Advice on Non-Compete Agreement

Off Topic
1

Hey, everyone. I’ve recently been offered a job as a personal trainer at a popular 24 hr gym. They want me to sign a non-compete agreement. Some of the clauses within the agreement make it sound like I’d be hosed if for any reason this particular gym doesn’t work out and I seek to train at any other gym within a 20 mile radius.

The clause reads as follows:

a. If the business relationship or employment, if applicable of trainer is terminated by owner for any reason, or on its expiration, then trainer shall not, for a period of 2 years commencing on the effective date of expiration or termination:

         i. Have any direct or indirect ownership interest, including as a partner or share holder, or be a directer, officer, consultant, representative or agent in any other capacity in any competitive business within 20 miles of owners business.
        
         ii. Perform services as a trainer, director, officer, manager, employee, consultant, agent or otherwise for any competitive business in any part of the restricted area.

So, If I quit, or am fired for any reason, they’re telling me I couldn’t train, or even scrub toilets for that matter, in any fitness center within a 20 mile radius for a period of 2 years?

These terms seem egregious to me. This is in a town that has many a lot of gyms. The hours that they’re able to provide me right away aren’t near enough to allow me to quit my full time job. I’d guess that with signing this agreement as it sits right now, I wouldn’t be able to subsidize my income by training at another gym, either?

Do any of the PT’s here have any experience negotiating the terms of an agreement like this? As it sits now, I don’t feel comfortable signing it. Any recommendations you make for me?

Thank you very much!!!

2

I’m not a PT but have been around a lot of friends recently signing non-competes. 20 miles seems silly for a gym. I don’t see many people traveling that far to see a PT. I would ask for previous and current trainers contact info and do some work checking up on the owner to see how he treats you all. Always remember you have all the negotiating power at this point since you can just walk away.

This contract seems to me to say that if you decide to leave this gym you will have to move out of town to work.

3

IANAL, but as an employer I deal with a lot of these (as I hire people away from my competitors who have non-competes in place.)

First, depending on your state, the courts may take a dim view of non-competes.

They are expensive to enforce and the courts in my state are known to throw out the more punitive provisions (eg: fines and penalties over and above training and salary expenses.)

If it were me I wouldn’t sign it, but if you must sign it and subsequently leave, don’t be an ass and tell your employer where you’re going.

4

That one sounds way too generic to be enforceable. If, however, they invest money for training you in trade specific proprietary knowledge or technique, you may be responsible for repaying the cost of it and have to double dog promise not to use it.

It is very difficult to prove or enforce most of that though, and to get anything more than the satisfaction of tying you up in a loser of a lawsuit, they have to prove damages in order to be made whole.

5

[quote]Dr. Pangloss wrote:
IANAL, but as an employer I deal with a lot of these (as I hire people away from my competitors who have non-competes in place.)

First, depending on your state, the courts may take a dim view of non-competes.

They are expensive to enforce and the courts in my state are known to throw out the more punitive provisions (eg: fines and penalties over and above training and salary expenses.)

If it were me I wouldn’t sign it, but if you must sign it and subsequently leave, don’t be an ass and tell your employer where you’re going. [/quote]

100% agree with this.

Yeah, non-competes don’t hold much water in a court room. I remember a few years ago a bunch of dentists in my area revolted against outrageous non-competes saying they were unconstitutional.

6

Thank you for your replies! So far everyone I’ve talked to has said “don’t sign that.” I’m in TN, I’m not sure how my state views non-competes in general.

Now, I completely understand the companies reasons for implementing a non-compete. Most of the terms I’d feel fine agreeing to. I’m not going to try and steal their clients away from them If I were to leave. Though, If they feel I’m a shitty trainer and they fire me in a week, I wouldn’t be able to try my hand elsewhere for two years? A man has gotta eat!

Now, I have the option of walking away from the opportunity. Though, I run into the possibility of this being a fairly standard agreement at most health clubs and I’d run into the same problems elsewhere. I’m definitely curious to know if any of the PT’s have run into this.

Thanks again, everyone!

7

[quote]Chip Duglass wrote:
Thank you for your replies! So far everyone I’ve talked to has said “don’t sign that.” I’m in TN, I’m not sure how my state views non-competes in general.

Now, I completely understand the companies reasons for implementing a non-compete. Most of the terms I’d feel fine agreeing to. I’m not going to try and steal their clients away from them If I were to leave. Though, If they feel I’m a shitty trainer and they fire me in a week, I wouldn’t be able to try my hand elsewhere for two years? A man has gotta eat!

Now, I have the option of walking away from the opportunity. Though, I run into the possibility of this being a fairly standard agreement at most health clubs and I’d run into the same problems elsewhere. I’m definitely curious to know if any of the PT’s have run into this.

Thanks again, everyone![/quote]

Free-lancing is much more profitable though you have to have good liability insurance - that usually runs around $200 a year which isn’t bad. Just know most health clubs will frown upon such a thing on their premises. I used to train high school athletes and that was a pretty niche market.

8

Where in TN are you if you don’t mind saying? I’m in Knoxville.

9

[quote]csulli wrote:
Where in TN are you if you don’t mind saying? I’m in Knoxville.[/quote]

Nashville

10

[quote]Chip Duglass wrote:

[quote]csulli wrote:
Where in TN are you if you don’t mind saying? I’m in Knoxville.[/quote]

Nashville
[/quote]
Ah. My gym connections don’t extend that far unfortunately :expressionless:

11

Tough to enforce, you have a right to earn a living, and most courts would view it as, is this guy trying to make a living going to take down that business? The answer is no. I wouldn’t worry about it.

12

Each state has different rules for enforcing non-competes. Some states are friendlier to non-competes than others. Also, “beating” a non-compete in court is a very expensive proposition if you are against an employer with resources who wants to be a dick. I personally wouldn’t sign anything I wasn’t prepared to live with.

13

It my state, Mississippi (as is the case in most states) non-competes are enforced. It comes down to whether or not you need the job. If there are other opportunities, but you want this one, you can try to negotiate a bit on the terms such as time and distance. Courts, as noted by others, don’t like any restraints on the freedom of others so they do interpret these agreements very narrowly. That is, if there are any provisions which are ambiguous they will be viewed in your favor or not enforced. Also, depending on the position and type of work, courts do not like broad time and distance provisions in these types of agreements. Here, they do not seem unreasonably in time and distance in my view.

Also, as noted by others, going to court can be very expensive ( i have been a lawyer for 23 years) and most choose not to go that route. If this is an independent gym you may have some luck with altering the provisions, if it is a large company then I would think not much chance of changing it. Best of luck.

14

[quote]csulli wrote:
Where in TN are you if you don’t mind saying? I’m in Knoxville.[/quote]
Dude Im from Johnson City. Most of my family are still there.

15

I am a recruiter and deal with this crap pretty often. I thought I had something to add, but I agree with all of the above. Its state specific, but most judges rule in favor of people earning a living. The language you quoted is very generic, and likely not enforceable. The real strength of it is the threat, rather than the legalities. People are afraid of courts, so they won’t violate the agreement. Most companies don’t want to deal with courts either, legal fees, bad publicity, etc., so they really hope you’re too afraid or that they can persuade the new company to dismiss you.

However…there is the potential that the position is great, and you’ll never leave. I’d ask them directly if they have ever had to enforce the non-compete, and what happened. No I the likely answer, but you might get some clarification.

Either way, please don’t clog the squat racks with your clients if they really only want to get toned. That’s a real problem in CT.