Fitness Clubs: Consumer Protection between Contract and Association

Abstract

During the last decade fitness has become the most popular sport in Germany and many other countries. Whereas sport was traditionally organised within the public sector, people today willingly exchange their sovereignty as a voter, tax payer, or club member for sovereignty as a consumer of fitness services. 'Health Clubs', 'Sports Studios', or 'Fitness Gyms' usually use the term 'Membership' in their customer contracts. In legal terms, however, health clubs are just ordinary businesses offering standard form contracts to individual customers, which usually enter into the contract for a private, non-commercial purpose. It follows that the fitness studio contract is subject to various consumer protection regulations, such as Sections 1812.80 ff. of the Civil Code of California, or the European Unfair Contract Terms Directive. However, the underlying economic rationale of the fitness club is not met in cases where the respective contractual arrangements are treated simply like any other business-to-consumer standard form contract. In this paper, I will forward the argument that the formal legal structure of fitness clubs is misguiding in a similar way, as is the case with corporate groups, just-in-time networks, or franchise systems. In contrast to the 'privity of contract'-dogma the very idea of the fitness club is about creating a community by means of networked contracts. After explaining the hybrid nature of the fitness club as a third model which goes beyond the traditional alternatives of sports associations and pay-per-visit facilities, I shall introduce and compare the US and European approaches to the regulation of fitness clubs, in order to show that both, in their aim to protect the individual consumer, tend to neglect the networked structure of the relevant contracts, although the European approach, with its inherent flexibility, could easily take the network rationale into account in the future.