“Can someone please share their enrollment agreement? We’re updating our contracts and I need a good template.”
We've all seen this common request in various online forums. I totally get it. Lawyers are expensive and it’s tempting to just use a contract from another camp. They’re running retreats. I'm running retreats. They’re hiring staff. I'm hiring staff. What could go wrong??
For starters, it would be good to know the answer to a few questions: Who drafted the original agreement -- was it a competent attorney? Was the agreement drafted based on the law of your state or another state? And how many well-meaning camp staff modified the agreement before it landed in your inbox?
Think of the kids’ game Telephone: You say something to a friend, they repeat it to their friend, and so on. The inevitable outcome is that the final statement bears little resemblance to the original message. Something similar happens with reused contracts, except you likely don’t know where you are in the Telephone line.
Here’s an example that I've seen in the employment context: An offer letter is initially drafted to create at-will employment, which means the employer or employee can terminate employment at any time and for any lawful reason (or no reason at all).
At some point, usually long after the initial offer letter was drafted, a well-meaning director adds two sentences to clarify the dates of employment: “You commit to working from June 15th to August 15th. You will not leave early without prior approval from management.”
That seemingly logical addition changes the nature of the relationship from at-will to term. In a term agreement, an employee can only be separated for cause. So if you send home an underperforming counselor early, then you open the door to a potential breach of contract claim against your camp.
In this way, subtle changes often have unanticipated legal outcomes. Even assuming the original agreement was drafted by an attorney, it’s hard to know how many of those subtle changes have made their way into the version you receive.
Another thing to keep in mind is that certain contractual provisions are allowed in some states but not in others. For example, courts in some states recognize liability waivers for negligence while others find that those types of waivers violate public policy.
If a camp in Virginia, where waivers are typically not allowed, uses an enrollment agreement from a camp in Massachusetts, where waivers are more commonly accepted, the Virginia camp may be in for a surprise if that agreement is ever challenged. So it’s important to know what state law your template is based on.
The other challenge is that exculpatory clauses, indemnifications, waivers, and various other contractual provisions can impose complex obligations that can be difficult to understand and may lead to legal outcomes you didn’t anticipate. For example, what are the chances that your retreat agreement has your camp indemnifying the rental group, rather than the rental group indemnifying your camp?
If that type of provision were written in plain English (it likely won’t be), here’s what it would say: “The camp will cover the retreat group’s defense costs and losses if a retreat guest sues.” That’s obviously the exact opposite of what you’d want in a retreat agreement, but when this obligation appears in complex legal language, it’s easy to miss.
And how might this sneak into your rental agreement? Very simply: At some point, a rental group asked a camp for an indemnification. The camp considered the request and agreed to indemnify that particular group. When the next rental group needed a contract, a well-meaning camp employee simply modified the camp’s most recent rental agreement, which happened to have that indemnification clause. In the process, that version of the agreement inadvertently became the camp’s new template.
So what's the key takeaway for camps? If you can't bring in an attorney for every contract and must use a template, then keep three things in mind: (1) make sure the template comes for a reputable source; (2) make sure you know which state law the template was drafted under; and (3) make sure you’ve confirmed that the “Telephone effect” isn’t at play.
Also note that some of the camp insurance companies provide templates to their clients for basic enrollment agreements and retreat agreements. While I haven’t reviewed any of them in detail, those should be a far better starting point than a template of unknown origins that you receive in response to a social media request.