justify the recission of the agreement.

What is "material" is a creature of state law and prior precedent. It is an open question as to whether the current circumstances and the added risk that the organizers want competitors to waive are "material" changes. I think they are. There is a colorable argument that they are not.

What "state" law will apply is a more settled question. Although there are still going to be arguments as to which set of laws will apply, that determination is likely more easily made.

Who the parties are is also an interesting question, because we have a local organizer, but that organizer is arguably beholden to a set of standards imposed by the branding entity.

The short answer is that someone is going to spend a lot of billable hours answering those questions.