1. ACE Personal Trainer Manual 5th Edition
Chapter 17: Legal Guidelines and Professional Responsibilities
Lesson 17

2. LEARNING OBJECTIVES
After completing this session, you will be able to:
Compare and contrast the three main types of for-profit business structures
Differentiate between independent contractors and employees
Discuss the reasons for establishing contracts
Discuss and explain negligence and vicarious liability
Distinguish between use of legal documents including agreements to participate, informed consent, and waivers
Recognize personal trainer legal responsibilities involving facilities, equipment, supervision, instruction, and safety guidelines
Discuss the scope of practice for an ACE Certified Personal Trainer
Define the purpose of professional liability insurance
Evaluate legal implications of marketing activities, intellectual property, transportation, and financing
List five primary components of a risk-management protocol

3. BUSINESS STRUCTURES
A personal trainer should regularly consult with an attorney who is aware of the unique laws governing the trainer’s specific city, state, and county.
Typically, for-profit businesses operate under one of the following structures:
Sole proprietorship
Partnership
Corporation
Though this chapter primarily focuses on for-profit businesses, there are government-operated businesses as well as nonprofit organizations that operate with different legal and financial constraints. Even though a personal trainer may be training a client at a government-operated business (e.g., a community recreation center) or a nonprofit organization (e.g., a YMCA fitness center), the personal trainer may retain a different business structure for liability purposes. Personal trainers should consult legal counsel prior to training any client.

4. SOLE PROPRIETORSHIPS A business owned and operated by one person
The owner operates the business, and profits belong to the owner
Financial losses and liabilities are the sole responsibility of the owner
No corporate veil to shield the actions of the business from the personal responsibility of the owner
Potential drawbacks:
May be more difficult to raise capital
Even with employees, the business often cannot effectively function without the presence of the owner
Potential decrease in revenue if the owner takes a vacation or time off

5. PARTNERSHIPS
Two or more people who agree to operate a business and share profits and losses
Legal documents establish operational rules and define:
The structure for authority
The partners’ rights
Expected performance and contributions from each partner
Buy-out clauses
Income distribution
Responsibility for debts
General partnerships – divide ownership equally (50-50) or unequally
Majority partner – owns 50.1% or more; must approve business decisions
Minority partner – owns 49.9% or less
Limited partner – only liable for direct financial contributions

6. CORPORATIONS
Designed to create a “separate” entity from the investors and operators of a business
Exist as distinct legal entities and are regulated by state, federal, and international laws
Investors own shares of the corporation, which limits the investors’ personal liability
Some of the main corporate structures include:
Subchapter S-corporations
Limited liability companies (LLC) and limited liability partnerships (LLP)
C-corporations
Franchise operation business models
There are a variety of corporate structures and potential types of shareholders (e.g., preferred and common), and any personal trainer who is considering forming a corporation should seek legal advice to ensure that the proper corporate entity is created for both short- and long-term plans. Corporations can change their form, but this can require considerable time and may involve extensive (and costly) paperwork.

7. BUSINESS STRUCTURES
Personal trainers must contemplate the advantages and disadvantages of their business structure. In most cases, consultation with an attorney who specializes in this area can assist not only in reducing potential liability, but also in mitigating potential tax payments. In addition, the proper business structure will enable the personal trainer to properly prepare to expand the business if necessary.

8. EMPLOYEE VERSUS INDEPENDENT CONTRACTOR
Employees:
Have an expectation of consistent, regular work for an employer
Receive compensation on a regular basis
Typically receive training from an employer
Are supervised by an employer
Are taxed for social security and Medicare
May receive unemployment coverage, workers’ compensation coverage, and medical benefits
Independent contractors:
Are most likely hired on a short-term basis for a specific task or series of tasks
Are compensated at the completion of the job
Choose when or where to work
Typically require no initial or ongoing training
Typically provide their own equipment
Usually service multiple clients
It is the responsibility of all parties to clearly define the relationship and ensure that the actions of the fitness center and the personal trainer adhere to guidelines that govern the actions of independent contractors or employees.
In most cases, personal trainers act as independent contractors. Personal trainers typically do not have long-term commitments to their clients to perform services beyond the immediate future. In addition, personal trainers provide the expertise during the workout, with the client utilizing the trainer’s guidance. However, since the majority of trainers will work with clients at an established fitness center, the relationship between the center and the trainer needs to be clearly defined. Unlike a plumber who brings tools to complete a job, personal trainers who work with clients at fitness centers typically do not provide their own equipment (unless they own the center). Another potential concern is the solicitation of clients. A personal trainer who brings clients to a fitness center is operating in a different environment than one who arrives at the center and trains whoever has signed up that day.

9. CONTRACTS
Contracts ensure that all aspects of a business relationship are properly established.
The following elements are necessary to create a binding contract:
An offer and acceptance with a mutual agreement of terms
Consideration (an exchange of valuable items, such as money for services)
Legality (acceptable under the law)
Ability of the parties to enter into a contract with respect to legal age and mental capacity
Legal counsel should be consulted to ensure the written form is valid under contract law before it is utilized.
A document becomes a valid contract when signed by both parties.
Some personal trainers who are starting a business may feel that written contracts are unnecessary and that a brief chat and a handshake are sufficient when negotiating agreements. In the case of scheduling clients, that is often the standard practice. However, a potential miscommunication or misunderstanding may result in some difficulties, as any oral contract is subject to misinterpretation by the involved parties, and therefore is potentially dangerous. In the event of an oral contract dispute necessitating legal intervention, conflicting stories may be settled in a courtroom without sufficient evidence to support the trainer’s account of what transpired.
In addition to scheduling, written contracts should be utilized to establish payment terms before any session occurs. There should also be considerations for issues such as rescheduling, bounced checks, agreements to follow instructions and adhere to proper techniques, confidentiality, termination of the agreement, and other aspects critical to the session. Typically, a waiver will be signed as a component of the initial contract.
Personal trainers should insist upon a written contract not only with clients, but also with fitness centers, vendors, and any other entities with which they conduct business. In any case in which the agreement involves real estate or goods or services worth $500 or more, or requires more than one year to complete, the statute of frauds requires that there be a written contract if the agreement is to be valid. The courts will not intervene in a potential oral contract dispute if the contract violates the statute of frauds—it will simply invalidate the agreement.
Using valid contracts can save businesses money and mitigate a tremendous amount of time and stress. Far too often, personal trainers neglect to understand the importance of operating with valid contracts. In addition, they often fail to thoroughly read and understand the contracts presented to them by fitness centers and other vendors. A visit to an attorney’s office is advisable before signing any contract, but it is particularly important in cases where an employer–employee relationship is established or an ongoing time or financial commitment is created. Long-term contracts should be examined with particular scrutiny, since much can change over time.

10. NEGLIGENCE
Negligence involves failing to perform as a reasonable and prudent person would under similar circumstances.
A reasonable and prudent person is someone who adheres to the established standard of care:
ACE certification indicates that a trainer has demonstrated an acceptable level of competence and understanding of the established standards.
Since standards of care can and do change, personal trainers must stay abreast of new guidelines.
A negligent act can occur if a trainer fails to act (act of omission) or acts inappropriately (act of commission).
Negligence in personal training could occur, for example, if a trainer agreed to provide instruction and supervision for a weightlifting regimen. The agreement between the trainer and the client establishes a legal duty that would not be present if both parties were simply working out at a fitness center at the same time. (Certainly there may be a moral duty to help a fellow patron in need, but there is not a legal duty to do so absent a special relationship such as parent–child.) If the trainer does not provide proper spotting during an exercise, the trainer has breached his or her duty to his client. If the client is injured as a direct result of the breach—which often happens when heavy weights are lifted without proper spotting—then the client will likely have a successful lawsuit for negligence against the personal trainer. The courts would examine the situation, the expected standard of care, the extent of the injury, and the result of the injury (e.g., medical bills or lost time at work) when assessing potential damages.
For example, a trainer could be successfully sued for neglecting to spot a client during a free-weight bench press (omission), or for programming straight-leg sit-ups for a client with known lower-back problems (commission). These actions would likely be found inappropriate as compared to what a reasonable and prudent professional would do in a similar situation.

11. NEGLIGENCE
Gross negligence – an action that demonstrates recklessness or a willful disregard for the safety of others
Contributory negligence – a law preventing a plaintiff from receiving any remuneration if they have played a role in the injury
Comparative negligence – when multiple parties may have caused injuries, the court will apportion guilt and any subsequent award for damages
Vicarious liability – employers are responsible for the actions of their employees; an injured party sues not only the employee but also the employer(s)

12. NEGLIGENCE
To substantiate a charge of negligence in court, the plaintiff must establish four elements:
The defendant had a duty to protect the plaintiff from injury
The defendant failed to uphold the standard of care necessary to perform that duty
Damage or injury to the plaintiff occurred
This damage or injury was caused by the defendant’s breach of duty (proximate causation)

13. AGREEMENTS TO PARTICIPATE
Designed to protect the trainer from a client claiming to be unaware of the potential risks of physical activity
Details the nature of the activity, the potential risks to be encountered, and the expected behaviors of the participant
Demonstrates the client was made aware of the “normal” outcomes of certain types of physical activity and willingly assumed the risks of participation
Typically utilized for “class” settings (e.g., boot camp) rather than individualized personal-training situations
Typically are incorporated into other documents such as informed consents or waivers
May request or require that participants consult with a doctor prior to beginning an exercise program

14. INFORMED CONSENT
Primarily intended to communicate the potential benefits and dangers of the program or exercise testing procedures to the client
Should detail the possible discomforts involved and potential alternatives
Demonstrates that a client acknowledges they have been specifically informed about these risks
This form, combined with verbal communication, prepares the client for the positive and negative effects of certain types of exercise.
Before a personal trainer begins using any of these documents, it is critical that legal counsel specializing in health and fitness in the personal trainer’s state be consulted.

15. INHERENT RISKS
Risks that can occur through normal participation in the stated activity
Agreements to participate and informed consent forms primarily cover the inherent risks of participation in an activity.
It is difficult to determine an inherent risk of participation and what might have been caused, in whole or in part, by the actions of the personal trainer.
Personal trainers should have all clients sign a waiver prior to beginning any exercise routine:
Waiver (or release) will typically incorporate similar language included in an agreement to participate and an informed consent form.
Includes an exculpatory clause that bars clients from seeking damages for injuries caused by the inherent risk of activities and by the ordinary negligence of the personal trainer and his or her employees and agents.
The documents presented in this chapter have been prepared to serve as a guide to improve understanding. Personal trainers should not assume that they will provide adequate protection in the event of a lawsuit. Please see a local attorney before creating, distributing, and collecting any agreements to participate, informed consent forms, or waivers.
A client may claim that a personal trainer did not provide proper spotting during an exercise and that this action specifically caused an injury. The trainer might counter that an injury was unfortunate, but part of the normal, safe lifting process. This dispute would likely be settled in court. To potentially avoid this type of a scenario, personal trainers should have all clients sign a waiver prior to beginning any exercise routine.
For instance, even if proper stretching and lifting techniques are utilized, injuries can occur to ligaments, tendons, muscles, and other parts of the body. An agreement to participate and an informed consent form would help to protect the personal trainer in the event that a lawsuit is filed by an injured client.

16. PROCEDURES
Personal trainers should utilize paperwork to notify new clients of all risks and potential dangers.
Agreements to participate, informed consent forms, and waivers must be administered properly to clients:
Allow the client sufficient time to read, understand, and ask questions about the document, perhaps in advance.
If the document is multiple pages, provide a space for the client to initial each page.
A minor cannot legally sign a contract; some states allow a parent to sign.
Each member of a family should sign an individual waiver.
Once the documents have been signed, the retain the paperwork on file.
Though some states permit group waivers that have a list of spaces for multiple patrons to sign below the waiver, it is advisable to have a stand-alone document for each client.

17. LEGAL RESPONSIBILITIES: FACILITIES
Personal trainers have an obligation to ensure that the physical environment (fitness center, home, outdoors) is free from unreasonable hazards.
A personal trainer should inspect the following to ensure:
The floor surface is appropriate for the selected activity
Sufficient free space is available to protect the client from other patrons or equipment
Sufficient lighting
Functional heating and air conditioning systems or appropriate weather conditions
Proximity to drinking fountains and bathrooms
Working with clients in their homes can pose potential safety problems. Often, the client may be reluctant to alter the environment or change the overall décor. Though this type of situation may shift some or all of the responsibility for safety from the trainer to the client, an attorney should always be consulted in these instances.
Another consideration for training is the use of public spaces, especially the outdoors. In some jurisdictions it is illegal to train clients on public beaches, parks, or trails. It is the trainer’s responsibility to know the local laws prior to using these areas. Once a “legal” outdoor area has been identified and selected for a training session, the trainer should be sure to understand the potential dangers of the area before meeting the client. Outdoor areas pose specific risks. Running on a public street may involve evading oncoming vehicular traffic, while running on a mountain trail could involve dodging loose rocks or tree roots. Training outdoors certainly can be an enjoyable experience, but it is the trainer’s responsibility to ensure that the activities will not pose a significant risk for clients.
Some trainers use fitness centers without informing the management that there will be a training session. This is certainly not an ethical business practice, and in many areas is a violation of the law. In addition to adhering to the law and using good ethical behavior, developing a formal relationship with the fitness facility may eventually result in an expanded client base from fitness center referrals.

18. LEGAL RESPONSIBILITIES: EQUIPMENT
All equipment should meet the highest safety and design standards, and be purchased from a reputable manufacturer.
Equipment must be regularly inspected and properly maintained:
If deemed unsafe, immediately remove the equipment from the area.
If removal is not feasible, disable the equipment to prevent further use.
Manufacturers typically provide maintenance schedules for equipment:
Regular maintenance should be logged and records retained for future referral in the event of a lawsuit.
Personal trainers should also note the importance of non-exercise equipment:
Require that proper clothing and shoes be worn by their clients.
If outdoors, the trainer should provide water sufficient for the time, intensity, and temperature during the workout.
In most cases, the use of homemade equipment should be avoided, since designing and manufacturing are not considered part of the “normal” duties of a personal trainer.

19. LEGAL RESPONSIBILITIES: SUPERVISION
Trainers must remember that most personal-training activities require specific supervision for safety purposes:
Never leave a client during a session.
Eliminate any time that a client is not in direct view.
Never leave a client when there is a potential for injury (such as spotting).
With two or more clients, design workouts to alternate between activities (e.g., spotting a client while the other performs stretching or active rest).
Additionally, trainers must adequately plan for any emergencies that may arise:
Review the facility’s emergency plan.
Keep the client’s emergency medical information immediately available.
If training outdoors, check cell phone coverage to ensure that may be reached if necessary.
General supervision – overseeing a group of people (i.e. , group fitness)
Specific supervision – an individual is supervised while performing a specific activity (i.e., personal-training session)
Proper supervision involves not only clients, but also employees. Personal trainers need to be aware of the actions of their employees. This awareness includes properly screening potential employees prior to hiring them. It is the responsibility of an employer to determine if the potential employee would pose a specific danger to clients due to his or her past history. Each employee should be trained regarding the unique aspects of the employer’s operation and then supervised and retrained at regular intervals. Employers should conduct written performance evaluations with each of their employees and should retain those files even after an employee has stopped working for the employer.

20. LEGAL RESPONSIBILITIES: INSTRUCTION
Personal trainers should utilize instructional techniques that are consistent with current professional practices:
Legal standards require that clients be given “adequate and proper” instruction before and during an activity.
Avoid high-risk exercises, or those not recommended by peers.
Advocating dangerous or controversial exercises puts the trainer at risk if a client is injured.
Proper instruction also means individualizing workout routines for each client.
Trainers should insist on proper use of equipment and correct completion of activities at all times.
Trainers should demonstrate proper instruction by always using good technique during their own workouts.
A relatively new aspect of instructional liability concerns the physical touching of clients. Trainers should avoid touching clients unless it is essential for proper instruction. Clients should be informed about the purpose of potential touching before it occurs. If a client objects, an alternative exercise should be utilized. Charges of sexual assault, even if groundless, can have disastrous consequences for a personal trainer’s career.

21. ADDITIONAL SAFETY GUIDELINES
Be sure that all sessions are well-planned, appropriate, and documented.
Communicate and enforce all safety rules for equipment use.
Ensure that equipment meets or exceeds all industry standards.
Inspect all equipment prior to use and document adherence to maintenance schedules.
Never allow unsupervised activity by the client.
Limit participation to those under contract (i.e., no friends or family members).
Clearly warn clients about the specific risks of planned activities.
Only select activities within the defined scope of practice and appropriate areas of expertise.
Ensure that clients wear any necessary protective equipment.
Review the emergency plan (access to a phone and for emergency medical services).
Stay up-to-date with certifications and education in the field.

22. What can you do to improve these practices in your business?
SAFETY GUIDELINES
After reviewing the list of additional safety guidelines, do you take all of those steps to ensure the safety of your clients?
If not, why not?
What can you do to improve these practices in your business?

23. SCOPE OF PRACTICE
Trainers must always stay within their scope of practice and recognize situations in which they do not have the necessary expertise:
Never attempt to administer an exercise test without proper training.
Do not provide advice unless a trainer has specific medical or nutritional training and holds professional licenses, credentials, or certifications (e.g., M.D. or R.D.).
Use caution when providing professional advice or a personal opinion that could be taken as professional advice.
Use caution when giving recommendations about equipment, clothing, or shoes.
A trainer should never state, or imitate, that they support their client’s use of supplements, steroids, and growth hormone.
A trainer should be aware of and follow the exercise program guidelines and position statements by leading professional organizations:
ACE, NSCA, ACOG, ACSM, and AHA
American Council on Exercise (ACE)
National Strength and Conditioning Association (NSCA)
American College of Obstetricians and Gynecologists (ACOG)
American College of Sports Medicine (ACSM)
American Heart Association (AHA)

24. Professional liability insurance:
It is the personal trainer’s responsibility to investigate insurance carriers and coverage prior to beginning training sessions.
Professional liability insurance:
Covers personal injuries that can occur as a result of a training session
Product liability insurance:
Designed to cover a trainer in the event a product fails to perform properly
Every policy should covers the trainer while working in various locations (e.g., fitness center, personal home, client’s home, and outdoors).
The American Council on Exercise has established relationships with reputable insurance carriers who specialize in the fitness industry. Visit for more information.
An umbrella liability policy provides added coverage for all of the other insurance (e.g., auto, home, and professional liability) that a person may have in place.
Personal trainers who form partnerships or corporations may wish to investigate the purchase of keyman insurance. A keyman insurance policy is designed to compensate the business for the loss of a person who performs a unique and valuable function. If a business will experience significant financial trouble if one person has an extended illness or dies, keyman insurance should be purchased. Keyman insurance pays a specified amount to assist the business in its recovery from losing a critical human resource.

25. OTHER BUSINESS CONCERNS WITH LEGAL IMPLICATIONS
Marketing activities:
Associate with facilities that maintain high legal and ethical standards.
A trainer’s business is related to reputation; avoid being “guilty by association.”
Intellectual property:
Be aware of copyright violations in regards to music or television broadcasts.
Trainers may seek copyright or trademark protection for their own work, such as routines, books, or a company name or slogan.
Transportation:
Automobile policies may not cover injuries sustained by clients in the vehicle.
Financing:
Read and understand the fine print of any loan prior to signing and consult with an attorney.

26. RISK MANAGEMENT
Most authorities recommend a protocol that consists of the following steps:
Risk identification – instruction, supervision, facilities, equipment, contracts, and business structure
Risk evaluation – review each risk, the probability of occurrence, and conceivable severity
Select the approach for managing risk:
Avoidance: Eliminate the activity
Transfer: Move the risk to waivers, insurance policies, etc.
Reduction: Modify the risks by removing part of the activity
Retention: Retain the risk; especially if the risk would eliminate a potential benefit (e.g., no risk without exercise; no benefit either)
Implementation: Institute the plan
Evaluation: Continually assess the outcome of risk-management endeavors
Personal trainers should constantly search for methods to make the environment safer for their clients. Periodically reviewing programs, facilities, and equipment to evaluate potential dangers allows the personal trainer to decide the best way to reduce potentially costly injuries in each situation.

27. A personal trainer: SUMMARY
Must always consider various legal and business concerns in additional to providing quality personalized fitness instruction
Must always be aware of scope of practice and the expected standard of care that should be provided
Should seek the guidance of qualified attorneys who specialize in the fitness industry
Should establish a proper business structure, understand and utilize contracts, know the changing nature of their legal responsibilities, secure proper insurance, and implement a comprehensive risk-management plan
Create a safe and enjoyable environment for clients