Sexual harassment, injury and disability, overlord clause beware of these "pits" in the gym

   Sexual harassment and verbal insults should only be regarded as "mouth addiction"

   On April 9, it was reported by the media that Ms. Xiaoqian of Hangzhou paid a deposit for private lessons in a gym. Afterwards, she felt that the price was too expensive and wanted to return it. In order to retain her, the fitness instructor proposed the conditions of accompanying sleep. Xiao Qian told the media: "I said that I can find their coach or him to sleep with me for one night, and that if I need a woman, they can also provide a woman, saying that their director is a lesbian, so that their director can sleep with me for one night." When asked, a supervisor of the fitness center said that the social atmosphere was more open, but it was just a mouth addiction.

   Prior to this, Ms. Zhang, a citizen of Nanjing, was inexplicably "helped" by a fitness instructor while running in the gym. She felt harassed and called the police station. Finally, the gym apologized to him and refunded the card fee in full.

   Article 38 of China’s Constitution stipulates that the personal dignity of People’s Republic of China (PRC) citizens is inviolable, and it is forbidden to insult or slander citizens by any means. Article 40 of the Law on the Protection of Women’s Rights and Interests stipulates that sexual harassment of women is prohibited. Article 38 of the Beijing Measures for Implementing the Law on the Protection of Women’s Rights and Interests in People’s Republic of China (PRC) (Revised Draft) stipulates that it is forbidden to sexually harass women in any form such as language, writing, images, electronic information and physical behavior. The Measures for Implementing the Law on the Protection of Women’s Rights and Interests in People’s Republic of China (PRC) Province stipulates that "it is forbidden to sexually harass women in the form of obscene language, words, pictures, electronic information and behaviors that violate laws and ethics."

   The coach put forward a clear demand for small money, which caused him to have obvious psychological discomfort and constituted sexual harassment. According to the law, if sexual harassment of women in violation of the law constitutes a violation of public security management, the victim may request the public security organ to impose administrative punishment on the illegal act according to law, or bring a civil lawsuit to the people’s court according to law.

   Injuries and disabilities are not uncommon. The qualification review of coaches needs to be standardized.

   In recent years, a large number of newcomers have poured into the field of fitness, but there is a lack of professional private education, and disability incidents are frequent due to improper or unprofessional guidance.

   In July, 2014, Zhang Wanting, a 17-year-old girl from Shenyang, died suddenly in a gym weight-loss training camp. According to media reports, Zhang Wanting had undergone high-load training and was strictly controlled in diet, and the coach at the time of the incident had no relevant qualifications and first-aid knowledge.

   In 2015, a fat man accidentally fell down and broke his achilles tendon because of bending over and lifting his legs, which was not suitable for his weight load. At that time, private teachers and members were still laughing and chatting, thinking that there was no serious problem.

   In 2016, Pearl Krabs, a second-year graduate student in Beijing, bought 4,500 yuan of private education courses in a fitness chain. Three months later, the hospital diagnosed the second degree damage of the posterior horn of the medial meniscus of the right knee; Previously, Pearl Krabs’s coach had been encouraging her to keep exercising. When defending rights, the coach could not produce any professional certification. Finally, the gym returned 4,000 yuan to Pearl Krabs and dismissed the coach.

   It is understood that there are roughly three types of private education sources in the industry: graduates from major sports colleges, retired athletes and social fitness enthusiasts. Even some are just in good shape, and they can be employed after attending some short-term training courses. There is no uniform standard for the post qualification of private education in the whole fitness industry, and the threshold for employment is completely grasped by the fitness institutions themselves.

   According to the 2015 Career Development Report of Fitness Coaches in China issued by the Vocational Skills Appraisal and Guidance Center of the State General Administration of Sport, 52% of the fitness coaches who have been employed for 1-3 years are students from sports colleges, and the remaining 48% have no professional background.

   At present, there are two types of qualification certificates recognized by the fitness industry, one is the "national job certificate". The other is the qualification certificate certified by non-governmental organizations, or the award-winning certificate of bodybuilding competition. Among them, the "national job certificate" belongs to the level evaluation category and is not mandatory. Just because a fitness instructor wants to be employed does not mean that he must pass the national vocational examination and obtain a "national vocational certificate".

   Lu Dajiang, a graduate tutor at the School of Sports Science of Shanghai Institute of Physical Education, suggested that the admission system for fitness instructors should be established with reference to the supervision methods of high-risk industries such as swimming and rock climbing. The relevant coach qualifications are subject to the access system, that is, the personnel engaged in guiding teaching must obtain the national vocational qualification certificate before they can take up their posts and engage in related work.

   Article 32 of the National Fitness Regulations stipulates that those who engage in high-risk sports must have a specified number of social sports instructors and rescuers who have obtained national vocational qualification certificates. The first batch of high-risk sports announced by the state in 2013 include swimming, skiing, rock climbing and diving.

   Fitness institutions have overlord clauses, and it is difficult for consumers to transfer or return their cards.

   At present, many fitness cards on the market require me to hold the card. If consumers require to pay a handling fee ranging from several hundred yuan, some gyms even stipulate that they cannot transfer cards.

   Jiang Dianliang, a southern legal aid lawyer, said that because the consumer card generally indicates that "this card is not transferable", if the consumer does not sign the relevant agreement on returning, transferring and stopping the card before handling the card, when he gets the card, he has already acquiesced that the merchant needs to pay for the card transfer. Before handling various consumer cards such as fitness cards, you need to read the relevant agreements carefully, ask whether the fitness card can be extended or transferred or returned in case of illness, business trip, etc., and sign the relevant payment agreement for returning, transferring and stopping the card. When signing the relevant consumer card agreement, in order to protect your legitimate rights and interests, you must read the terms carefully. If you find anything unclear or unreasonable in the terms, you should raise it in time.

   In addition to high transfer fees and prohibition of card transfer, it is also difficult for many consumers to return the card.

   In December 2016, consumer Mr. Chen complained to Hebei Consumers Association that in September 2015, he applied for an annual card with an amount of 2,300 yuan in a gym in Shijiazhuang. Since then, Mr. Chen has been suffering from illness and needs chemotherapy. The doctor’s advice is not suitable for exercise. The previous annual card was not used, and Mr. Chen proposed to return the card to the gym. The other party refused to refund the money on the grounds that there are clauses in the contract, such as "The contract shall not be terminated except for force majeure" and "The service cannot be accepted due to its own reasons, and the individual shall bear the responsibility".

   Hebei Consumers Association believes that after the establishment of the contract, the objective situation has undergone major changes that are not commercial risks and cannot be foreseen by the parties at the time of conclusion of the contract. It is obviously unfair for one party to continue to perform the contract or the purpose of the contract cannot be achieved. If the consumer proposes to change or terminate the contract, the operator should change or terminate the contract accordingly according to the principle of fairness. It is illegal for the operator not to change or cancel the conformity. In other words, consumers have the right to terminate the contract according to law in special circumstances.