When you work out in a gym or fitness center or with a personal trainer, there are many risks involved and unfortunately injuries are common. As a personal trainer or the owner or operator of the gym, no matter how careful you are there is always a risk of customers suing you in case of injury or other harm.
Waivers help mitigate the risk of lawsuits by having the customer declare that they understand the risks and they are responsible for their own safety.
Here we run through the importance of waivers in the fitness industry, run through the standard phrases of a liability waiver and provide links to example waivers online.
(note that we are not lawyers and this article should not be taken in any way as legal advice)
There are two key reasons to have your customers sign waivers:
A lot of people aren’t aware of the risks involved in exercise. According to the US Consumer Product Safety Commission, there were half a million Emergency Room admissions from exercise and exercise equipment in the US in 2018. It’s therefore important to explicitly make your customers aware of the risks they are taking when they exercising or use exercise equipment.
In addition there is a responsibility on your customers to give a full and accurate medical declaration, to seek medical advice if necessary, and to learn how to properly train and use any equipment.
Even if you take precautions such as putting up safety notices, making sure all customers are properly trained on the equipment, etc, that doesn’t remove risk from lawsuits. No matter how careful you are, and how many precautions you take, it’s not possible to fully eliminate the risk of accidents and injury, especially as some of those risks come from the customers themselves, such as over-training. And any time this occurs, whether you are at fault or not, your gym or fitness center is at risk from a lawsuit, which can be costly even if it goes in your favor.
The signed waiver is written evidence that the customer understands the risks of using the gym or fitness facilities (or of taking part in personal training), their obligation to understand the equipment, and that they have stated any applicable medical conditions. It is evidence that they have voluntarily assumed the risk involved, and there is a substantial record of this being admissible in court as long as they are reasonable and clearly worded.
Waivers do not provide full protection, rather they reduce the risk that the gym, fitness facility or personal trainer is exposed to. The degree of protection they provide is partly based on the waiver itself. Is it clearly written? Is it written in a way that matches the laws of the jurisdiction? It is also partly based on the circumstances around signing the waiver – for example was the customer given the opportunity to fully read the waiver terms? And it is partly based on the actual incident – in particular in cases of gross negligence – where there was an issue that the establishment was aware of such as equipment with a safety fault – waivers would be a lot less effective.
It is possible to increase the level of protection by also taking out liability insurance. In this case if there is a claim against you the insurer may pay for the claim and for associated legal fees. Insurers would typically mandate specific clauses to go within the waiver to help protect both them and yourself, and as with any insurance liability insurance does not cover 100% of scenarios.
The waiver jurisdiction specifies which legal body would have authority over any cases – in general this would be the courts of the state or country in which the fitness facility or personal trainer is located. This clause helps avoid lawsuits from remote areas that may have different laws or legal precedents than the the ones the waiver was drawn up against.
The hold harmless clause is the core of a waiver, and is what absolves the liability of the gym or fitness center from any injury or damage caused to the customer. It specifies that the customer is accepting the risks involved in their use of the facilities.
It’s a good idea for this to break down specific risks – in general courts prefer waivers that have a degree of specificity to ones that are overly general. This can include how vigorous any activity is and possible consequences such as muscle strains or broken bones. It should also include non-exercise related injuries such as slipping in the shower.
A COVID clause is a variation of a hold harmless clause, but specifically relating to COVID-19 – that the gym or fitness center would not be liable should a given customer catch COVID-19 while in or around the premises. It may also specify what steps the business has been taking to avoid spread of COVID-19 between users of the facilities.
If a customer requires medical treatment, this gives consent for the staff or personal trainer to obtain care as required. It also specifies who will pay the costs of the care. This is particularly important in the US, where medical care costs are often private and can be substantial.
A partial invalidity clause states that if there is any dispute about part of the contract being legally valid (for example if that portion is overly broad, contradicts any laws or is written in unclear language), then the rest of the contract should still be considered valid.
Customers who are ‘minors’ – ie under 18 – are generally considered too young to be able to legally opt into a contract. Therefore best practice in this case is to have a parent or guardian provide a signature in a addition to the minor.
A waiver will almost always include a signature – legally this does not need to necessarily be handwritten and can be typed, as what’s considered legally most important is the intent of the customer when signing the waiver.
In addition there should be identifying information about the identity of the signer and when it was signed.
A media release clause provides release rights enabling the business to make use of pictures or videos they take of customers, and how they would make use of them. Generally this is for use in promotional/marketing or training materials.
A medical declaration indicates that a client is able to participate in exercise from a medical perspective. There is a standard form available from the Register of Exercise Professionals called the PAR-Q form which provides an easy way to check if the participant needs to seek professional medical advice first.
Always get proper legal advice. We are not a legal firm.
In the past waivers would generally be gathered on entry to a fitness facility or at the start of a class. This means keeping a stack of blank waivers around and hassle for the receptionists or trainers. In addition it’s challenging to file paper waivers in a way that a particular waiver can be found in the unfortunate event that it’s needed. (and it’s far too easy to lose paper waivers)
speedyWaiver online waivers avoid these issues. They provide a digital archive of all waiver PDFs which means that waivers can never be lost, and provides a lot of flexibility in how the waivers are signed:
speedyWaiver also provides many other features such as being able to separate waivers by group, being able to run analytics on responses to questions in the waivers.
