Because the risk of injury is an inherent part of any physical activity, Box owners and Coaches are constantly striving to implement stringent safety protocols that will protect both members and service providers. But no matter how robust your culture of safety, fitness service providers must take further steps to protect themselves from the potential of member injuries.
Enter the waiver. Many readers will be familiar with the basic concept of a waiver, but the importance of a properly drafted waiver and waiver protocol cannot be understated.
First, a simple definition: a waiver is a legal contract between two parties in which one party voluntarily relinquishes a legal right. In the fitness context, a waiver is a contract between a fitness service provider and a member/participant in which the member agrees to relinquish its right to hold the provider responsible for the negligent acts or mistakes of the provider or its agents, and agrees that he or she assumes the inherent risks of engaging in the activity.
The purpose and importance of a waiver is fairly self-evident. For prospective members, a waiver outlines the risks associated with engaging in the physical activity and using the facility, and allows a member to make an informed decision regarding whether they want to be exposed to those risks. For Box owners and Coaches, a waiver provides a degree of protection from lawsuits that may arise from injuries that occur as a result of participating in the activity, or from the negligent acts of the service provider.
Although service providers have their pick of free template waivers online, not all waivers are created equal. There are a number of aspects providers should consider when adopting waivers — both in terms of the language used in the waiver and the systems in place to make sure the waivers are used properly:
- First and foremost, waivers should be executed before any activity, even basic instruction, is performed. Waiver programs are only as effective as the systems and people that implement them: Staff should be properly instructed on when and how to administer and field questions about the waivers; members should not be rushed to sign and should be given ample time to read and ask questions.
- The waiver should be a stand-alone document that is separate from any other documentation regarding your relationship with your member. If the waiver is buried in the middle of your membership agreement, you expose yourself to the argument that the member did not realize she was signing away rights.
- The waiver language should be written in “clear and unambiguous” terms — it should be written using language that a junior high student could easily understand. The language should be in big font and in a format that’s clear and easy to read.
- In order for the waiver to be considered a “contract” between the parties, the agreement must reflect that each side has exchanged something of value — often referred to as an exchange of “consideration.” If there’s no consideration, there’s no contract. In this context, the member’s consideration is his or her agreement not to sue, while the fitness facility is giving the member the right to use the facility and its services. A well-drafted waiver will leave no room for doubt that consideration has been exchanged, and might include language like the following: “In consideration of being allowed to participate in the fitness training activities and programs of . . . ” and so on.
- The waiver should include a clear statement that by signing the agreement and participating in the physical activity, the member is assuming all risks, both known and unknown. The waiver should state what risks are inherent in the activity, and should state that the activity could lead to the risk of serious injury, disability or even death.
- It is not enough to simply provide prospective members with waiver language. Fitness facilities must ensure that members are aware of the release provision by requiring a signature or express acknowledgement that the member has fully read, understands and accepts the terms of the waiver before engaging in any activity.
- Owners and Coaches should maintain a business practice of keeping and storing waivers in a secure place for years to come, even after members have moved on. The specific length of time will depend on the laws of your jurisdiction.
An important note: These are just a few of the important aspects of an enforceable waiver and effective waiver program. The enforceability of certain waiver provisions can vary dramatically from state to state — so the best course of action is to consult an attorney in your state or jurisdiction who understands the law, and preferably one who understands the scope of the activity in which your participants will engage.
NOTE: None of the information in this article is intended to create an attorney-client relationship. This article has been prepared for informational purposes only, does NOT constitute legal advice and is not a substitute for seeking legal counsel from an attorney.
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