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Ask a Lawyer: Managing the Real Risks of Virtual Training

Ask a Lawyer: Managing the Real Risks of Virtual Training

Mike Warkentin: (00:00)
Virtual training can cause very real issues for your gym. Are you protected legally? Today, I’ve got a gym-owning lawyer who can tell you how to reduce risk and avoid problems with online coaching. This is Run a Profitable Gym, and I’m Mike Warkentin. I’d really appreciate if you would hit subscribe wherever you are watching or listening, with my thanks. Now my guest, Matthew Becker, owner of GymLawyers.com, and he’s also the owner of Industrial Athletics in Pittsburgh. He’s the nexus of gym owners and lawyers. He’s gonna help you out today. Now, you might be sending out workout programs created by ChatGPT, maybe, but you can’t blame AI when problems arrive, and that kind of sucks, right? So “the machines gave you rhabdo, not me” isn’t gonna hold up in court. Sorry. Matt, virtual training became a bigger deal in Covid, but it was around before that, and it’s around after that. So what aren’t people thinking about when they’re talking about, or they’re using online coaching?

Matthew Becker: (00:53)
Hey, good morning Mike. Thanks for always having me on. It’s always a pleasure to talk with you.

Mike Warkentin: (00:57)
Yeah, I love it. I love it.

Matthew Becker: (00:58)
So, yeah, I know COVID, all of us gym owners went, oh, how do we do this online? Right? And we started these online businesses. And if you’re like me, you’ve let your online business die now because you’re putting all your time and effort back into your brick-and-mortar facility, but it’s still out there. I still get emails like three times a week from companies advertising “how to build my virtual coaching practice”. So it’s still there. So how does a brick-and-mortar gym owner secure themselves against ultimately liability, whether that comes from contract disputes or more likely injury disputes when we’re dealing with online clients. So we’re gonna walk through three different steps that you need to take in order to really secure yourself. But let’s go, let’s go.

Matthew Becker: (01:49)
There’s two different sort of online training platforms that we’re gonna cover. And really, both of these are going to be covered here under the steps that we’re gonna take. But we could either be sending a six week program to the individual to do, the individual wants to add 10 pounds to their back squat and we write up a six week program and we send it out to them. We say, follow the program, pay me 200 bucks, whatever it is. And then when you’re done, come back and I’ll give you another program. Okay? So that’s one. The other scenario would be, you actually have an online personal training client that you use, let’s say Zoom. And you get online with them 1, 2, 3 times a week and you essentially watch them work out through Zoom while you provide them instruction and the programming and everything else.

Mike Warkentin: (02:40)
So programming and coaching essentially.

Matthew Becker: (02:42)
Yeah. Yep. I don’t know. I don’t think there’s a third, am I missing one? You know, would there be another scenario?

Mike Warkentin: (02:48)
I guess there would be a hybrid version of that where you have, like, you definitely send out the workouts, but then they send you videos for review after the fact or something like that. There could be like a hybrid model I suppose that some people do.

Matthew Becker: (02:58)
Yeah. Yeah. Okay. So if you have a hybrid model, you’re still covered under this episode. All right. Okay. So what are the three steps we have to look at? Step number one is your insurance. Step number two is your liability waiver. Step number three is your membership contract. Okay. Step number one, pull out your insurance policy. Thumb through all of that and look for something that is called a designated facility exception, right? It might be under a couple of different names, but that’s gonna be the most common. Or better yet, if you don’t feel like thumbing through that thing, call your insurance provider. Go over to Aguard or the RRG or whoever you use, and ask them if your policy includes the designated facility exception. So here’s what this is. Years ago when I opened up my gym, I was shopping around for insurance policies to cover me, and I called the local Nationwide guy or whatever, and I got a quote and everything else, and it all sounded really good. And then somebody said, well, you really should check out Affiliate Guard. And I’m not name dropping it, they specialize in this stuff, but somebody said, you know, go check out Affiliate Guard. So I called up the owner, Vaughan Vernon, and talked to him about it and one of the first things he pointed out was, your Nationwide insurance policy coverage, your local coverage is not going to have the designated facilities exception. What that means.

Mike Warkentin: (04:38)
So you can’t, it would limit your business model in some ways, at least limiting your risk when pursuing additional business models.

Matthew Becker: (04:46)
Yes. And so what this means is basically if I go with one of those smaller policies from State Farm or Nationwide or some other local guy, then I will be covered as long as I am exercising on my gym floor within the four walls of my gym. Okay? And I make two distinctions there. One is on the gym floor, the other is within the four walls of my gym. Okay?

Mike Warkentin: (05:14)
Okay. I see where you’re going with this.

Matthew Becker: (05:16)
Because my policy doesn’t have a designated exception. So what we want is that exception to be put in our policy because we’re gonna send people up ropes, we’re gonna send people onto rings, we’re gonna send people onto pullup bars, which means they’re now off the floor. Okay.

Mike Warkentin: (05:37)
Okay. I had a different exception in mind, but I did not realize that. So that’s really interesting.

Matthew Becker: (05:42)
Yeah. What did you have in mind, just curiously?

Mike Warkentin: (05:45)
Well, I was thinking about stuff where someone maybe trains someone, does a PT session overflow in the parking lot or sends clients around the block for a warmup run or something like that.

Matthew Becker: (05:53)
Yeah, you’re getting ahead of me, Mike .

Mike Warkentin: (05:55)
Okay. So sorry about that. But that’s crazy. And you think about that acrobatic type stuff. So gymnastics facilities and even some of the gyms where they’re climbing on ribbons and so forth, some of that stuff is kind of cool. Yeah. The aerial stuff that would have the same thing. Yeah. Aerial stuff ’cause you’re not on the floor anymore,

Matthew Becker: (06:11)
Right? Right. So you have to,

Mike Warkentin: (06:13)
Cirque de Soleil is at risk. 

Matthew Becker: (06:14)
That’s right. Or the ninja, that’s another one right now is

Matthew Becker: (06:18)
The ninja and the cheer industry and the gymnastics industry, they love to subcontract with ninja instructors. So you have to make sure that your policy allows you to go off the floor. And the second thing which you jumped ahead on Michael, is once we go outside, so another thing that we commonly like to do is write, okay guys, warm up time. Run around the block. Right? Or today it’s super sunny out, so we’re all gonna meet out in the park and we’re gonna do an outdoor class because it’s cool and it’s fun. Helps the gym owner get maybe a little bit of extra attention for free. And it’s something fun that we can do. Or we’re gonna take a weekend and Saturday morning we’re all gonna go out to the track, the local high school track and we’re gonna do a running workout. On the high school track because it’s kind of fun and it’s exciting, it’s different. If your insurance policy does not have the designated facilities exception, you are now exposed. Because if you take your members outside of your four walls and somebody gets injured, you’re not going to be covered under your insurance policy. That’s going to be an exception. And your insurance is really quickly gonna bring the hammer down to say you went outside your four walls, we don’t have to cover you. Wow. And outside of your four walls includes going online.

Mike Warkentin: (07:44)
Okay.

Matthew Becker: (07:44)
So that’s step number one. Make sure that you have an insurance policy that’s going to cover you online. All right? Step number two, you need a liability waiver. Okay? Even though we’re online, it doesn’t matter. You’re still telling somebody what to do. And so we did a couple of blog articles on this. If you want to head over to GymLawyers.com and check out the blog of defining liability and whether or not your programming is a liability, right? And the answer to that is yes, liability is essentially your exposure to a lawsuit. That’s a very basic form. That is what liability is. Do you risk getting sued? Anytime you tell somebody what to do, you open up the potential that they’re going to get injured. And so yeah, you increase your ability or your chances of being sued. What’s programming? It’s me telling you, Mike, what to do in order to get a good workout. Okay? That’s the bottom line.

Mike Warkentin: (08:45)
21-15-9 of squats and handstand pushups or whatever.

Matthew Becker: (08:48)
That’s exactly right. Yep. I might do that today. 21-15-9.

Mike Warkentin: (08:52)
It’s not a bad workout.

Matthew Becker: (08:53)
Yeah. Squats, air squats or weighted squats?

Mike Warkentin: (08:56)
I dunno. Depends on what you want. I might say, you’re a pretty fit guy. I’d say throw on 185 there, make your legs burn and flip upside down and work the upper body. Give it a shot. I dunno, listeners, post your time to comments.

Matthew Becker: (09:08)
I have you there, Michael?

Mike Warkentin: (09:09)
No. Have I just put myself at risk by giving you that workout?

Matthew Becker: (09:13)
Not from me.

Mike Warkentin: (09:16)
This is entrapment now, now you’re entrapping me .

Matthew Becker: (09:21)
That’s true. Could I see you for Rhabdo? I’ll get back to you on that one,

Mike Warkentin: (09:25)
But okay, do like 3, 3, 3. That’s now.

Matthew Becker: (09:29)
.

Mike Warkentin: (09:30)
I’m gonna limit my risk. But you see how this spirals really quickly, right? Like yes, I give instructions, they’re done elsewhere and so forth. And you can’t monitor that person, to see how they’re actually performing this workout if you’re doing it with programming. So the risks do add up. We’re joking about it, but it is a thing to consider.

Matthew Becker: (09:45)
It really is. And especially if, if I came to you and I said, Mike, I wanna get better at my handstand pushups. And then you said, okay, cool. Go do 21-15-9 of 185 pound back squats and handstand pushups. Ready, 3, 2, 1, go. And then I drop myself on my head and hurt myself. Okay, there’s a chance I’m gonna turn around and sue you because you told me to do it. Right? Right. So you’re exposed, you have liability, and if that’s gonna happen, which it does, you better have a liability waiver. But this liability waiver needs to be different than the liability waiver you use for your brick-and-mortar gym because that brick-and-mortar gym liability waiver should speak specifically to the services that you’re offering in your gym. And you’re gonna have other various language in there that is going to apply to you being specifically at your gym. Okay? Things like, we like to layer things into our liability waiver forms like physical contact, okay? People are bit itchy about touching these days. So you need to have a physical contact portions of your liability waiver that acknowledges that the member is going to be touched by either in a professional manner by your trainer, or potentially by somebody else in your gym, right? And if they’re uncomfortable with that, they gotta let you know. All right, anyway. Sorry, I went off on an angle there, but

Matthew Becker: (11:12)
That’s not going to be in your online waiver, okay? So it needs to be separate. You also need a digital video portion to your waiver. Okay? So this is similar to your brick-and-mortar. If you have cameras in your gym, you should have a CCTV portion to your waiver that puts people on notice that they’re on camera and they’re waving any privacy rights and everything else. This is different to a likeness waiver, which allows me to use your image for my advertising purposes. The digital video portion to your waiver tells the member that they’re going to to be on video. This is especially true if you’re sending me videos of you working out or if we are doing personal training over Zoom and I’m watching you, okay? Because now there’s a level of privacy here that we’re breaching, not in a malicious way or intentional, but we’re breaching it, okay?

Matthew Becker: (12:12)
And you need to be acknowledging that. And there may be times that somebody hits record on something. And now we’re watching all of that video, right? And I’m recording all that video and now I may go back and re-watch that video. I may watch it again in order to look at your form. I may show it to one of my other coaches in order to show a demonstration of form. Okay? And you as the client have a right to all of this unless you’ve waived so in your liability waiver.

Mike Warkentin: (12:43)
Something a lot of people wouldn’t have thought of and certainly would never have thought of 25, 20 years ago mm-hmm. maybe even less than that. Yeah.

Matthew Becker: (12:50)
Right. So that’s step number two. Make sure you get that liability waiver. The proper liability waiver for online training needs to be separate from your other general gym’s liability waiver. Okay? Okay. Number three is a membership contract. Okay? So we’ve talked, I think you and I have talked, right? Talked with again about membership contracts and yes, we have, because we’ve talked about state requirements that need to be put in your membership contracts. Remember that conversation? This is a little bit different.

Mike Warkentin: (13:24)
Link the show notes as well.

Matthew Becker: (13:26)
Yeah. Thank you Michael. It’s a little bit different though. Because we’re online, we really no longer need those state requirements to be in there, okay? And we’re getting real into the weeds here on the law and the laws that apply across states and what’s required and things like that when we are servicing clients that are no longer in our state, right? So if Pennsylvania requires me to put certain things in my membership contract for my brick-and-mortar clients, do I or do I not need those if I’m doing online training with somebody in West Virginia, okay? Generally speaking, we don’t need the various cancellation notices and everything else, okay? You might look at the state that you’re working with in that client to see if they have any requirements and just put a few of those in the membership contract just in case, sort of to protect yourself.

Matthew Becker: (14:28)
But there’s two big portions that we must have in our membership contracts now when we’re working online, okay? First is the Electronic Funds Transfer Act disclosure, okay? The EFTs. And this is more commonly known to everybody else as ACH transactions, debit card transactions, and credit card transactions, okay? But it’s a federal law that says, especially when we’re talking ACH transactions, you have to have disclosures about that in your membership contract. And those disclosures need to give you permission if you’re doing things like automatically recurring payments online. Okay? So we gotta have that section. The other section that we better have is the governing law and jurisdiction section to my membership contract. Okay? So go pull out, if you’re a CrossFit gym go pull out your CrossFit affiliate agreement. If you have a cell phone, go pull out your cell phone agreement, okay? Yeah. All of these things, all these contracts that you’re signing on pretty much a daily basis all have a governing law and jurisdiction session. And if you look, they’re all suited to the location of the business you’re entering the contract with. Okay?

Mike Warkentin: (15:47)
So that’s like, this is where we fight and these are the rules we’re fighting by.

Matthew Becker: (15:49)
That’s exactly right. Okay. That’s exactly right. So if I go to sue CrossFit now on my affiliate agreement, my affiliate agreement requires me to go to Colorado now. Used to be California, in order to sue them, okay? Which is gonna be a real big burden to me, coming from Pennsylvania, to have to go over there to sue them. So I’m really gonna think twice about whether or not I have a big enough skin in the game to go to Colorado to sue somebody. Okay? Same thing if we’re doing online training, okay? If I’m training somebody in West Virginia and they get injured and they wanna bring a lawsuit against me, I’m the person offering the service. I’m the one getting sued. I don’t want them to sue me in West Virginia because I don’t wanna go down to West Virginia to have to defend this thing.

Matthew Becker: (16:42)
That means I have to spend more time and money going down there to defend it. The only way to prevent or to force them now to come up to Pennsylvania, and I say force loosely because we can’t ever talk about anything that definitively in the law, but to force them to come to Pennsylvania is for me to have a written agreement under which they’ve now agreed that any lawsuits have to be brought in my state Pennsylvania, and that my state Pennsylvania law is going to apply. Okay? So you’ve gotta have that in the membership contract. Otherwise, if you’ve got a really big online business and you’re servicing clients all across the United States, you’re exposed to every one of those individual jurisdictions. And when crap hits the fan, you don’t want to have to fly across the United States to defend yourself, especially when it’s like a 300 contract.

Mike Warkentin: (17:40)
Yeah. And now, I’ve said this in previous shows, listeners, when you listen to this stuff, it becomes this large list of tedious stuff that you don’t probably wanna deal with. And I understand that you’re a gym owner, you wanna teach squats, you wanna run your business and so forth. A lot of these subclauses for this agreement and all this other stuff, not super fun until you need it. In which case, you wish you had it. If you don’t have it, how can you do it? You can contact a guy like Matt. So Matt, talk to me about, a gym owner who’s listening to this wants to take action. What do they do and how do they deal with you?

Matthew Becker: (18:10)
Yeah, sure. The easiest way is just to go to my website, GymLawyers.com and we’ve got calls to action all over the website. You can submit for a free consultation, we’ll reach out to you and set up a phone call. There’s no cost just to talk about this stuff. Also, you go to the website, there’s the blog, it’s got all kinds of information there. And there’s the contact page and my cell phone number’s on the contact page. If you wanna call me or text me and you don’t wanna go through the online form, that’s perfectly fine too, but I don’t hide. It’s all there. So just the easiest way is go to the website, Gym Lawyers, plural, GymLawyers.com

Mike Warkentin: (18:50)
Guys, take a look at that. If this is something you wanna look into, again, downloading your contract off the internet, Matt and I have joked about this before, that might have worked maybe back in 2008 and it wasn’t a good idea even then. If you’re doing that right now, you may not be completely covered as much as you could be unless you get it tailored to your specific business. It doesn’t take a lawyer very much time to do it. It isn’t the most expensive fee you’re ever going to pay, and it may really save you down the line. Matt, thanks again for offering your advice. I really appreciate it because this does help gyms stay open.

Matthew Becker: (19:19)
Always a pleasure.

Mike Warkentin: (19:22)
That was gym lawyer Matthew Becker. He’s at GymLawyers.com. Make sure you get the S in there and it is plural. I’m Mike Warkentin. This is Run a Profitable Gym. We are here every week helping you do exactly that: run a profitable gym. If you don’t mind, on the way out hit a like, leave a podcast review, do something, interact with our show. I would really appreciate it. Thanks so much for listening or watching. Now, here’s Chris Cooper with a final word.

Chris Cooper: (19:47)
Hey, it’s Two-Brain founder Chris Cooper with a quick note. we created the Gym Owners United Facebook group to help you run a profitable gym. Thousands of gym owners just like you have already joined in the group. We share sound advice about the business of fitness every day. I answer questions, I run free webinars and I give away all kinds of great resources to help you grow your gym. I’d love to have you in that group. It’s Gym Owners United on Facebook, or go to GymOwnersUnited.com to join. Do it today.

Thanks for listening!

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