Sport Waiver Risk Fitness Law

A modified version of this article originally appeared in Fitness Managment – March 2009. This is Part I of a 5-part series.

Many fitness center operators are fearful of being sued. And those who aren’t, should be! Even if you use a waiver and have insurance, a lawsuit is bad news. You have a big headache that will drain your attention and your peace-of-mind. In addition, the process of defending a lawsuit usually lasts for several years. Even if you eventually win, you have had the worry and, often, an abundance of bad publicity. Financially, your insurance may not cover the claim, and your rates will probably go up. All in all, it is better to avoid a suit in the first place. You can do many things to reduce the risk of an injury and a subsequent lawsuit in your fitness center.

1 – Take care in the hiring process

It is much easier to avoid hiring a risky employee than it is to get rid of one after you have hired him or her. Four major steps in the right direction include the following: 1) Check references thoroughly. Don’t be satisfied with a written recommendation. Call the referring parties and talk to them. Ask them if there is anything else about the person that they think you should know. You may be surprised what you will learn. 2) Do a criminal background check. This is very important. No matter how good a judge of character you think you are, or how small your budget is, you have a duty to do this check. 3) Verify all degrees and certifications. If you are not familiar with a certifying organization, do some research. 4) Keep written records of the entire job search. This includes the ads, the written recommendations, notes on phone discussions, the criminal background checks, and the verification of their degrees and certifications. In the event you are charged with discriminatory hiring practices, you have a record to show what steps you took.

2 – Train staff on duties and expectations

Since fitness centers have some differences in procedures, all staff members should understand your facility’s philosophy, what is expected of them and how you want certain tasks performed (e.g., how each new member is introduced to equipment, and the activities and services of your facility). Professional development of the staff should be a major goal. Provide in-service training on a regular basis (e.g., hold workshops conducted by your senior staff or by an expert in the area), and send staff for professional development (e.g., regional and national conferences and workshops). This will not only result in improved know-how, but also will help to re-ignite their enthusiasm. What you want to do is to help all of your staff improve. If they get better at their jobs, you will reduce your risk.

3 – Train staff on emergency care

Nothing is more frightening to a young professional than not knowing what to do when a serious accident or incident occurs. When a client collapses, time is of the essence, and it is crucial that staff members know what to do. There is sometimes no time to get help: a heart attack victim collapses and the heart has stopped, a swimmer is pulled from the pool and is not breathing, or a client has fallen, struck his head and is bleeding heavily. This is not the time to wish that your staff had training in CPR, AED use or advanced first aid. The time to avoid a lawsuit for failure to provide reasonable emergency care is now. Establish a policy regarding preparation for emergency care, and be certain that your staff members (or at least a significant portion of them) are trained in proper emergency care.

4 – Be prepared for natural disasters

All fitness managers must develop policies and procedures for natural emergencies (e.g., fire, tornados, earthquakes, flooding). A major aspect of a successful reaction to such an emergency is pre-planning and adequate training of personnel. It is crucial that employees know how to evacuate the building in the event of a fire or earthquake, and know the safest locations to send clients in the event of tornado alerts.

Keeping your members as safe as possible will not happen by chance. Prior planning and training is necessary.

Dr. Doyice J. Cotten is professor emeritus in sport management at Georgia Southern University, and has a consulting business, Sport Risk Consulting. He is the coauthor of Waivers and Releases of Liability (6th ed.), which is a complete and up-to-date source of 1) state waiver laws, 2) rulings regarding waivers for adults and minors, 3) guidelines on how to write waivers (including examples) and 4) a full explanation (and examples) of a Participant Agreement. The book is available from the author (djcotten@gmail.com, phone: 912 764-4848); at www.lulu.com or from IHRSA (in PDF only).

Related articles:

1. 18 Tips for Reducing the Risk of a Lawsuit
2. 18 Tips for Reducing the Risk of a Lawsuit (Part IV – Emergencies)
3. 18 Tips for Reducing the Risk of a Lawsuit (Part III – Client & Staff Issues)
4. 18 Tips for Reducing the Risk of a Lawsuit (Part V – Basics of Risk Management)
5. Do Your Certification Homework