Waiver/Insurance Question while getting experience coaching

[grand666]

Morning,

I'm not seeking legal advice at all, just personal opinions of some of you who were in the same boat as I am right now.

I attended a seminar and saw that with the attendance certificate you can get insured through Sport and Fitness (if I'm not mistaken the name). I was wondering if it's a good idea to still pay a lawyer to draft up a proper waiver and also get insured even though I'm not an official SSC (yet). I'm training two people at the moment and will start to train two more starting January. later on there's an older lady who is interested to train as well to get stronger so she can go on a hike in the summer.

I know I need lots of coaching experience to become an SSC and I'm all for training people, but the question about protecting myself as much as I can came up today after another conversation about training and why I don't charge to train others.

So should I:

1. ... get a waiver explaining I'm not a certified coach (yet)
2. ... get insured
3. ... think about charging minimal dollars (the two people starting January are both willing to pay me a small fee for my time, they're putting their crossfit memberships on hold)

Just looking for opinions right now.

Thanks and happy new year. Thanks for all the time you guys put into this forum.

[Michael Wolf]

I don't think this is a good idea to post under the official "SS auspices" in the official Staff Q&A, without people who are actually qualified to give legal advice. I appreciate your sincerity and desire to do right, and develop as a coach, I just think it's too sticky a topic for us to be discussing under the official SS banner without people who are all qualified to do so. If you want to throw around ideas in the unmoderated sections, with caveat emptor applying as always, I think that'd be OK.

[Brodie Butland]

I can't give you an opinion on what you can do because that's completely a matter of your own risk tolerance, but I can tell you the reality of the situation as an attorney in this space.

If you are actively coaching people, you are potentially liable if one of them becomes injured. This is true even if you aren't charging money, or charging very little money, or only coaching a few people. It's also true whether or not you have a coaching certification, and whether or not you've disclosed your lack of a certification. And frankly, it doesn't really matter if your negligence caused the person to be injured or not, because it will cost a substantial amount of money for the privilege of trying to convince a judge or jury that, in fact, you did nothing wrong. There's a reason why defendants are willing to settle even borderline-frivolous cases...it's just too expensive and too time-consuming to go to the mat, even if you know you're right.

So the question becomes, what do you do as a result of this potential liability? There are three main ways to protect yourself from potential legal liability:

(1) Be dirt poor. So poor that no plaintiff lawyer would want to waste their time suing you only to recover a judgment they can't collect a nickel on. I'm talking owning no assets aside from a television and a dog, and making minimum wage at most. Most people do not like this option for obvious reasons. It is nice to live above the poverty line and to have things that you can call yours.

(2) Get insurance. Insurance doesn't protect you from being sued or getting a judgment against you, but it does make someone else pay for your legal fees and your judgment. Hell, insurance companies even provide you with an attorney that handles lots of cases for the same company. Lots of people do this. But remember: the insurance company is only liable up to your policy limit. If your policy limit is $2 million, and the plaintiff gets a judgment for $4 million...very unlikely you'd be hit with that high of a judgment, but it does happen sometimes.

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(3) Get a waiver. Why do this if you have insurance? Well, it's an added layer of protection. Let's say one of your trainees was injured, it is unclear whether you did anything wrong or not, and you get sued. If the trainee can find an expert that will testify that your negligence caused the injury, you may be stuck going to trial to have a jury decide whether you in fact acted negligently. But if the trainee signed a waiver releasing you from all legal claims even if you acted negligently (and you live in a state where such waivers are enforceable), you just created a way to short-circuit the entire case on a much easier legal question that the judge will decide on summary judgment (contract interpretation, as opposed to messy causation questions in tort law). Or perhaps a strong waiver would allow you to negotiate a much lower settlement that stays under your policy max.

Insurance coverage is relatively cheap. A good waiver usually isn't. You can draft one yourself, but you're rolling the dice in doing so. As I have related before, for my first legal presentation to the SSCA, I found six examples of fatally flawed waivers on the first page of googling "personal trainer waiver." One of them was written by a person who had two advanced degrees (neither one in law, however). I've read every waiver I've signed in gyms around the country for the last four years or so...I'd guess that, at best, 65% of them are enforceable. How confident are you that if you do a search, you can separate the good from the bad?

So usually I suggest that anyone who wants a waiver should get an attorney to draft it. But not just any attorney. Law is a vast field with specialties and sub-specialties. I know about as much about health care law as I know about quantum mechanics. Advance waivers for athletic activities is no exception...there are lots of nuances in the case law that someone who doesn't live in the area likely won't appreciate. The problem with getting an attorney knowledgeable in the area, however, is that they are expensive. I've traditionally charged flat rates to my personal trainer and gym clients for waiver and contract drafting to ensure that they have a predictable cost...but that flat rate isn't cheap and it's gone up every year, because I have superiors who expect me to bring in a certain monetary realization for my time.

So is a waiver worth it? Depends on a lot of things, like how risk-averse you are, what kind of assets you want to protect, how many people you coach, how much cash you have on hand, etc. It's a cost-benefit analysis that you approach the exact same way as any other issue you encounter in coaching, and it's a decision that ultimately only you can make based on your own circumstances.

Despite that I don't coach a lot, I still have a waiver and an insurance policy, because I don't want my wife and son to be destitute if someone blows an undiscovered aneurysm on my platform. But that's me...YMMV.

(Also note that I did not list "incorporation" as a means of protecting yourself from legal liability. This was deliberate. You cannot hide behind a corporate entity if you're the one being accused of acting tortiously.)

[AndrewLewis]

I basically did the same thing in 2015. Still not an SSC. Still working at it part time.
I immediately got fitness insurance with Sport and Fitness, then called Brodie. After realizing I didn't know what the fuck I was doing with the wavier, I paid Brodie to draft a waiver. He did so.

With those two things, and the fact that I always make sure my clients are happy (I get them personalized Christmas presents. I explicitly tell them that I will harder for their happiness and progress than any trainer they've had), I have not yet been sued.
The other thing to keep in mind is to vet your long term clients. If you work with someone that seems shaky and liable to sue, you're an idiot to take them on as a long term client. I've had people do my two week trial and then I don't follow up with them, because I don't want them as clients.

The other piece of advice I would offer you is not to explicitly tell people "I am not certified." If they ask you "Do you have any certifications?", do not lie. Just say "No, I don't."



All that said, my sample size for clients is small.

[grand666]

Brodie, thanks again for your great input. Strange how we want to help people and at the same time almost "don't want to" because we might get sued. I have another girl that wants to get stronger after she saw me in the gym yesterday. We talked about everything and she knows I'm not charging nor am i certified but still wants to train. I"ll have to look at getting insurance and a waiver. You might see that request come in too.

Andrew, how do you tel a client you can't/won't train them anymore? If I'm seen in the gym training a buddy or someone new and they come up saying "why don't you want to train me but you train them" and whine like that, what do you do?