The Personal Trainer’S Legal Bible: Legalities for Fitness Professionals

By Gary W. Pitts

PERSONAL TRAINERS are not just fitness professionals; they could be the saviours of the global health-care systemlife changers. As pioneers in this budding field in the health and wellness industry, trainers face misinformation and myths about the fitness industry. Whats more, due to negative portrayal in the media, the common perception of personal trainers is less than stellar.

This situation, coupled with the relative lack of regulation, means that there are many legal issues that you must be aware of in order to stay safe in your day-today practice. As is the case for any practitioner of a health-related profession, you must be aware of the legal ramifications of your decisions and advice. But the legal education provided to personal trainers is virtually nonexistent.

In this guidebook, author Gary Pitts, a master strength coach and Canadas premier fitness lawyer, provides the knowledge you need for your practice. Following the principles of MISS (make it simple, stupid), Gary has compiled information on the entire spectrum of fitness-specific legal issues, most of which are largely unknown or misunderstood by even the most seasoned veterans in the personal training industry. If youre serious about your personal training career, explores these important issues and start building your protective legal strategies now.

• Language: English
• Publisher: iUniverse
• Release date: Jan 7, 2014
• ISBN: 9781491717585

Gary W. Pitts

GARY W. PITTS, BA, BCL, Sports & Fitness lawyer, Quebec licensed since 1974; with more than 35 years litigation experience; 10 years experience as a strength coach, holder of World-class certifications; FMS (Functional Movement Systems II;) CGFI (Certified Golf Fitness Instructor) from TPI (Titleist Performance Institute), SwingLink, (CGFP) Certified Golf Professional, YMCA, Can-Fit-Pro, & more. He is also a nutritionist and World-class presenter.

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Copyright © 2014 Gary W. Pitts.

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ISBN: 978-1-4917-1757-8 (sc)

ISBN: 978-1-4917-1759-2 (hc)

ISBN: 978-1-4917-1758-5 (e)

Library of Congress Control Number: 2013922728

iUniverse rev. date: 12/28/2013

Table of Contents

Author’s Note

Disclaimer

Dedication

Acknowledgements

Preface

Introduction

Chapter One

THE PERSONAL TRAINING PROFESSION

A.   Origin Of The Profession

B.   Personal trainers as primary healthcare providers

C.   State Of The Fitness Industry

D.   Licensure

E.   Certification(S)

F.   Accreditation

G.   Self-Regulation

H.   Fitness Industry Standards And Guidelines (USA & Canada)

I.   Canadian Case Law Regarding Industry Standards

Chapter Two

THE SPORT OF FITNESS

A.   Introduction

B.   Etymology And Definitions Of Sport

C.   Case Law And Legislation Proving Fitness Is A Sport

D.   The New Standard Of Care For American Personal Trainers

Chapter Three

PROFESSIONAL ADVISORS

A.   Prelimary Observations

B.   Your Banker

C.   Your Accountant

D.   Your Business Advisor

E.   Your Lawyer

Chapter Four

RISK MANAGEMENT 101 FOR PERSONAL TRAINERS

A.   The Importance Of A Legal Education

B.   What Is Risk Management?

C.   The Remaining Chapters In This Book

Chapter Five

HEALTH CARE SCREENING

A. Introduction

B.   Why Perform Health Care Screening?

C.   What Is Health Care Screening?

Chapter Six

NEGLIGENCE 101 FOR PERSONAL TRAINERS

A.   Introduction

B.   What Is Negligence?

C.   The Snail In The Ginger Beer Bottle Case

D.   Legal Procedure 101 For Personal Trainers

E.   More Legal Ground-Rules For Understanding Court Cases

Chapter Seven

THE TIMOROUS MAY STAY AT HOME

A.   Introduction

B.   What Is: Volenti Non Fit Injuria?

C.   American Tort Law And The Assumption Of Risk

D.   (Rostai) The Personal Trainer’s Decision Of The Century!

E.   The coaches/sports instructors’ decision of the century

F.   Par Is Cemented In Sports-Injury Case Law

G.   The Smith Squat Comes To The Supreme Court Of New York

H.   The Par Doctrine In Minors Sports Injury Cases

I.   All Roads May Lead To Rome

Chapter Eight

THE TIMOROUS MAY STAY AT HOME… SOMETIMES

A.   Introduction to Canadian Negligence Law

B.   Volenti Non Fit Injuria (Canadian Version)

C.   Volenti Non Fit Injuria In Canadian Legislation?

D.   Should The ‘Timorous’ Stay At Home? (Educational Law)

E.   More Sports Injury Case Law

F.   The Standard Of Care For Canadian Personal Trainers

Chapter Nine

NEGLIGENCE LAW IN LA BELLE PROVINCE

A.   Introduction To The Civil Law Of Delict

B.   Acceptation Des Risques (Volenti Non Fit Injuria)

C.   The Sport of Fitness in La Belle Province

D.   Le conditionnement physique au Quebec (An analysis of Quebec jurisprudence regarding personal trainer liability)

Chapter Ten

A LEGAL SNAPSHOT OF FITNESS LAW DOWN UNDER

A.   Background

B.   Introduction to Australian Fitness Law

C.   Personal Trainer’s Liability Down Under

D.   Waivers Down Under

Chapter Eleven

DEATH WAIVERS & OTHER ‘PROTECTIVE’ DOCUMENTS

A.   Introduction

B.   Why Should You Use A Waiver?

C.   What Is A Waiver?

D.   Other Essential Protective Documents

E.   Fitness Waivers In The United States

F.   The Fitness Waiver Decisions Of The 21st Century

G.   Electronic Waivers

H.   Sports And Recreational Waivers In Canada

I.   Minors And Waivers In Canada

J.   Are waivers legally effective in La Belle Province?

K.   Twenty Recommendations Regarding Waivers And Exclupatory Agreements:-

Chapter Twelve

PERSONAL TRAINERS’ LEGAL SCOPE OF PRACTICE

A.   Introduction

B.   Legal Activities That You Are Not Lawfully Permitted To Do

C.   Legal Activities That You Are Lawfully Permitted To Do.

D.   Case Law Dealing With Legal Scope Of Practice

E.   Ten Recommendations For Personal Trainers To Practice Within Your Legal Boundaries

F.   Physical therapists and athletic trainers

G.   Ten Recommendations For Physical Therapists

Chapter Thirteen

COACHING NUTRITION

A.   Introduction

B.   Nutritional Scope Of Practice

C.   Older American Case Law Regarding Nutrition

D.   Magic Beans Called Supplements

E.   Horrific Little Pricks

F.   Original Specimen Of Assumption Of Risk, And Release Of Liability And Waiver Of Claims For Nutrition Coaching Services

G.   Coaching Nutrition in Canada.

Chapter Fourteen

FITNESS INSURANCE

A.   Introduction

B.   One Fitness Insurance Case

Chapter Fifteen

THINK WITH YOUR HEART (CPR, AED, & ECC)

A.   Emergency Cardiovascular Care

B.   American Case Law Regarding Emergency Care (AED’s)

C.   American Emergency Care Case Law (CPR)

D.   Canadian Emergency Care Law

E.   Quebec Has A Unique Approach To Emergency Care.

Chapter Sixteen

25 FITNESS BULLETS FOR PERSONAL TRAINERS

A.   Introduction

Chapter Seventeen

THE PATH TO SUCCESS

A.   Pulling It All Together

B.   The Path To Success

Appendix A

CANADIAN CERTIFICATION PROGRAMS/BODIES (Listed Alphabetically)

Appendix B

TOP 20 RECOMMENDED RESOURCES AND WEBSITES

Appendix C

ENDNOTES

Author’s Note

This book does not contain footnotes in the traditional format.

Instead, sources are given immediately after the text. All court cases are mentioned by their first name in brackets and the name of the first party is underlined. The reader can then find the complete reference in the alphabetical list of cases which are reproduced as Endnotes as part of APPENDIX ‘C’ herein.

Disclaimer

This is a WARNING TO THE READER!

The information and material contained in the present Book is for educational purposes ONLY.

This information is not for the purpose of providing professional legal advice.

Laws in every state/province are different. Case law and judicial decisions are constantly changing. What may be good law or legally binding today—may not be tomorrow.

In light of the above, no recommendation, or proposed problem solution should be implemented without prior professional legal advice.

YOU should contact your local attorney to obtain legal advice with respect to any particular legal issue or problem.

If LEGAL, MEDICAL or other expert assistance is required, the services of competent professional persons should be sought.

The author and publisher are NOT engaged in rendering LEGAL, MEDICAL or other professional services by reason of his authorship or publication of this book.

The opinions expressed in this book are the SOLE OPINION of the author—and no one else. The author has received no compensation, financial or otherwise, from any person and/or organization mentioned and/or recommended in this book.

Dedication

This book is dedicated to my late father, Frank William Pitts.

I love you Dad; wherever you are. This book is for you Dad.

Acknowledgements

I wish to thank all of my family members, friends and colleagues who have helped me to develop and evolve into a better jurist, a better coach a more caring human being. Writing this book has presented a special worthy challenge. There are two people to whom I would like to offer my special heartfelt thanks.

   To Joseph Leon Dore, my best friend in life, my mentor, my business advisor, my golf partner, my former client and my collaborateur for the last 35 years; Thanks Joe for your valuable input, your inspiration and your support with this book. Most of all Joe—Thank you for your friendship.

   To Maureen Rodrigues, for giving me inspiration and moral support. Thanks for acting as a sounding board for my ideas. Thank you for helping me to Think with my Heart.

Preface

There are three things that I know in life. I know law; golf & fitness;—and a little bit about women—:)

The idea for the present book originated from a strong desire to help fill a perceived void in the legal education provided to personal trainers. It began with the revelation that life is too short for one career. After thirty years of legal practice which consisted mostly of family and corporate litigation, a career as a personal trainer suddenly emerged as a dream which required fulfillment.

Ten years ago, pleading before the courts occupied my days; while studying anatomy, physiology, exercise and nutrition filled my evenings. It was rather shocking to discover that there was no legislation which governed or regulated personal trainers. Becoming a personal trainer was as simple as printing a business card on a computer and simply calling yourself a personal trainer. It was easier to obtain a certification as a trainer than it was to obtain a driver’s license. Very few personal training certifications even required a practical test. Would you hire a pilot who had not been trained to fly a plane?

To further my ambitions, I began collecting personal training certifications like postage stamps until being satisfied that my personal training education and experience had transformed me into a decent strength coach. I have had the privilege, the honour and the great pleasure to be taught by some of the finest coaches in the world, including such icons as Mr. Michael Boyle, Mr. Gray Cook and Mr. Al Vermeil. It was quite a thrill to be called coach by the likes of the aforementioned individuals. During the last ten years, fulfilling my continuing education credits has permitted me to keep my legal license to practice law.

A few years ago, a close friend astutely remarked to me—It seems that you can take the lawyer out of the courtroom, but you can’t take the courtroom out of the lawyer. A truer statement was never uttered.

The legal education provided to personal trainers and other fitness professionals is virtually non-existent. The paucity and inaccuracy of legal information in the fitness industry is very problematic for all stakeholders—not just personal trainers. Moreover, there is a boatload of misinformation and myths rampant in the fitness industry. This situation coupled with the lack of legislation means that there are many legal issues; or legalities (in common parlance) that personal trainers must address in their day to day practice. To complicate the lives of personal trainers, many consumers have been led by mainstream media to believe that the fitness industry is rife with charlatans and snake-oil salesmen. The media has portrayed personal trainers as uncaring, greedy people who are only out to make money on the backs of the consumer. Most personal trainers are caring people who really want their clients to be strong and healthy. The truth is that allopathic doctors are a dying breed—literally as will be evidenced in the present book.

In essence, this book is a legal textbook designed by a personal trainer (former hard-nosed litigator) especially for personal trainers. The book covers an entire spectrum of legal issues which are largely unknown and/or misunderstood by even seasoned veterans in the personal training industry. This book will shed light on those issues and offer protective strategies. Every attempt has been made to make the present book an enjoyable learning experience. It will offer a valuable learning experience to anyone who is truly interested to learn some basic legal concepts which permeate the lives of everyone. I have been inspired to try the M.I.S.S. (make it simple stupid) style rather than the K.I.S.S. approach, (Keep it simple stupid). I got this idea from Michael Boyle, who has a great way of explaining some complicated training in simple words. This is the real challenge for any teacher—irrespective of the subject-matter being taught. I was blessed to be taught by with some great professors in law school. I hope some of their magic has rubbed off on me. If you had suggested to me two years ago that I would embark on yet another career- I would have laughed at the idea.

The format and style of writing in the present book does not follow the traditional model for a legal textbook. Nor has the Chicago Manual of Style for publications been followed; (much to the horror of my publisher and editors.) This book does not contain a formal bibliography; but—all publications/sources are referenced in the actual text. There are no traditional footnotes. These have been replaced by endnotes which make reference to the bracketed first name in a legal case, which is then listed alphabetically in Appendix C as an endnote. This is the new way to refer to legal decisions with endnotes. I have simplified this by using only the first name of the legal party involved in the court decision.

The present book is an assemblage and a patchwork quilt of NEW LAW. It has been written in this new unorthodox format specifically designed for personal trainers. Unbeknownst to many people, (including legal people), there is a new global trend called the Plain-Language Movement. The idea is that jurists, judges and lawyers should refrain from using legalese". There is even legislation in several jurisdictions in this respect. (In the USA there is a Plain-Language Act passed in 2010.

I have tried to unmask the cloak of mystery which lawyers have traditionally used to mystify the law. The law is quite complex. It is not black or white. It is gray. The challenge for writing a legal bible is to explain the gray—clearly-:) This has challenged legal scholars for centuries. To my knowledge no one has written this genre of book.

Most traditional legal texts are somewhat dry and lack-lustre even by legal community standards. Personal training is a vibrant exciting new profession. To some people reading law and learning law literally puts them to sleep. My style of writing hopefully will keep the reader engaged long enough to digest one case at a time. (The old Chinese adage says that the road of a thousand miles begins with the first step). Some readers may well find that this book should make interesting bed-side reading.

The entire choice of the subject-matter, the specific order of chapters, the unorthodox use of caps and underlines are my brain child. I assume the entire responsibility for this new approach; I decided to use caps and underlines as a kind of experimental approach; it is an outside-of-the-box approach. One size does not fit all—not in the fitness industry—nor in the publication or legal industries. The intended idea was to remove some of the complexity, even by using repetition if necessary. My unusual style is intended to operate like high-lighting a text. It’s my Coles notes approach. This method caters to either a fast or a slow reader. The reader can take the slow or the fast reading route. Some people try to absorb completely the first time; so they and read more slowly. Others like the undersigned prefer to race to get to the legal crunch.

I am confident that this book will prove beneficial to any personal trainer or other fitness professional who wishes to learn some basic law. My belief is that it should provide a good reference book for the personal trainer’s library. It may even inspire someone to enroll in law school-:)

To the timid reader or to the timid exerciser—I say as did Judge Cardozzo : The timorous may stay at home.

Finally, I admit that it has been an absolute joy for me to reseach and to write this bible. For an old legal warhorse, it’s exciting to be at the cutting-edge of an exciting new kind of law—Fitness Law.

I know that writing this book has made me a better jurist; a better coach, and a better person.

Thank you for reading this bible.

Ottawa, November 19th, 2013

Gary W. Pitts

Introduction

I take the view and always have that if you cannot say what you have to say in twenty minutes, you ought to go away and write a book about it—Lord Brabazon

A broken Global Health Care System and a strong Global Fitness Industry has birthed a fierce new Health warrior—YOU—THE PERSONAL TRAINER!

Exercise and nutrition are YOUR swords to battle obesity and chronic diseases. This legal book has been written to provide YOU with the fundamental LEGAL KNOWLEDGE that YOU NEED to be a successful PERSONAL TRAINER. This legal book is your LEGAL shield.

PERSONAL TRAINERS—

   YOU have emerged as THE NEW SAVIOURS of the GLOBAL HEALTH CARE SYSTEM!

   YOU ARE the NEW PRIMARY HEALTH CARE PROVIDERS! YOU ARE MEMBERS OF AN EXCITING, NEW—NOBLE PROFESSION.

   PERSONAL TRAINING is an UNREGULATED AND UNLICENSED PROFESSION.

   THE ABSENCE OF LAWS REGULATING YOUR PROFESSION has been a great LEGAL BLESSING in disguise.

   AMERICAN COURTS have provided YOU with A NEW STANDARD OF CARE!

   AMERICAN COURTS have decided that FITNESS IS A SPORT!

YOUR NEW STANDARD OF CARE is the HEIGHTENED STANDARD OF CARE! It is now called THE STANDARD OF RECKLESSNESS! OR—some have called it the NO-DUTY-FOR-SPORTS RULE!

YOU CAN REJOICE about the lack of FORMAL LEGISLATION AND LICENSING RESTRICTIONS!

YOU CAN REJOICE in the knowledge that you have the PASSION AND SKILLS TO TRANSFORM LIVES—without spending years and thousands of dollars on a university education.

YOUR LIFE-CHANGING EFFORTS will add LONGEVITY and much needed QUALITY OF LIFE to the lives of MILLIONS of people; even to the lives of people you never meet.

For several decades we no longer perform many traditional physical activities. Once we cut down trees with a hand saw; we stoked the stove with wood and coal; we fetched water in a pail from a well; we cleared snow by hand with a shovel. Once we harnessed our horses; we hitched up our plow; we plowed our fields to grow our crops.

Then the industrial revolution came. Inventions of all kinds made countless physical activities of our lives much easier. Blue collar jobs became automated. Western society moved from a rural society to become an urban society of people living in concrete jungles. Thousands of machines and mechanized inventions have replaced most human ACTIVITY and most human MOVEMENT. Automobiles, bullet-trains, super-sonic planes, and hovercraft are now the fast new modes of transportation across our planet.

Enter FAST JUNK FOOD. Most food on our planet is PROCESSED JUNK FOOD laced with chemicals, additives, and a plethora of toxins—most with chemical names no one can even pronounce! Worse yet, manufacturers are not required by law to provide accurate labelling. We need to be Sherlock Holmes to discover what is actually in our packaged food! It is often said that the cardboard box your cereal comes in may be more nutritious than the contents! CAVEAT EMPTOR!

In 1988, more than 25 years ago, the first Nutrition and Health Report by the US Surgeon-General C. Everett Koop concluded that 8 out of 10 chronic diseases were caused by poor diet and nutrition.

Next there came a little thing called the INTERNET. Now, electronic information BLAZES across the universe at the speed of light! The internet has added another HUGE layer of COMPLEXITY into our modern lives. There have been many PHENOMENAL benefits, which the worldwide highway has added. BUT—the Internet has added one more serious challenge to our time-crunched lives.

Our beloved internet has now added another eight or ten hours to our ubiquitous sedentary lifestyle! The Internet has caused most people to sit on their derrieres for YET ANOTHER SEVERAL hours each day! The Surgeon General’s 25 year old report has been relegated under a pile of unanswered e-mails and a stack of snail mail messages. Less time has made it even tougher to follow good dietary choices. From 80 percent in 1988, poor dietary and exercise choices have now ESCALATED to a WHOPPING 95 % in 2013! As one pundit recently remarked:

Today, more than 95% of all chronic diseases are caused by food choice, toxic food ingredients, nutritional deficiencies and lack of physical exercise.

—Mike Adams,

The Health Ranger

BUT there is GOOD NEWS! NOW—MORE than ever, the WORLD needs YOUR EXPERTISE IN NUTRITION AND EXERCISE; No other profession in the WORLD combines BOTH OF THESE LIFE-CHANGING SKILLS TOGETHER!

YOU now have EVEN GREATER CAREER OPPORTUNITIES! Most people know that personal training is the fastest growing segment of the North American economy. Most people realize that the growing field of PERSONAL TRAINING AND FITNESS have very little to do with body-building.

THIS BOOK WAS WRITTEN PRIMARILY FOR UNREGULATED, UNLICENSED PERSONAL TRAINERS—and other FITNESS PROFESSIONALS.

By this we mean individuals who provide EXERCISE AND NUTRITION ADVICE to people. As personal trainers, WE believe that HEALTH is not defined by the ABSENCE of disease; but rather by the PRESENCE of VITALITY AND ENERGY. WE are individuals who have taken an alternative approach to HEALTH AND WELL-BEING. WE are individuals who view the body HOLISTICALLY.

WE believe that we NEED EXERCISE. WE also believe THAT—YOU TRULY ARE WHAT YOU EAT.

If YOU are a PERSONAL TRAINER, it is crucially important that you know this. The Fitness Industry is UNREGULATED; moreover, we live in an age of increasing government regulation in the health care industry.

YOU SHOULD REJOICE in the LACK of government regulations! This LACK of government/bureaucratic/red-tape and/or licensing RESTRICTIONS IS A HUGE BLESSING IN DISGUISE—TO YOU—TO YOUR PROFESSION AND TO THE GLOBAL FITNESS INDUSTRY!

YOU must realize, however, that the LEGAL ASPECTS OF PERSONAL TRAINING CANNOT BE OVERLOOKED. Every personal trainer NEEDS TO UNDERSTAND THE LEGAL ISSUES involved in the operation of his business and in the practice of his profession. In OTHER licensed health care professions, there ARE LAWS. These laws define the legal scope of practice, legal standard of care and the other duties which apply to LICENSED health care professionals. Personal trainers have been left to find the legal answers by themselves. There is a serious lack of legal knowledge provided by the fitness industry. YOU should have NO FEAR! This book was designed to provide YOU with the LEGAL EDUCATION that YOU need. You do not need to attend four years of law school.

YOU need to know as much as possible about the LAWS AND LEGAL ISSUES (or LEGALITIES) that affect YOUR PROFESSION. The more legal knowledge that YOU have, the better you will be able to PROTECT YOUR BUSINESS, AND YOURSELF BOTH PROFESSIONALLY AND FINANCIALLY.

IN this way—YOU will gain CONFIDENCE; YOU will have LESS STRESS AND LESS WORRY about LEGAL ISSUES; YOU will be able to concentrate on GROWING YOUR BUSINESS AND YOUR CAREER.

The LAW IS very COMPLEX and VOLUMINOUS. Not even the most knowledgeable lawyer can understand it all. Lawyers and legal scholars HAVE NOT TRIED to make the law more accessible to the ordinary person. Legal experts have acted more like priests of an obscure and mysterious religion. They have kept the law MYSTERIOUS and INACCESSIBLE.

EVERYONE knows that LEGAL ADVICE is very EXPENSIVE! This book will provide YOU with much of the legal information YOU need to know. This book does NOT profess to provide ALL of your legal answers. A good lawyer does not need to KNOW all of the answers. A good lawyer needs to know where to FIND the answers. This book DOES profess to provide you with the information and resources that YOU need to help you and your lawyer FIND the answers to your LEGAL ISSUES.

YOU will be provided with the LEGAL RESOURCES that YOU need; this will help you and your attorney DRAFT YOUR PROTECTIVE LEGAL DOCUMENTATION that is functional and practical. YOU will be provided with the TRAINERS’ abridged version" of Negligence law—in four different legal jurisdictions; common law USA, common law Canada; La Belle Province and Australia.

YOU will be provided with a detailed analysis of every MAJOR legal judgment which affects YOUR PROFESSION. YOU can read the detailed excerpts from the MOST RECENT APPELLATE COURT DECISIONS from each of these four jurisdictions.

After the verbatim quotations from each court decision, YOU will be provided with short take-home messages or the author’s comments and explanations. This will resemble a Coles Notes format. YOU will learn and study actual REAL-LIFE LAWSUITS which have been decided by the courts. Best part—there will be no exam—but occasionally you will be asked a few questions-:)

THIS BOOK will also ENABLE YOU to help educate your lawyer in FITNESS matters. THIS BOOK will save you some MONEY. It definitely should help eliminate some STRESS from your career—and from YOUR LIFE.

THIS BOOK will provide YOU with the necessary, FUNCTIONAL RISK MANAGEMENT/TOOL/STRATEGIES to enable YOU TO SAFELY AND SUCCESSFULLY PRACTICE YOUR PROFESSION.

THIS BOOK will provide you with more peace of mind so that you worry less about the possibility of pesky frivolous lawsuits;

YOU are hereby PROVIDED with the FIRST COMPREHENSIVE LEGAL MANUAL FOR PERSONAL TRAINERS and FITNESS PROFESSIONALS. This book COMPLEMENTS your OTHER Fitness and educational Credentials; University degrees, Fitness Certifications, and practical experience.

THIS REFERENCE BOOK WILL SERVE YOU FOR MANY YEARS TO COME—AS YOUR PILLAR OF LEGAL STRENGTH.

PERSONAL TRAINERS—YOU ARE MORE THAN PERSONAL TRAINERS!

YOU ARE PRIMARY CARE HEALTH CARE PROFESSIONALS!—YOU ARE LIFE-CHANGERS!

THIS IS YOUR LEGAL BIBLE. IT IS THE PERSONAL TRAINER’S LEGAL BIBLE.

ENJOY!

Gary W. Pitts, Sports & Fitness Lawyer,

Ottawa, Canada.

November 19th, 2013.

Chapter One

THE PERSONAL TRAINING PROFESSION

Come back with your shield or on it

(Plutarch.Nor.241)

A.   Origin Of The Profession

The first Olympic game was recorded in ancient Greece in 776 B.C., about three thousand years ago. Three hundred years later, in 480 B.C., at the battle of Thermopylae, King Leonidas and his 300 Spartan soldiers fought a massive Persian army, estimated at between 100,000 and 300,000 soldiers. The Spartans were annihilated after three days of ferocious battle in one of history’s most glorified last stands. In 2006, the epic movie, 300, depicted this famous battle. This Hollywood film glamorized the lean, powerful, bodies of the Spartan soldiers, sweat dripping from their chiseled, 6-pack abs and their sculpted, muscular physiques. The Spartans were portrayed as almost god-like; with virtual super-human strength and physical endurance. History teaches us that Spartan children were born and raised as professional soldiers. They learned war from the time they were weaned from their mother’s breast. They were taught to defend the Spartan state; to fight to the death and to never surrender. A typical Spartan mother often was heard to say to her son as he went off to war… son, come back with your shield or on it.

Three hundred years later, in 146 B.C., the mighty Romans conquered and replaced the Greek empire. The Roman Empire was built on the backs of the professional Roman fighting soldiers. Roman soldiers were feared by their enemies and idolized by Roman citizens. Roman soldiers were famous throughout the known world for their superior strength, conditioning and disciplined ferocity in battle. Most days, Roman soldiers marched many miles laden with heavy packsacks, shields, spears and other weaponry. Often after long forced marches, Roman soldiers were compelled to battle enemy soldiers who had the advantage of being well-rested and fighting on their home turf.

Roman history is replete with epic battles. Roman armies developed a strong reputation for winning a high percentage of land battles, while often heavily outnumbered by their enemies. At some point in history, a custom was started by Roman generals. This custom was the origin of our English word for decimate. Occasionally, after a Roman army lost a battle, it was commonplace for Roman soldiers to be decimated. In practice, this meant that one in ten Roman soldiers was randomly put to the sword, as an exemplary punishment. Romans soldiers quickly realized that if they did not lose their life during a winning battle, they might be unlucky to lose their life after a losing battle. Much of our knowledge of Roman history and Roman war is recounted directly by Julius Caesar. (**N.B. The general historical background information in the present book has been extrapolated from the author’s memory and several years of Latin studies at the secondary and university level. This also explains the author’s love for the Latin language).

It takes a great deal of courage to fight to the death in hand—to—hand battle. It takes even more courage to face the prospect of death, at the hands of your own leaders.

Fast forward to the 20th Century; American and Canadian professional soldiers gave their lives for North Americans and the World. They won two World wars to preserve our liberty and democratic freedoms. We need to be truly appreciative for their sacrifices.

In the 21st century, the professional soldier is still the defender of our democratic freedoms and liberties that we enjoy. Mostly unknown, and vastly under-appreciated by most citizens, these Professional soldiers are an elite, nameless, faceless, highly-trained handful of soldiers who spend their lives improving their bodies. They spend their every-day life rehabbing from all kinds of injuries sustained in their battles. They hone their strength and conditioning so that they are better able to protect us against the tyranny of the modern-day terrorists. We should be thankful and grateful and support our soldiers and veterans.

We can easily see that the origins of the profession of personal training may well be rooted in the ancient military profession, started three thousand years ago by the ancient Greek and Roman civilizations. This tradition continues today in our modern day North American society.

The History of Fitness

Dr. Len Kravitz, and Mr. Lance C. Dalleck M.S., has co-authored an excellent article called The History of Fitness penned at www.unm.edu. Dr. Kravitz, an award-winning Professor and author traces the history of fitness from primitive man (pre-10,000 B.C), up to and including modern day. The history of fitness is covered extensively in this excellent article.

It is well known that early leaders in the United States such as Benjamin Franklin, and President Thomas Jefferson were adamant about the need for exercise and fitness. The latter was almost obsessed with exercise: Not less than two hours a day should be devoted to exercise; and the weather shall be little regarded. If the body is feeble, the mind will not be strong. President Theodore Roosevelt; (perhaps the most physically fit President to occupy the oval office had an infatuation for fitness similar to the ideology of ancient Greece.

In the 1960’s President John F. Kennedy was widely known as a major proponent of fitness and its health-related benefits to the American people. In the 1950’s and 1960’s Jack Lalanne, (a guiding pioneer of fitness), Jane Fonda and Richard Simmons became fitness celebrities on their T.V. programs. In our modern time, Dr. Ken H. Cooper is widely recognized as The Father of the Modern Fitness Movement; who is generally credited with encouraging more individuals to exercise than any other individual in history. He founded the world famous Cooper Institute, one of the major certification organizations in the American fitness industry.

There can be little doubt that The First Lady, Ms. Michelle Obama, could very well be dubbed the modern-day First Lady of Fitness. It appears that she was recently ranked number one in the top 100 most influential People in the Health & Fitness Industry She is very well-known for her efforts to promote health can fitness in America.

As personal trainers, YOU are members of a new, noble Profession. It is an un-regulated and un-licensed Profession. You may even envisage yourself as the modern day equivalent of the warrior-like Spartan and Roman soldiers; (without the killing of course!)

Your battles are waged against obesity, inactivity, and mal-nutrition which cause a litany of diseases.

The Personal Training Profession may have commenced in a concrete sense, with the birth of the American College of Sports Medicine (ACSM) founded in 1954, to promote fitness, health and to certify fitness professionals. It appears that this organization likely produced some of the first certified personal trainers in North America.(source www.acsm.org.)

Two decades later, The National Strength and Conditioning Association, (NSCA), a non-profit educational body was established in 1978 to provide information about strength and conditioning to the general public and to its members. According to its website, (nsca.org) the (NSCA) has evolved from a membership of 76 members in 1978 to a membership today of more than 30,000 members in fifty different countries. Today, it is one of the largest certification organizations in North America. (source: www.nsca-lift.org.)

In the 1970’s people became more interested in their body images as the bodybuilding era began in earnest. Recreational exercisers started to flock to the commercial gyms in greater numbers. There began a proliferation in the number of commercial gyms, both in the United States, in Canada and globally. Serious athletes, such as Olympic lifters, power-lifters and bodybuilders were now joined in the gyms by consumers who emulated the local body—builders and developed an interest in personal training. This powerful new consumer demand fostered a growing need for people with an expertise in anatomy, kinesiology, physiology, nutrition, and the paramount ability to assess clients to design appropriate fitness programs.

THE PROFESSION OF THE PERSONAL TRAINER WAS BORN.

At that time, however, few Fitness Professionals existed with the necessary expertise and knowledge to train clients. Even fewer people were competent and/or qualified to provide appropriate education to an increasing number of aspiring new personal trainers entering the marketplace.

B.   Personal trainers as primary healthcare providers

PERSONAL TRAINERS ARE PRIMARY HEALTHCARE PROFESSIONALS. This of course is de facto or in fact. This is not de jure or in LAW… YET! We are in a very unique, privileged position in our modern-day society. We have the knowledge and expertise necessary to solve the huge problems engendered by rising Healthcare costs.

In order to achieve the best results in preventing chronic diseases, the strategies and policies that are applied must fully recognize the essential role of diet, nutrition and physical activity (World Health Organization—May 2002).

Which healthcare professional is most qualified to provide lifestyle advice? Proper nutritional habits and regular exercise may both provide some benefit on their own, but they are most powerful when combined.

It has been said ‘the fact of the matter is nutrition and training are like two wheels of a bicycle; you cannot ultimately be successful if only one wheel is spinning." (Dr. Chris Mohr—www.MohrResults.com)

WE NEED TO REDEFINE OUR DEFINITION OF HEALTH CARE PROVIDER!

Obviously, all personal trainers and certifications are quite different. We have everything from the big box certifications to CrossFit. There are many organizations which churn out highly qualified personal trainers/fitness instructors. These trainers are not only the most knowledgeable health care practitioners as they relate to EXERCISE, but they are fast becoming the go to PROFESSIONALS on topics involving diet and NUTRITION AS WELL!

There is only ONE group of fitness professionals who possess these TWO areas of COMBINED EXPERTISE! PERSONAL TRAINERS—YOU ARE THE ONLY PROFESSIONALS who deliver EXPERT EXERCISE ADVICE AND who are also well versed in the BASICS OF NUTRITION.

PERSONAL TRAINERS—YOU ARE PRIMARY HEALTH CARE PROFESSIONALS! (albeit unregulated and unlicensed). YOU can be found just around the corner at the local gym or health club.

Physicians and dieticians see their clients from behind a desk. They give advice but do not see their clients regularly to be able to follow up and make hands-on lifestyle and dietary changes. Personal trainers, on the other hand, meet with clients at least two or three times per week.

YOU are in a unique position to motivate, educate, encourage and facilitate HEALTHY LIFESTYLE CHANGES on a continual basis. Professional personal trainers are extremely dedicated. RESEARCH has shown that personal trainers can increase exercise adherence. It has been proven that personal trainers are able to master social modelling social persuasion, physiological and emotional states—without a university degree in clinical psychology! (YOU ARE RECOMMENDED TO DO THE RESEARCH YOURSELVES).

YOU are extremely dedicated and passionate about helping people get strong and healthy. YOU only work in days of the week ending in Y. That is why—

YOU ARE THE NEW PRIMARY HEALTH CARE PROVIDERS!

YOU HAVE A UNIQUE SPECIAL ROLE TO PLAY IN THE GLOBAL HEALTH CARE SYSTEM!

YOU ARE NOT JUST PERSONAL TRAINERS—YOU ARE LIFE-CHANGERS!

C.   State Of The Fitness Industry

Most fitness professionals know that there has been more change in the Fitness Industry in the last THREE years than in the previous THIRTY years!

At present, there is no American or Canadian legislation which specifically licenses, regulates or governs personal trainers. There also is no law which regulates or governs the Profession of Personal Training itself. This has phenomenal LEGAL implications for all personal trainers. It also has important ramifications for the entire Fitness Industry. North Americans have been slow to recognize that the fitness industry is a major pillar of our healthcare system.

Another consequence is there are no legal, (local or national) Qualification standards which provide minimum education and/or competency requirements for a personal trainer to gain entry into the Profession of Personal Training. Anyone can call themselves a personal trainer. A person can print a business card on a computer and instantly become a personal trainer.

A gigantic legal effect is that there are no legal standards or other legal rules which delineate or define the legal scope of practice of the Professional Personal trainer. Lack of standardization of rules at the national level has caused confusion and concern among all industry stakeholders. The proliferation of certification/agency organizations has slowed down but accreditation of certification organizations is now the latest industry trend. The number of the latter bodies is steadily increasing. This phenomenon has also blossomed due to the lack of legislation governing the personal training/fitness industries. In many jurisdictions consumer protection and isolated laws govern the health club or gym industry.

As personal trainers, you certainly know that there is no legal definition of a personal trainer. It is futile to attempt a legal definition. There is a BOATLOAD of different kinds of personal trainers! Becoming successful in the fitness industry—especially as an entrepreneur is not based on paper credentials. The fitness field does have some quacks and celebrity quacks. The public is faced with an astonishing array of choices between great fitness professionals and a few charlatans who sometimes deceive the public.

As personal trainers, YOU must recognize and YOU must understand the undefined legal boundaries of your Profession. On the one hand, there are MANY kinds of HEALTH CARE SERVICES THAT YOU ARE LEGALLY ENTITLED TO RENDER AND/OR PERFORM.

CONVERSELY, there are VERY FEW LEGAL RESTRICTIONS limiting your LEGAL SCOPE OF PRACTICE (See: chapter Twelve Legal Scope of Practice, infra). There are only a few areas which are restricted activities which are legally reserved for other kinds of regulated, licensed healthcare professionals. You obviously have no desire to step on the legal toes of other licensed healthcare professionals with whom YOU NEED TO COLLABORATE! Actually, LEGALLY, it cuts both ways. Other healthcare professionals need to recognize and respect YOUR LEGAL BOUNDARIES TOO! Moreover, your legal scope of practice is FAR GREATER THAN YOU MIGHT IMAGINE! Many American Appellate Court judges have recently recognized your EXPANSIVE LEGAL SCOPE OF PRACTICE!

FITNESS has now been JUDICIALLY RECOGNIZED AS A SPORT!! ; (See: chapter two, infra).

HOW COOL IS THAT?

THIS PHENOMENAL DEVELOPMENT HAS HUGE LEGAL IMPLICATIONS!

As skilled, professional personal trainers you must now learn how to skillfully and safely navigate your fitness boats in vast new unchartered legal waters! You need to analyze, understand and respect the unwritten legal obligations (duties) of your unregulated unlicensed profession. This book was created to assist you in this connection. When YOU have read this book YOU will have an excellent understanding of your legal (mostly not codified) LEGAL duties towards your clients. YOU will also gain an understanding of how the judicial system and the Courts view personal trainers, personal training and the fitness industry.

D.   Licensure

Several years ago, several American states (California, New Jersey, Maryland, Georgia and Washington D.C.) attempted to introduce legislation to regulate personal trainers. Fortunately, it appears that the Fitness Industry was able to successfully thwart the implementation of all such proposed legislation; (source: ihrsa.org.)

In 2011, Bill 1005 has been introduced in the state of Massachusetts in an attempt to once again regulate/license personal trainers. It appears that this bill is pending before the legislature at the present time. It is incumbent on personal trainers (and all industry stakeholders) affected by this proposed law to scrutinize this proposed legislation. Most politicians have little knowledge about fitness, personal trainers, and the fitness industry. Most politicians are most likely ignorant regarding the important judicial decisions rendered by American Appellate Courts which impact any proposed legislation. It is entirely likely that much of the proposed legislation is a waste of time and money. Is licensure in Massachusetts or any other state really necessary? More than thirty years of fitness industry success is self-explanatory. If it ain’t broke—no need to fix it.

It is trite to say that there are no legal licences required for personal trainers. It should be noted that the state of Louisiana has licensed exercise physiologists. Exercise physiologists are a different legal animal with a different focus. They are not personal trainers. They may or may not even be considered as fitness professionals. It appears that much of their education has focused on outdated knowledge; inaccurate information about anatomy, physiology and how our bodies actually work. (The same holds true about allopathic doctors). Without entering the debate of whether Yoga instructors are personal trainers—it appears that fourteen American states have recently moved to license Yoga teacher training schools under licensing laws that apply to other private vocational schools.(source: www. yogajournal.com).

It would appear that this trend will continue as other American states realize that yoga licensure is now possible without passing new legislation. Some ingenious bureaucrats are excited to be able to milk existing cash cows. All to say—yoga afficianadoes—please beware of government bureaucrats! You should structure your business and your yoga teaching/education accordingly. It might mean obtaining advice from your friendly local lawyer-especially if you are an entrepreneur/Yoga afficianado.

While not legislation in the conventional sense, on March 9th 2011, The United States Senate (encouraged by IHRSA) unanimously passed Resolution 97 (SR 97) which affirms the importance of exercise and physical activity as a way of combatting obesity, reducing chronic disease and lowering healthcare costs. This is great news for the Fitness Industry, personal trainers and all healthcare professionals involved in the industry. Job opportunities will only continue to skyrocket!

What is "Licensure?

It simply means the process of getting a licence. Most times, a license is given by a legal department of government; for example, a driver’s license. As a personal trainer, YOU DO NOT NEED A LICENCE and therefore you need not be concerned about licensure until some TIMOROUS LEGISLATOR proposes a new law or regulation attempting to licence personal trainers. Then you should act if it affects YOU in your particular state or province.

For most professionals such as lawyers, doctors, accountants, and physical therapists, quality control, and professionalism is legislated and regulated by the use of a state or provincial licensing system. Most activities and/or industries in our democratic society are subject to licensing procedures (provided by their legal self—regulating/governing bodies.) These are called Professions and its members who hold licences to practice the specific profession are called Professionals.

There are no controlling bodies or laws which discipline and/or arbitrate disputes between clients and professional personal trainers. Because the profession of personal training is UNREGULATED—there is also no Code of Ethics established by law. Stated another way, there is no code of ethics which has the force of law that is LEGALLY BINDING AND ENFORCEABLE IN A COURT OF LAW.

PERSONAL TRAINERS—THERE EXISTS NO LEGAL GOVERNING BODY WHICH CONTROLS OR GOVERNS THE PRACTICE OF YOUR PROFESSION. There is no organization, nor association, federal or provincial of ANY kind in existence in North America which specifically represents YOUR interests as professional personal trainers.

YOU ARE YOUR OWN GOVERNING BODY!

This is a double-edged sword. Having no organization which represents YOUR rights as personal trainers is a disadvantage that places you at the mercy of the marketplace. On the other hand, no organization, agency or other body is legally able to CONTROL your sphere of activities and/or the legal scope of practice AS personal trainers—EXCEPT OUR COURT SYSTEM; (or your employers-of course). This is one of the reasons why it is ABSOLUTELY ESSENTIAL THAT YOU HAVE A SOLID LEGAL EDUCATION!

Some of the mainstream media has sometimes portrayed the Fitness Industry as rife with charlatans and snake-oil salesmen, peddling all kinds of magic potions respecting exercise and nutrition. This is mostly SENSATIONALISM AND FEAR-MONGERING! The overwhelming majority of personal trainers are competent and skilled exercise professionals. YOU are the UNSUNG HEROES of our healthcare system; YOU are the HEALTH WARRIORS IN THE FITNESS TRENCHES—helping people get lean, strong and healthy.

YOU SHOULD KNOW THAT DESPITE THE ABSENCE OF LAWS—THE LAW DOES PROTECT PERSONAL TRAINERS AND YOUR PROFESSION!!

It provides the important legal requirements which you require. The NEW STANDARD OF CARE for personal trainers has been established more than fifteen years ago.(See chapter Two; infra). Many Appellate Court judges are far more knowledgeable about the Fitness Industry than most people in the Fitness Industry! When you read some extracts and excerpts from some Judgments, you will be inspired by the judicial inspiration, admiration and esteem which most judges have for personal trainers. When you read their judicial words, you will be able to readily read the words of many judges who obviously LOVE PERSONAL TRAINERS for what YOU DO.

YOU will also witness the occasional isolated judicial disdain. That is normal. YOU ARE PIONEERS IN A NEW PROFESSION! IT IS NEVER EASY BEING PIONEERS!

YOU will be able to judge (sorry for the pun) which judges adore going to the gym and which judges are more timorous. You will always remember the famous words of Judge Benjamin Nathan Cardozzo—The timorous may stay at home). THIS THEME IS THE HEART AND SOUL OF THIS BOOK.

Would licensure be beneficial for personal trainers? Yes and No.

Is licensure really necessary? Absolutely not! For personal trainers it might have certain advantages:

1.   Personal trainers would be recognized publicly as important primary care healthcare professionals. They are now in fact and someday they will be recognized by law.

2.   It might promote greater competency in a greater number of trainers in the Profession of personal training.

3.   It would enhance the professional image and professional recognition of personal trainers in the eyes of the public. Your professional image has been occasionally tarnished by mainstream media and even by some healthcare professionals.

4.   Any legislation might not narrow the already existing legal scope of practice. On the contrary, personal trainers have vested acquired rights which have been used for the last 20 years. The legal recognition of the de facto (existing) scope of practice would probably even be expanded to legislate overlapping jurisdictional problems with existing licensed healthcare professions. Also, any law or legislation requiring licencing would normally provide transitory provisions and a suitable time frame in order to protect vested or acquired rights of existing trainers. There would certainly be grandfathering clauses to protect the acquired rights of personal trainers.

5.   Licensure would ensure that personal trainers see an increase in compensation. You may consult www.competitionbureau.gc.ca; a large Canadian study recently confirmed that licensed Professionals earn more money than unlicensed professionals. Do you have any problems with earning more money?

However, licensing could have the following disadvantages:

1.   Those business people with the deepest pockets would likely (through lobbying and politics) attempt to impose their ideology onto personal trainers and the fitness industry. Some politicians might try to change the policy decisions and judicial standards which already have been applied very effectively and JUSTLY.

2.   No one needs more bureaucratic red-tape.

3.   The North American economy is already OVER-REGULATED and OVER-TAXED. It would probably result in more costs for everyone.

In short—in the vernacular, we might say: If it ain’t broke, why fix it? Who is to say that society MUST follow the legislated paradigm which has regulated and licensed other health care professionals? Licensing legislation would likely open up a legal Pandora’s box. The allopathic medical profession literally has carved out its niche in the market place. They are under siege from a variety of other LICENSED health care professionals such as naturopathic doctors, osteopathic doctors, chiropractors and many other licensed health care professions who are carving a legal practice out of an outdated, obsolete, failed medical model.

YOU should realize that it is not possible to create MEDICAL SOLUTIONS TO FITNESS CHALLENGES. YOU are the REAL FITNESS EXPERTS—NOT THE MEDICAL PROFESSION.

E.   Certification(S)

What is certification? Actually, certification is a legal word which has MANY DIFFERENT LEGAL MEANINGS! It is beyond the scope of this book to examine all of the different meanings of the legal word