The National Strength and Conditioning Association (NSCA) knowingly published false information in a 2013 journal article criticizing CrossFit Inc., a California federal judge ruled last Wednesday in an ongoing lawsuit between the two groups.
U.S. District Judge Janis L. Sammartino determined the November 2013 article—“Crossfit-based high intensity power training improves maximal aerobic fitness and body composition,” published in the NSCA’s Journal of Strength and Conditioning Research—falsely claimed 16 percent of sampled CrossFit participants were injured in a training study (known as the Devor Study). CrossFit representatives requested summary judgment on this matter, claiming false advertising and defamation, which the judge granted in a favorable 20-page court order.
“[T]he evidence now before the court could reasonably support the inference that the injury data were false and—worse—that the NSCA knew they were false and published them anyway in an attempt to protect its position in the market,” the judge said.
The case's pretrial is slated to begin Nov. 17, but CrossFit and NSCA have jointly requested an ex parte order that would postpone the pretrial for at least 90 days. After Wednesday’s ruling, “[T]he parties need additional time to evaluate the implications of this ruling on their respective positions and the necessary scope of trial preparation,” according to court documents filed by both parties’ legal counsel last Thursday.
The article in question stated that 11 of the 54 participants in the Devor Study dropped out of training with nine of those 11 claiming “overuse or injury.” The article’s authors told the court that Mitch Potterf, owner of the Columbus, Ohio, gym where the training study was performed, reported the injury information. Potterf later denied ever making such claims, the court order said.
“Nobody told me they were injured,” Potterf said in court testimony. “And if you talk to them, they’ll say they weren’t injured, so I don’t know where that comes from.”
CrossFit representatives said that CrossFit poses an “existential threat to the NSCA” and the nonprofit’s “traditional” model of issuing trainer certifications. As a result, the NSCA allegedly “engage[d] in a smear campaign—using its JSCR as a platform to malign CrossFit training as ‘unsafe,’” the order said.
In May, the NSCA filed its own motion requesting the court dismiss CrossFit’s claims, asserting the study’s findings were matters of public importance and noncommercial speech protected by the First Amendment.
In last Wednesday’s court order, Judge Sammartino determined that while the journal article does not explicitly promote NCSA’s services, “the excerpts based on potentially fabricated data about a competitor’s product may nonetheless be commercial speech.”
Furthermore, she clarified that commercial speech is not insulated by the First Amendment as long as it appears alongside matters of public importance. Rather, commercial speech is generally subject to less Constitutional protection.
She wrote: “If a party intentionally publishes false data about a competitor’s product to protect its own market share, that speech is commercial in nature and not subject to the same degree of protection as noncommercial speech. When commercial speech is false or misleading, it ‘is not protected by the First Amendment at all.’”
In a press release issued Friday, representatives from Mintz Levin, CrossFit’s legal counsel, said, “The decision has the potential to become persuasive authority in how Courts will define ‘commercial speech’ in modern-day advertising.”
The order states: “Looking at the communication from the JSCR editorial staff to the Devor Study authors, a reasonable fact finder could conclude that the NSCA pressured the authors to include data disparaging CrossFit’s exercise regimen, and the editor-in-chief’s admonition—‘[r]emember the paper can still be rejected if the reviewers are not impressed with the sophistication of the revisions made’—could be construed as a veiled threat that the JSCR would not be interested in publishing the Devor Study if it did not include information showing ‘the fact many people do get injured doing these types of workouts,’ whether or not that ‘fact’ was true in this qualitative study.”
In a statement provided to Club Industry, NSCA emphasized its intention to proceed toward a jury trial.
“On the NSCA’s defenses, the judge found that the jury – rather than the court – must decide a number of issues related to those defenses,” the statement said. “The case must still proceed to a trial before a jury, where NSCA will vigorously defend itself and remains confident it will prevail.”
In May, the NSCA launched a separate lawsuit against CrossFit in San Diego County State Superior Court on the grounds of defamation, trade libel and unfair business practices. The nonprofit claims CrossFit published defaming content on its company blog, The Russells, including a company-produced video about the NSCA-CrossFit litigation called “The Good Fight.” NSCA Communications Manager Mike Hobson said this suit will remain active, despite last week’s federal ruling.