By: David Hardy, former President of Fitness Industry Council of Canada (FIC)
It is a special calling and a privilege to participate in the athletic club industry, as we impact people’s lives in a positive way each and every day. We also have the potential and opportunity that no other businesses have, which is to reverse the rising tide of obesity and inactivity that is sweeping across our nation. FIC members should strive to be the leaders in a unified front to provide quality clubs and demonstrate ethical business practices. FIC members should be credible to consumers, the media, regulatory agencies, the medical community, and the business world. We must also interact with each other in an honourable way, while living in a competitive club environment. This publication, FIC’s Guide to Club Membership & Conduct, was revised to provide your club with information and tools to accomplish this.
These standards were developed in order to provide users with a relatively safe environment in which every physical activity, or program, is conducted in an appropriate manner. Several of these standards are followed by recommendations that club operators may want to consider. This document is not intended to create new laws, and is not a substitute for local, provincial/territorial or federal law, which always takes precedence. Check with the appropriate legal agency, or consult with an attorney about any legal questions.
Membership compliance is based on the honour system. Each FIC member has the responsibility to abide by the code of conduct, standards and bylaws. The brand of an FIC club should be synonymous with the values of treating all members and prospective members with honesty and integrity; offering a facility that is well-maintained and clean; providing programs and classes that are safe and professional; and developing a qualified staff that can meet or exceed the needs of the members. We hope the information contained in this guide will be helpful toward attaining that end.
FIC is dedicated to creating a healthier and more active country through the promotion of physical activity as a solution to Canada’s growing inactivity crisis. FIC fairly represents the voice of the Canadian Fitness Industry while partnering with government, media and other organizational bodies in pursuit of a more active and healthy Canada.
The association has assumed the responsibility to provide the industry with a continual flow of information relating to the power of regular exercise to improve health, prevent disease, and enhance Canadian citizen’s quality of life.
FIC has assumed the responsibility to communicate (to the media and policymakers) the contribution that the fitness and athletic club industry makes to the nation’s health. The association lobbies directly and through its members for pro-fitness legislation such as the federal Children’s Fitness Tax Credit and FIC’s: Adult and No Age Limit Fitness Tax Credit Campaign; federally, provincially and territorially. FIC also assumes the responsibility to communicate (to the financial media) the growth and progress of the industry in terms of members, revenues, and earnings.
Across Canada, government(s) are continually considering legislation, taxes and regulations that would affect our industry. FIC has assumed the responsibility to protect the industry from harmful legislation, regulations, and additional tax burdens. FIC has also assumed the responsibility to protect taxpaying fitness facilities from tax-exempt competitors that replicate fitness facilities in middle and upper middle-class neighborhoods rather than providing such centres for disadvantaged populations. Occasionally, there are conflicts between taxpaying fitness operators. FIC has neither the resources nor the skills to resolve such conflicts. The absence of certain basic investigatory tools, such as subpoena authority and the ability to examine witnesses under oath, would be a significant impediment to an effective investigation. In addition, an association that wishes to enforce standards of conduct faces potential legal challenges and potential liability, including allegations of antitrust activity as well as defamation. For these and other reasons, FIC cannot effectively resolve conflicts between its member clubs.
FIC was federally incorporated on November 8, 2005 under the Canada Corporations Act. FIC is a not-for-profit trade association, exempt from income taxes. Bruce Geiger, a lawyer with the firm of Miller Thomson LLP helped to draft the association by-laws.
FIC was formed with 3 primary objectives:
Fitness Industry Council of Canada (FIC) represents the voice of fitness facility operators across Canada. Representing over 6,000 facilities with over 6 million members nationwide, FIC pursues a legislative agenda in the hope of bettering the fitness industry for both consumers and operators.
FIC is not a training or trade show organization, but rather FIC works with industry partners to solidify the voice of the Canadian Fitness Industry as a solution to Canada’s growing obesity epidemic.
As a member of FIC, I agree to operate my club(s) in the best interest of the consumer and the industry by:
Due to their length, FIC’s bylaws have not been included in this publication. To obtain a copy of FIC’s bylaws, please contact FIC via email or via telephone at: (866) 402 – FICC (3422).
Each member has the responsibility to abide by the association’s membership standards, code of conduct, and bylaws. None of these, however, are intended to create new laws or substitute for local, provincial/territorial, or federal laws, which will always take precedence. FIC will assist as much as possible in interpreting these standards, but club operators are responsible for ensuring their own compliance with local, provincial/territorial, and laws, and should consult an attorney licensed to practice in their province/territory about any legal questions.
The club will open its membership to persons of all races, creeds, places of national origin, religions and sexual orientations and physical abilities.
Interpretation: This standard sets a minimum level of conduct, and does not supersede local, provincial/territorial or federal discrimination laws. To view Canada’s Charter of Rights and Freedoms please, click here.
The club will respond to and endeavour to resolve, within 60 days, any consumer complaints made to the Better Business Bureau or to provincial/territorial or local consumer protection agencies (or other such agencies).
Interpretation: This standard requires clubs to both respond to consumer complaints made through third-party agencies and to endeavour to resolve such complaints. FIC recognizes that, occasionally, consumers complain about circumstances that cannot—and perhaps, should not—be resolved. FIC clubs should respond directly and promptly to complaints made by their members.
The application of this standard will take into account the specific nature of the complaint, whether the complaint has been resolved, and/or whether it is part of a pattern or practice of illegal or unethical behavior.
The club will comply with all relevant laws concerning pre-sell membership fees.
Interpretation: This standard applies to clubs that are in the process of being built and are not yet open, as well as to operating clubs that are building another club which is not yet open. For the purposes of this standard, the term “pre-sell membership fees” means any monies collected from members before a club is operational, including initiation fees and dues. A club can generally be considered “operational” when its major facilities are open and available for use. Most provinces/territories regulate pre-opening sales and advance deposits by members, so clubs should be familiar with requirements specific to their province/territory. Club operators whose facilities are located in a province/territory which does not regulate pre-sell monies may still opt to put those funds in a separate fund for the protection of their members.
The club will not sell prepaid lifetime memberships, and membership length and renewal is according the law in the specific Province or Territory.
Interpretation: This standard prohibits clubs from selling new memberships, or memberships to existing members, with a one-time, up-front fee in exchange for lifetime, unlimited use of the club. For the purposes of this standard, the term “lifetime” specifically refers to the individual member’s lifetime, and should not be construed to mean the length of time the club is in operation. Clubs may be obligated to continue to honour such contracts that have already been sold, or that existed when the club was purchased. An attorney can advise clubs of their responsibility in this area. Membership length and renewal shall comply with laws of the specific province or territory.
The club will not engage in illegal or unethical membership sales tactics.
Interpretation: This standard strictly and narrowly applies to illegal or unethical actions which may negatively impact competitors and/or grow a club’s own membership. That being said, FIC urges its member club operators to conduct themselves in an honourable way within the competitive environment, keeping in mind that the customer has a watchful eye and that negative or deceptive advertisements or activities detract from the reputation of all clubs in the community and the industry as a whole.
The club will conform to all relevant laws, regulations, and governmental standards.
Interpretation: This standard requires clubs to comply with all local, provincial/territorial and federal laws and regulations governing employment, membership contracts, safety, etc. FIC will do its best to notify members of key provincial/territorial and federal, new and changed industry-specific laws; however, it is the responsibility of the club operator to adhere to all requirements on all levels.
The club will respond in a timely manner to any reasonably foreseeable emergency event that threatens or potentially threatens the health and safety of its patrons. Toward this end, the club will have an appropriate emergency plan that can be executed by qualified personnel in a timely manner.
Interpretation: This standard is designed to provide clubs with a benchmark that can be employed to ensure members’ safety. The key to successfully utilizing it is to understand how to provide the three critical components: (1) a timely response; (2) an appropriate plan; and (3) qualified personnel.
Clubs should have at least one person scheduled to be on site during all hours of operation who is certified in cardiopulmonary resuscitation (CPR) by the Canadian Red Cross, the Canadian Heart & Stroke Foundation, or an equivalent organization. Note: Clubs which provide 24 hour access for patrons and members are not required to have a certified CPR trained individual on the premises if the facility is unstaffed. As patrons and members of these facilities must first sign a waiver acknowledging the fact that they are willing to assume this risk.
The club will offer each adult member a pre-activity screening appropriate to the physical activities to be performed by the member.
Interpretation: This standard requires clubs to offer a pre-activity screening device to adult members that will allow adult members to determine whether they have medical conditions or risk factors that would require particular actions to be taken (e.g., physician approval, fitness testing, program modification) before they would be permitted to engage in physical activity.
Clubs shall comply with this standard by including a pre-activity screening device, such as the PAR-Q, with each new member’s contract or membership agreement and as part of the membership renewal procedure. Alternately, clubs shall post the pre-activity screening device in appropriate areas of the club, and/or have copies available for members to read prior to participating in an activity.
Each person who has supervisory responsibility for a physical activity program or area at the club will have demonstrable professional competence in that physical activity program or area.
Interpretation: The principal objective of this standard is to ensure that FIC facilities provide credible and professional supervision of all physical activity programs and areas. In order to successfully implement it, club operators need to understand exactly what constitutes “supervisory responsibility,” and what is meant by “demonstrable professional competence.”
In general, what is implied by supervisory responsibility is accountability for one or more of the following components: program scheduling, content and execution of content, program staffing and training, and the space in which programming takes place.
“The requirement relating to demonstrable professional competence suggests a combination of educational and professional experience that would be accepted—by both the industry and the public at large—as representing a relatively high level of competence and credibility.”
The club will post appropriate signage alerting patrons to risks involved in their use of those areas of the club that may present increased risk(s).
Interpretation: The intent of this standard is twofold: (1) to assure that FIC facilities address basic safety issues, in part through responsible signage; and (2) to comply, to the best of their knowledge, with local and provincial/territorial codes and laws regarding signage. Appropriate signage, especially in “wet” areas of the club, can greatly reduce a club’s liability in the event of an injury to a patron.
A club that offers youth services or programs will provide appropriate supervision.
Interpretation: This standard has three primary goals: (1) It aims to make each young person’s club experience both a safe and enjoyable one. (2) It reassures the parents of these children that the club has instituted policies and enforces practices that ensure their offspring’s safety.
(3) It suggests guidelines that allow clubs to operate more efficiently. Individuals hired to oversee children at the club should be carefully screened, appropriately accredited, thoroughly trained, and closely supervised. Background checks, including police inquiries, are appropriate. At least one individual certified in CPR and first aid should be scheduled to be on site at all times when children are present.
Club policy should clearly identify—and place off-limits—any club areas, equipment or activities that might pose a hazard to youngsters—e.g. saunas, whirlpools, aerobics studios, fitness floors, etc.
The club will be kept clean and equipment will be maintained in working order.
Interpretation: The club should ensure cleanliness in all areas through regularly scheduled cleanings with appropriate substances. Any equipment known to be malfunctioning should be repaired or replaced within a reasonable period of time. Signs should be posted on or near any equipment that, due to its malfunctioning, poses a risk of injury to club patrons.
Questions have been raised about the effectiveness of FIC’s standards in regulating member conduct and about the role of FIC in the enforcement process. Specifically, there is a concern that the complaint procedure is being used as a competitive tactic rather than a means to ensure the industry abides by best practices. Also, FIC is finding that its role as an investigator is placing the association in the middle of commercial disputes between members, and the lack of effective investigatory authority makes rendering a fair decision difficult. In light of these issues, FIC’s legal counsel has recommended that the association adopt an approach whereby it disciplines a member club only if there has been an adverse finding by a recognized enforcement body, such as a court of law or governmental regulatory agency. This course of action can avoid most if not all of the problems and potential liability associated with the investigation and enforcement of standards for member conduct. The association, in effect, allows the court or other enforcement body to take on the burden of the investigation and the making of findings.
In fact, the experience of FIC is not unusual; the divide between the theory and the reality of enforceable association membership standards can be wide. Members of associations often view an association’s disciplinary process as a viable method of conducting competitive warfare, and one that is quicker and less expensive than litigation. In addition, the absence of certain basic investigatory tools, such as subpoena authority and the ability to examine witnesses under oath, can be a significant impediment to an effective investigation.
An association that wishes to enforce standards of conduct faces potential legal challenges and potential liability. One of the most common sources of allegations is antitrust law. For example, a member against whom charges are alleged may assert that the complainant and the association are conspiring to harm the respondent. This can be a particularly compelling claim if the complainant is a direct competitor of the respondent.
Defamation is another common cause of action in disciplinary proceedings. To say that a company has violated membership rules can be damaging to the reputation of the respondent, especially if competitors publicize the fact that the company is being investigated or has been disciplined. In fact, the respondent may feel compelled to bring a defamation action in order to protect its reputation.
In addition, the disciplinary process itself presents a number of opportunities for legal challenge, including lack of due process. An FIC member club operator wishing to resolve a complaint against another FIC member club should take the following steps before FIC can get involved:
Once legal authorities become involved, FIC must step aside. Legal action shall immediately halt FIC’s participation in the dispute resolution process.
FIC’s Membership/Standards Committee (the “Committee”) is a standing committee with the responsibility of reviewing allegations of member noncompliance and taking appropriate disciplinary action, when appropriate. The Committee’s purpose is to ensure compliance with the association’s bylaws and membership standards. The Committee shall consist of at least 2 board members, annually appointed by the president. The chairperson of the Committee or his or her appointee will serve as chairperson.
If necessary, the Executive Director and/or director of operations shall request additional information. FIC cannot investigate a formal complaint while litigation is pending when substantially the same issues are being raised in the complaint.