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Threats to the health club industry Photo by phototech / Getty Images.
The recent maturation of the health club industry has had various effects–direct litigation against fitness service providers and personnel; product liability litigation against certain equipment designers, manufacturers and end-use fitness service providers; and proposed or enacted legislation to regulate either the industry or some of its providers, such as personal trainers.

How Liability and Regulation Pose Threats to Unprepared Fitness Professionals

Through careful self-governance, fitness professionals can prepare for the liability and regulatory issues of the future. In this article, attorney David L. Herbert outlines five clear legal threats to the health club industry and how each can be efficiently addressed.

The last 40 years have seen dramatic changes in the fitness industry. Generally, those changes have brought about various improvements to the industry, including those related to consumer safety. Some of the changes that have been made and even some of those still developing have been caused by the legal system and its impact upon the industry. The impact has taken several forms–direct litigation against fitness service providers and personnel; product liability litigation against certain equipment designers, manufacturers and end-use fitness service providers; and proposed or enacted legislation to regulate either the industry or some of its providers, such as personal trainers.

Some of the foregoing litigation has resulted in substantial monetary verdicts in favor of injured consumers, including at least one verdict reported in The Exercise Standards and Malpractice Reporter in excess of $320 million. The industry took note of this litigation and others and responded with proposals to establish industry standards and guidelines and to implement a variety of certification programs to improve the qualifications of fitness professionals in their provision of fitness programs and services to consumers.

Despite these efforts, no industry wide uniform standards and guidelines for the delivery of fitness services have been adopted to date. In fact, a previous effort to do so failed due to organizational and due process considerations related to the creation of the group established to adopt the standards and guidelines and the process used in doing so. As a consequence, the standards group leading the effort had to withdraw the standards statement which had been developed through what was determined to be a defective process.

At the same time, the certification process for fitness professionals expanded in some respects and now appears to offer a myriad of basic and specialty certifications that in many respects has developed into an alphabet soup of acronyms and offerings. To say that the certification offerings put forth by a number of certifying organizations are voluminous and sometimes confusing would be an understatement. One must question if all of these certifications are necessary or even desirable. Some of the certifications may move dangerously close to sanctioning the provision of services that have been traditionally left to delivery by regulated or licensed health care service providers.

The perceived failure of the fitness industry to govern itself has also resulted in a number of state laws or proposals to regulate or require licensing for certain industry programs or personnel. These proposals have included requirements for the creation of emergency response programs such as the installation of mandatory automated external defibrillators (AEDs) in certain health and fitness facilities in some states. Some of these proposals have become law and more may be expected. Proposals have also been put forth to license or otherwise regulate fitness service providers, including personal trainers. Although no states presently require licensing for fitness professionals, many in the industry believe it is only a matter of time until licensing is required, especially if additional and/or severe injuries or deaths occur to fitness service consumers due to the alleged negligent conduct of some fitness professionals.

Given the foregoing background and considering a myriad of other factors, there are clear threats to the fitness industry arising from the legal arena. These might be identified and evaluated as follows:

  • The fitness industry still needs uniform and broadly supported industry standards and guidelines which are developed in accordance with due process and established or overseen by an organization such as the American National Standards Institute (ANSI). A failure of the industry to do so may result in diverse state regulation for at least some industry practices. The standards process previously suggested by the American College of Sports Medicine (ACSM) some years ago and designed to be carried out by the National Sanitation Foundation (NSF International) should be put aside and properly addressed by the industry. A failure to do so will not only be a threat to the industry but may substantially set it back if governmental agencies step in to do so.
  • The fitness industry needs basic but accredited certification programs for fitness professionals, including personal trainers. Education, practical training and written and practical testing need to be implemented by the industry as part of the certification process. A failure to do so will probably result in more governmental proposals to regulate the process. Such a threat may take the process out of the hands of the industry and into governmental bureaucracies. While some segments of the industry may favor such a development, the process would be more costly than it is now and the industry would lose control over the issue.   
  • The industry needs to examine the plethora of certifications and specialty certifications now offered by segments of the industry in efforts to define what is really needed and beneficial to consumers. Some of the so-called specialty certifications may well run afoul of various state laws and regulations which define the fact that only certain professionals may provide specified services such as those in the nutritional and dietetics professions. Industry attempts to move into such professional realms may well result in the unauthorized practice of health care charges and related litigation.
  • The industry has responded to personal injury and wrongful death litigation by adopting the use of prospectively executed waivers and releases for participants to sign before activity is undertaken. This use of such documents for the determination of negligence lawsuits against fitness professionals which arise out of various sporting, fitness and recreational activities has been largely successful. However, some states will not allow the use of these mostly otherwise effective documents due to public policy considerations. In the event that public and judicial perspectives on this issue turn against the industry because of sloppy practices or horrific factual scenarios, the enforceability of these protective legal documents may become more vigorously challenged. Judicial reluctance to enforce these documents under some circumstances or state legislative enactments prohibiting their use could be a devastating threat to the industry.
  • The baby boomer group in the United States continues to age while the demand for high intensity workouts and high intensity interval training (HIIT) has increased. Such fitness programs are not right for everyone and fitness professionals need to be careful in tailoring these programs to those who are fit enough to participate in such activities. Care must be taken to do so. Failures in this regard could create a real and adverse impact upon the industry in all or many of the previously mentioned areas.

These five areas of potential threat to the industry can be addressed and minimized. Proactive efforts to do so should be carefully considered, mapped out, planned and implemented. Past mistakes can and should be corrected. If properly done, threats to the fitness industry can and should be minimized even if not totally eliminated.                                  

BIO
David L. Herbert is an attorney at law at David L. Herbet  & Associates, LLC, Attorneys & Counselors at Law, in Canton, Ohio. You can learn more about his work at http://www.herblaw.com.
 
Author's Note: This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented.  It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work.  If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought.  Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

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