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I would like to start wearing a shirt to ABCGym stating something to the effect of:

ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option.

My question has two parts. The first is more of legality and definition. The second is more around what could they do.

Can it be construed as libel, solicitation or something else I probably should be aware of? Though it might tarnish the image, assuming those statements are true I believe the criteria for libel would not be met.

To solicitation, they have a broad and basic anti-solicitation policy, including "Any solicitation within any club is absolutely forbidden." While provocative, I don't see that this can be defined as soliciting. Even if I were to list competitors, without me benefitting from any sales that still seems at worst a gray area. Am I misinterpreting soliciting?

As to recourse, sure they can ask me not to wear it. Were I to refuse to remove the shirt, could they bar me from using the membership without refund for doing something that is legal and within dress code, but deemed naughty in their sight?

Edit: Background

I joined XYZ 22 years ago. ABC bought XYZ four years ago. At the time of ABC buying the XYZ, my membership was specifically to location A. It remained so after the purchase and we continued under essentially that agreement (I now pay annual dues to ABC in return for membership to location A).

In late September, ABC accepted annual payment, then announced about five weeks later they were closing "my" gym (location A). It is, IMO, a bit disingenuous at this point to accept payment on an agreement they likely knew they were going to alter. On Nov. 30, they closed location A and transferred me to location B.

As to why it's bothersome, admittedly part of the issue is annoyance with just being told, in effect, "We broke the agreement, and you'll take what we substitute." But more materially it's a matter of:

  1. adding 9-15 minutes travel to every workout;
  2. being more crowded;
  3. more tightly spacing equipment;
  4. less of the equipment I use;
  5. worse condition of the equipment;
  6. fewer "spare" weights; and
  7. smaller open training area.

Two have asked:

Prior to reaching this point, I attempted...

  • a request over their website without response;
  • speaking to a person in the cancellation department. I was directed to the talk to a manager in club;
  • speaking to manager I was forwarded to the GM/Operations Manager;
  • emailing with the GM/OM cited due to the type and history of the account, no refund was possible;
  • a second request over the website without response;
  • calling the membership department. After time on hold the representative relayed the supervisor's statement it wasn't possible because they have another location within 25 miles;
  • Still awaiting a call from said supervisor that was supposed to occur 12/26.

Resolution Before it came to the shirt, inquiry with BBB led ABCGym contacting me and refunding the remainder of my contract. I expect the Yelp review that has been marked as helpful and 1-on-1 discussions with a number of people, they've lost far more in business than the $131 they finally refunded.

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    Where does this take place, please? What country, and if in the US, what state? – David Siegel Dec 26 '18 at 20:04
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    Thanks @JohnSpiegel, that certainly clears up a number of questions from me but my final question is: did you ask for membership cancellation and partial restitution upon the closing date of location A? I would imagine they'd be willing to work with you to achieve this request in good faith (publicity). Most businesses would not choose to automatically do this because it is a bad business decision; gaining new customers is always more expensive than appeasing/keeping existing customers so they would rather perform one action and wait to appease any disgruntled customers. – MonkeyZeus Dec 27 '18 at 19:32
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    Additionally, you claim that they "broke the agreement" but I encourage you to review your latest contract because I am positive that there is a clause in there which allows them to freely do what they did with your membership. – MonkeyZeus Dec 27 '18 at 19:38
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    Just be careful about the "ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed." part especially since you did not ask for restitution. It could easily be construed as libel and slander. – MonkeyZeus Dec 27 '18 at 20:10
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    What are you hoping to gain from being passive-aggressive instead of directly asking them to refund your membership? Your story does not contain any mention of having made such a request, and if you have not requested it, then they certainly have never in any meaningful way "refused" a wish that YOU have so far decided to keep secret from them. – Henning Makholm Dec 27 '18 at 20:53
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The statement

ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option.

could certainly be considered as defamatory. However, in the US and many other countries, truth would be a valid defense, if the person making the statement could prove that the statement is true.

I don't see how it could be construed as solicitation.

If worn on a shirt into ABC, the management could surely ask the wearer to remove it. If that request is refused, they could ask the wearer to leave. If the wearer has a valid membership, then it would depend on the exact terms of the membership contract, and provisions of local law, whether ABC could insist that the wearer leave, or have the wearer arrested for trespass should the wearer refuse. Any regulations incorporated by reference into the contract would also matter.

At least in the US. walking back and forth on a public sidewalk just outside ABC's door, wearing such a shirt or carrying a classic picket sign with such a message would be pretty clearly legal, provided that others are not unduly obstructed, and no valid local ordinance is violated.

In the wear-the-shirt-inside case, if the wearer refuses to remove the shirt or leave, the management would probably call law enforcement. LE will not want to decide whether wearer has the legal right to remain in the club wearing the shirt. They will probably ask the wearer to leave. If the wearer protests that s/he has a valid membership and thus a contractual right to stay, who knows what they would do. If they still ask the wearer to leave, the wearer would be wise to comply and perhaps take legal action to enforce his or her membership rights, which will depend on the contract details as mentioned above. A lawyer would probably be very helpful if the wearer wants to take that route.

The wearer would be wise to remain polite and appear calm, not yelling or using epithets.

  • Thank you, David. All reasonable sounding and around what I had thought. The prospective wearer is not given to yelling and cursing and has the luxury of this being more about a principle than a need. Neither fisticuffs nor incarceration should be called for in this case. :) – John Spiegel Dec 26 '18 at 21:04
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    A contract with a gym doesn't not create a legally enforceable and specifically performable right to occupy the gym in conformance with its rules. In legal terms, the contract gives you a license to use the gym (revocable at will by the gym subject at most to breach of contract money damages) and not a lease of real property. This is similar to the rights of a movie theater or live performance guest. – ohwilleke Dec 26 '18 at 23:54
  • @ohwilleke "doesn't not create" do you mean "does not create"? – David Siegel Dec 27 '18 at 0:10
  • @DavidSiegel I mean "does not create" and jumbled my typing of it. – ohwilleke Dec 27 '18 at 0:27
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    It will depend on the language of the contract, and the decision of a court, in such a case, whether the gym is required to make a refund. The gym might argue that he is able to use the facilities as long as he does not wear the shirt. Any LEO officers could be called as witnesses that the Gym excluded the person and the circumstances of that event. One tactic for preserving a record would be to send a certified letter, the next day to the gym recounting the events. One might also request a police report. – David Siegel Dec 27 '18 at 22:15
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Assuming the claim is true or just expresses an opinion that has no truth value, it is not defamatory. It isn't solicitation under any reasonable understanding of the term. It is somewhat provocative; the question is whether they can deny you admission, under the terms of your contract with them, if you wear the shirt. You would have to inspect that contract. Assuming that your contract is with the Panda gym, there is a clause that says that

The Member hereby agrees to abide by all posted safety guidelines and regulations while using [Sender.Company] facilities and equipment. Additionally, the Member agrees to dress and conduct themselves in a manner deemed appropriate for a fitness facility.

They may post a regulating prohibiting disparaging or otherwise "inappropriate" messages. They can revoke your membership, and as a non-member, call the sheriff to expel you.

  • The statement "ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed." is a statement of purported fact, and might be defamatory IF false. – David Siegel Dec 26 '18 at 20:26
  • Yes, that's why I have the caveat "assuming the claim is true". – user6726 Dec 26 '18 at 20:32
  • My comment was in response to "or just expresses an opinion that has no truth value", because that is pretty clearly not the case. – David Siegel Dec 26 '18 at 20:33
  • The statement about inferiority is pretty clearly an expression of opinion, not verifiable fact. – user6726 Dec 26 '18 at 20:42
  • Thx 6726. Seemed along the lines of what I thought. Understanding without seeing a contract, one can't really speak in absolutes, could they typically revoke without refunding the remainder or is that somehow a one-time transaction and if I became unlikable to them post that transaction they'd owe nothing on the incomplete portion? – John Spiegel Dec 26 '18 at 20:55
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ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option.

Can it be construed as libel, solicitation or something else I probably should be aware of?

You are claiming five things:

  1. ABCGym closed a gym
  2. ABCGym accepted payment for membership to that gym
  3. ABCGym refuses to refund payment
  4. ABCGym has substituted another option
  5. To you, that option is inferior.

The first four are objective claims. The last claim is simply your opinion, and opinions can't be libelous. The fourth item is not derogatory, and so probably does not qualify for libel. So as long as the first three items are true, you have a defense to any libel claim.

To solicitation, they have a broad and basic anti-solicitation policy, including "Any solicitation within any club is absolutely forbidden."

Only with an extremely broad interpretation of "solicitation", for which it would be pretty much impossible to not violate, would this be solicitation. Unless there is more, this is very badly written, as "solicitation" is a transitive verb: you have to solicit something, and they should say what somethings solicitation of is prohibited. In this context, the ordinary interpretation would be soliciting purchases, hiring, donations, or other monetary transactions between the person soliciting and the people being solicited. There is a doctrine that ambiguous terms of a contract are interpreted in favor of the party that did not write them, so even if a judge can imagine some interpretation that would prohibit your conduct, they would be unlikely to consider that the applicable interpretation.

As to recourse, sure they can ask me not to wear it. Were I to refuse to remove the shirt, could they bar me from using the membership without refund for doing something that is legal and within dress code, but deemed naughty in their sight?

Colorado law says that "A person commits the crime of third degree criminal trespass if such person unlawfully enters or remains in or upon premises of another." https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-4-504.html Which is a bit circular: it's illegal to enter if it's unlawful, but when is it unlawful? By selling you a membership, they have consented to you entering. The question then is whether they can rescind that consent. A prosecutor would find it difficult to make a charge stick in such a situation, but the safe course if they insist on you leaving is to document it and sue them.

From a civil point of view, they certainly are not justified in interfering with your exercise of your membership unless the contract allows it, and you could sue for your membership dues and possibly even punitive damages. If you are really ambitious, you could sue right now on the basis that closing the gym location that you preferred materially altered the contract, but that would be a stretch.

  • @Accumulation. Another great response. I would not plan on trespassing. I'm mostly drawing out the lines of what you speak to at the end. If they prefer to end the contract and refund it because they do not wish to allow me on their premises, that's fine. – John Spiegel Dec 27 '18 at 18:46
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    It seems that you're trying to bait them into banning you, but you haven't actually asked for what you want, which is to end the contract and receive a refund (realistically, it seems reasonable for you to pay for the month period between the closure and the point you ask to cancel). You want this outcome, but you're only willing to accept it if they decide to do it to you, rather than if you request it yourself. That seems like a poor dispute resolution strategy. – Zach Lipton Dec 27 '18 at 21:47
  • @ZachLipton Sorry, I didn't call it out but, yes, I've asked through a few different paths that either passed me on, ignored the contact or flatly denied refund being a possibility. – John Spiegel Dec 28 '18 at 4:00

protected by feetwet Dec 28 '18 at 1:55

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