Judge Rules in CrossFit’s Favor, NSCA Attempts Damage Control

Federal Judge Rules NSCA Article Made False Claims About CrossFit

CrossFit Inc. achieved a crucial victory in its lawsuit vs. the National Strength and Conditioning Association on September 21. Judge Janis Sammartino ruled that the NSCA published false injury claims about CrossFit in its Journal of Strength and Conditioning Research. The NSCA article’s falsity is not news – we’ve proclaimed it to the world for three years. What is new is that a federal judge recognized this falsity as a matter of legal fact.

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In addition, Judge Sammartino ruled against the NSCA’s First Amendment defense. The NSCA argued that scientific journals have the right to publish false information about commercial competitors without facing false advertising charges. Imagine the precedent set had NSCA prevailed here. Dell could publish that Macs cause kidney failure, and Apple could not sue them for false advertising. That is, as long as Dell published these false claims in a “scientific journal.” Strangely, NSCA argued that scientific journals should bear less accountability for publishing false information than other sources of information.

Judge Sammartino’s 20-page ruling is replete with quote-worthy lines. Take this one on page 12.

Based on the evidence in the record, a reasonable fact finder could conclude that the NSCA fabricated the injury data and published them in the JSCR knowing they were false with the intention of protecting its market share in the fitness industry and diminishing the burgeoning popularity of the CrossFit program.

Or take the judge’s argument on pp. 12-13:

Looking at the communication from the JSCR editorial staff to the Devor Study authors, a reasonable fact finder could conclude that the NSCA pressured the authors to include data disparaging CrossFit’s exercise regimen, and the editor-in-chief’s admonition—“[r]emember the paper can still be rejected if the reviewers are not impressed with the sophistication of the revisions made”—could be construed as a veiled threat that the JSCR would not be interested in publishing the Devor Study if it did not include information showing “the fact many people do get injured doing these types of workouts,” whether or not that “fact” was true in this qualitative study.

This is essential to understand: authors Steven Devor and Michael Smith submitted a injury-less paper to the NSCA. Then, as the judge notes, NSCA editor-in-chief William Kraemer warned the authors that he would reject their paper unless they revised it as recommended. Of course, these recommendations included multiple requests to include injury data.

And therefore, the NSCA does not get to pull the “but it’s a scientific journal” defense:

the evidence now before the court could reasonably support the inference that the injury data were false and—worse—that the NSCA knew they were false and published them anyway in an attempt to protect its position in the market. If a party intentionally publishes false data about a competitor’s product to protect its own market share, that speech is commercial in nature and not subject to the same degree of protection as noncommercial speech.

Finally, Judge Sammartino concluded,

CrossFit has presented evidence showing the injury data were in fact false— regardless of whether the authors knew it at the time—and the NSCA has identified no evidence to the contrary. Accordingly, the Court GRANTS summary judgment in CrossFit’s favor on the element of falsity

Frankly, I was embarrassed reading some of Sammartino’s report – she elucidated the NSCA’s true motivations and behavior better than I have.

NSCA Damage Control Backfires

Two days later the NSCA reassured its Facebook page that everything was all right.

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Sure, the judge ruled we published spurious injury data about our competitor, but have no fear, we can still come out on top here.

Let’s just say the NSCA’s reassurances may not have had their intended effect:

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NSCA to Judge: Please Let us Appeal Your Decision Early

Exactly one week after it announced it “remains confident” about its chances at trial, the NSCA filed a motion to appeal the judge’s ruling.

Keep in mind that the CrossFit vs. NSCA case continues. Normally, a party can only appeal a case once it has been decided. When a party is so worried about its chances going forward that it wants to file an appeal before the case’s outcome is determined, however, it can file an “interlocutory appeal.”  It is like asking a refund before you’ve paid the bill.

The NSCA currently has no right to appeal the judge’s decision. So NSCA’s lawyers have to persuade Judge Sammartino to “certify” her order. Only if the judge grants their request, can the NSCA appeal her September 21st ruling.

The NSCA’s appeal request centers on the NSCA’s most absurd argument: Even though the NSCA published bogus allegations about CrossFit in its own journal, and even if the NSCA had an obvious commercial motivation to do so, the bogus allegations would not count as commercial speech.

Perhaps this argument makes sense to the NSCA’s lawyers.

We will see whether Judge Sammartino grants the NSCA’s last-ditch request. Either way, CrossFit is eager to go to trial.

7 comments

  1. This is quite a piece of work.

    So first, the judge didn’t actually make a ruling. As my good friend, an attorney, said:

    “If the judge is using phrases like “reasonable finder of fact” it probably just means that the CrossFit people survived summary judgment or a motion to dismiss. That means that the judge is required to assume their alleged facts are true to test the legal arguments. Most likely the judge did not actually make any factual findings.”

    And my friend is right. That’s all that happened. The case now goes forward to a jury. The NSCA doesn’t need to be concerned with “damage control” because they haven’t yet legally been found liable in any wrongdoing. Appealing, and thus possibly avoiding a potentially lengthy and costly trial, is standard procedure.

    Even if the data on injury rates was erroneous (which appears to be the case), it’s on CrossFit to prove that it was falsified intentionally. It’ll be especially hard to demonstrate that since the study reported *positive* results with CrossFit, and the bit about injury rates wasn’t even in the abstract. CrossFit would also have to prove that the erroneous data hurt the brand financially to collect any damages from the NSCA, and I don’t see any possible substantiation for that, particularly given the cautious wording of the question in section (see: http://deadspin.com/whats-the-matter-with-crossfit-1606127917). And since CrossFit has no standardization of the programming and/or pedagogy of its affiliates, even if the injury rates were accurate it would be impossible to extrapolate that to even one single other “box”, much less the thousands across the globe — thus making it even more insurmountable for CrossFit to argue that the study did any damage to the brand or could have legitimately comprised an anti-competitive practice.

    It’s worth pointing out that nobody, not even “the Russells” or “coach” Glassman himself, has the slightest clue about how safe or unsafe CrossFit really is. CrossFit does not collect scientifically controlled data on injury rates of its participants, much less subject such data to peer-review and replication. So the refrain from corporate is a weak, “there’s no evidence CrossFit is dangerous”. Which is true! There’s no evidence it’s safe, either, because no one’s collecting any damn data! And why would they? Above all else, CrossFit has to protect the image of the brand because, unlike NCCA-accredited organizations, it is purely a for-profit corporation. Much easier to keep barking from the blogs at non-profits who actually contribute to scientific research than to take the chance that research might show CrossFit trainees to have higher-than-average rates of injury.

    Regarding licensure: the personal training industry is totally unregulated. This is a field that takes people along a broad spectrum of health and subjects them to potentially dangerous activity (y’know, the reason gyms all have waivers forcing people to acknowledge that exercise can cause serious injury or death). It’s one filled with unaccredited, unregulated “certifications” that claim all sorts of dubious things, like (say) the Egoscue method. An online course, a bodybuilding competition, or weekend certification is often all anyone needs to claim they’re a “personal trainer”. Given the very real risk of unprepared trainers hurting people, anyone with a modicum of experience in the industry can see that there’s a need for regulation and standardization.

    CrossFit is irked that they’re (thus far) left out of the process. But why the hell should CrossFit certifications be involved at all? CrossFit is a for-profit corporate brand worth some $100 million, and CrossFit certifications are only good for training in-house at CrossFit affiliates. Guess what? Fitness Together, the nation’s largest personal training franchise, also offers an in-house certification. Who cares? Try taking that FT “certification” anywhere else and see how far it gets you. People with NCCA-accredited certifications can work at any number of commercial, private, educational, or non-profit organizations. That’s why it’s patently ridiculous to assert that CrossFit is in any way a “competitor” for these organizations. For the NSCA’s part, they publish the leading peer-reviewed journal in the industry; the CrossFit “Journal” is a newsletter, not a peer-reviewed research journal. The NSCA’s CSCS is the standard for collegiate-level athletic programs; again, CFL1 will only get you in the door at a CrossFit affiliate. Do you not see the many substantial and relevant differences here?

    This entire lawsuit is nothing but an embarrassment for the CrossFit brand and, as Deadspin rightly opined: “Desperately wanting approval, it has circled the wagons and worked actively against the very means to its validation. The biggest problem CrossFit has is itself.”

    • Russ Greene

      Mike D. Thank you for your comment!

      You may want to consider, however, reading a judge’s ruling before declaring that it is not a ruling. Better late than never: https://therussellsblogdotcom.files.wordpress.com/2016/09/nsca-msj.pdf

      In addition, it would not hurt to read and understand my articles before commenting on them.

      To save you time, below are some key points you will learn upon reading the order. Your lawyer friend, who did not read the ruling, and your unqualified desire to defend the NSCA’s false information, have led you astray.

      A. You: “the judge didn’t actually make a ruling”
      Face: The judge herself described her decision as “ruling:”

      “with this claim CrossFit seeks an abstract statement that the data were false. Practically speaking, the Court is already providing such a statement by ruling on CrossFit’s Motion for Partial Summary Judgment, which is limited only to the question of whether the injury data were false.”

      B. Your lawyer friend:

      “If the judge is using phrases like “reasonable finder of fact” it probably just means that the CrossFit people survived summary judgment or a motion to dismiss. That means that the judge is required to assume their alleged facts are true to test the legal arguments. Most likely the judge did not actually make any factual findings.”

      Nope. The judge ruled, based on the evidence, that the NSCA article’s injury claim was false. Her order makes this clear as day:

      “CrossFit asks the Court for summary judgment in its favor that the injury data in the Devor study were false … As before, the Court concludes that the declarations from these Devor Study participants show the data were false and that the NSCA has presented no evidence to the contrary … CrossFit has presented evidence showing the injury data were in fact false— regardless of whether the authors knew it at the time—and the NSCA has identified no evidence to the contrary. Accordingly, the Court GRANTS summary judgment in CrossFit’s favor on the element of falsity as it pertains to each of CrossFit’s causes of action.”

      C. You: “And my friend is right. That’s all that happened. The case now goes forward to a jury. The NSCA doesn’t need to be concerned with “damage control” because they haven’t yet legally been found liable in any wrongdoing. Appealing, and thus possibly avoiding a potentially lengthy and costly trial, is standard procedure.”

      What kind of scientific organization’s will remain unaffected if it publishes false information, and fails to correct for two years? Thanks to COPE and ICMJE are clear standards for how NSCA should have responded to evidence that it published false information. Had it followed them, this lawsuit almost certainly would not have happened.

      The judge ruled that the NSCA published false claims about CrossFit. Contrary to your comment, she did not assume this, for the sake of argument. Judge Sammartino looked at the evidence presented and declared that the NSCA published false injury claims about CrossFit as a matter of fact.

      All of the subjects the NSCA claimed injured stated officially to the court that they were not injured in the course of the training and did not tell anyone they were. And even the NSCA has issued a correction of its false information!

      D. “Even if the data on injury rates was erroneous (which appears to be the case), it’s on CrossFit to prove that it was falsified intentionally.”

      This is, by far, my favorite part of your comment. You concede that the NSCA “appears” to have published false information about CrossFit, and yet manage to defend the NSCA. Sure, the Judge ruled the NSCA’s claims false as a matter of legal fact. And fine, the subjects unanimously declared that the claims were false. And one may note that the NSCA itself issued a correction telling readers to disregard its articles injury claims. Nonetheless, you, Mike D., keep hope alive – for you, the NSCA’s claim only “appears” to be false.

      As for intent, remember that thanks to legal discovery we have troves of internal NSCA documents, including all of their communications regarding CrossFit, and all of the NSCA editor and peer reviewer comments.For example, we know that NSCA editor-in-chief William Kraemer pressured the authors to include injury data in their study, even though they did not report it, or even collecting it, in their first two submissions.

      E. “It’ll be especially hard to demonstrate that since the study reported *positive* results with CrossFit, and the bit about injury rates wasn’t even in the abstract.”

      Your point would be valid if people read the study more than they read the popular media surrounding the study. We know, however, that more people read Outside Magazine, for example, than Journal of Strength and Conditioning Research abstracts.

      F. “CrossFit would also have to prove that the erroneous data hurt the brand financially to collect any damages from the NSCA, and I don’t see any possible substantiation for that, particularly given the cautious wording of the question in section (see:http://deadspin.com/whats-the-matter-with-crossfit-1606127917).”

      We have compelling evidence of damages. Nonetheless, let’s assume the worst case scenario for CrossFit. The injury claim is false, the NSCA is responsible for it, and the NSCA knew it was false before publishing, but a jury rules that CrossFit Inc.’s business was not damaged by it.

      At that point we get an official ruling that the NSCA published a false claim about CrossFit after repeatedly failing to look into substantiated reports indicating the claim was fraudulent.

      G.“And since CrossFit has no standardization of the programming and/or pedagogy of its affiliates, even if the injury rates were accurate it would be impossible to extrapolate that to even one single other “box”, much less the thousands across the globe — thus making it even more insurmountable for CrossFit to argue that the study did any damage to the brand or could have legitimately comprised an anti-competitive practice.”

      You must have missed the myriad articles which alleged that CrossFit is dangerous, and relied on the NSCA article as their sole statistical substantiation.

      Outside Magazine, for example, published the NSCA article’s injury claims and produced the headlines, “Is CrossFit Killing Us?” and even better, “Is CrossFit Destroying the World?”

      H. “It’s worth pointing out that nobody, not even “the Russells” or “coach” Glassman himself, has the slightest clue about how safe or unsafe CrossFit really is. CrossFit does not collect scientifically controlled data on injury rates of its participants, much less subject such data to peer-review and replication.”

      We do collect injury claim reports from thousands of affiliates through CrossFit’s Risk Retention group. And the US military collects injury data from the thousands of personnel put through L1 seminars. And external scientists (Hak, Giordano, etc) have studied samples of CrossFit affiliate members and published their findings. Guess what all of this indicates? The injury rates collected were all less than or similar to those found in other recreational physical activity such as running and “general fitness training.”

      I.
      “So the refrain from corporate is a weak, “there’s no evidence CrossFit is dangerous”. Which is true! There’s no evidence it’s safe, either, because no one’s collecting any damn data! And why would they? Above all else, CrossFit has to protect the image of the brand because, unlike NCCA-accredited organizations, it is purely a for-profit corporation. Much easier to keep barking from the blogs at non-profits who actually contribute to scientific research than to take the chance that research might show CrossFit trainees to have higher-than-average rates of injury.”

      False. See above.

      J.”Regarding licensure: the personal training industry is totally unregulated. This is a field that takes people along a broad spectrum of health and subjects them to potentially dangerous activity (y’know, the reason gyms all have waivers forcing people to acknowledge that exercise can cause serious injury or death). It’s one filled with unaccredited, unregulated “certifications” that claim all sorts of dubious things, like (say) the Egoscue method. An online course, a bodybuilding competition, or weekend certification is often all anyone needs to claim they’re a “personal trainer”. Given the very real risk of unprepared trainers hurting people, anyone with a modicum of experience in the industry can see that there’s a need for regulation and standardization.”

      I’ll quote the ACSM and CREP on licensure: http://www.acsm.org/about-acsm/media-room/for-the-record/licensure-crep

      “ACSM’s (and now CREP’s) position to not support licensure for all exercise professionals is based on growing scientific evidence about the safety of exercise for healthy populations, resulting rising costs, decreases in practitioners, disruption of businesses and overall lack of compelling rationale.”

      So you disagree with the foremost advocates of licensure, on licensure. That’s kind of like being more Catholic than the Pope, or being too radical for Al Qaeda (I’m looking at you, Abu Bakr Al Baghdadi.)

      Lastly, I am amused by you criticizing a “weekend certification” when the NSCA and ACSM’s personal trainer certifications require only passing a test, and no experience or even training.

      K.“CrossFit is irked that they’re (thus far) left out of the process. But why the hell should CrossFit certifications be involved at all? CrossFit is a for-profit corporate brand worth some $100 million, and CrossFit certifications are only good for training in-house at CrossFit affiliates. Guess what? Fitness Together, the nation’s largest personal training franchise, also offers an in-house certification. Who cares? Try taking that FT “certification” anywhere else and see how far it gets you. People with NCCA-accredited certifications can work at any number of commercial, private, educational, or non-profit organizations. That’s why it’s patently ridiculous to assert that CrossFit is in any way a “competitor” for these organizations. For the NSCA’s part, they publish the leading peer-reviewed journal in the industry; the CrossFit “Journal” is a newsletter, not a peer-reviewed research journal. The NSCA’s CSCS is the standard for collegiate-level athletic programs; again, CFL1 will only get you in the door at a CrossFit affiliate. Do you not see the many substantial and relevant differences here?”

      Our claim that the NSCA sees CrossFit as a competitor is substantiated by NSCA documents and NSCA official testimony. If the NSCA explicitly agrees with us, I take their word over your assumptions.

      I may add that organizations do not normally lobby to criminalize through occupational licensure, products and services in their same fields which pose no threat to their livelihoods.

      L. “This entire lawsuit is nothing but an embarrassment for the CrossFit brand and, as Deadspin rightly opined: “Desperately wanting approval, it has circled the wagons and worked actively against the very means to its validation. The biggest problem CrossFit has is itself.””

      The NSCA knowingly published false information about CrossFit. We informed the NSCA multiple times, through multiple means of communication, their claims were false and unsubstantiated. Yet the NSCA refused to act. Instead we had to sue the NSCA, get undeniable statements from the study’s own subjects, and wait two years for the NSCA to even issue a substandard correction.

      No, Mike, it is not CrossFit that is embarassed by these actions.

      Once it becomes a matter of legal fact that the NSCA knowingly published false information about a commercial competitor, what remains of the NSCA’s credibility as a scientific organization?

      I’ll let the remaining space in my comment box suggest the answer:
      (

      )

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  3. Seamus Michael Keating

    First off, I want to say that I appreciate the fervor with which Crossfit defends its affiliates and the community. There is a lot of thoughtfulness that went into this article, and the response to prior comments, and I think that is great. However, I think the way that this blog, and Crossfit corporate have gone in terms of spin is a bit much. As a lawyer reading through a lot of this stuff, it reduces my trust overall in Crossfit corporate with the way that some of this stuff is presented. The way this and the recent Missouri judgment were spun were really unnecessary, in my opinion. Like I said, I understand why it’s necessary to protect a brand, but it seems a little scorched earth to me.

    In general, most members of the public don’t understand the law, or what it actually means. Take for example what’s being circulated, the “meme-ified” post citing quoting the ” reasonable fact finder could conclude that the NSCA fabricated the injury data and published them in the JSCR knowing they were false with the intention of protecting its market share in the fitness industry and diminishing the burgeoning popularity of the CrossFit program.” That section of the decision that quoted was from the judges ruling on the NSCA’s Motion for Summary Judgment on their First Amendment Defense, not the very positive for Crossfit ruling on the fact that the injury data published was actually false. And frankly, while that seems to be splitting hairs, it is an important distinction because it speaks to intent, which is a necessary element that Crossfit needs to prove in this case. And people only understand that if they understand the law, and read the decision, which most people will not do. All I’m saying is it would have been better to perhaps lead with this quote: “CrossFit has presented evidence showing the injury data were in fact false…and the NSCA has identified no evidence to the contrary.” The judge ruled that the data published in regards to the individuals not being able to complete the program due to injury was in fact false. That’s is great. Lead with that. What the judge did NOT rule on, and what must go to a jury still, is whether the NSCA and the authors intentionally published the false data. And I get it, it is a very easy jump to make, why else would they publish the false data, right? They have an interest in maligning Crossfit, because they view them as a competitor. However, the judge did not rule on the NSCA’s intent, that still remains a question of fact for a jury to determine. In fact, the judge took pains to point out that Crossfit’s motion was solely on the element of falsity, NOT whether the authors KNEW that the information was false. All I’m saying is, Crossfit won a victory, it doesn’t make sense to try to spin it beyond that.

    And in regards to the interlocutory appeal, that’s just standard legal strategy. A First Amendment Defense is a strong one, and they have a duty to try to pursue that if possible, including a potential interlocutory appeal. Not doing so would be foolish on their part, and they would lose the right to appeal the judges decision on summary judgment once it goes to trial. It’s also worth noting that the judge granted the NSCA’s motion for summary judgment on the declaratory judgment action, which is fine, it doesn’t hurt Crossfit’s case any.

    And just touching on the spin on the Missouri judgment, I get it, local judges can suck sometimes, and juries can be lazy and just want to get out of there. But that’s the legal reality unfortunately, and the reason why so many cases end up settling before trial. But when the judgment came out, you guys published an article taking shots at the judge from past cases, and basically saying that the jury was just interested in getting out of there. Which is 100% accurate, but unfortunately, is also the way the legal system works sometimes. You get crappy judges, and bad juries. It’s a lot like walking into a box and seeing your worst damn movements on the board, or your coach changing his mind that the burpees are over the bar or there’s only 1 minute of rest instead of 2 between rounds, you put your head down and deal with it. I get it, justice was not done in this case. Frankly, a lot of that has to do with Missouri being a pure comparative negligence state, rather than a modified comparative negligence state where a plaintiff would have to prove that others were 51% responsible. Regardless, pot shots at the judge don’t bode well for any judgments notwithstanding the verdict or post-trial motions that Crossfit may file before Judge Torrance.

    Look, I understand the need to defend the brand, and I think that is great. Crossfit has done wonderful things for me in my life, and I think it’s a great community. Its just the spin and scorched earth campaigns around the lawsuits leave me feeling a little uneasy. There was a judgment in Missouri, that sucks, but Crossfit believes in defending the brand and will continue to do so until all its legal remedies are exhausted, leave it at that. Judge ruled that the NCSA published false data, we’ll continue to pursue the case to trial, leave it at that. I just think that in both cases, the information could have been presented better, but I appreciate your passion for Crossfit, the community, and defending the affiliates.

    • Seamus,

      Thanks for the comment.

      First, you have accused us of “spin.” If you are suggesting that we are biased in our presentation of the facts, that’s obvious. There is no such thing as an unbiased point of view. To suggest this is a failure on our part would be naive, so I’m going to assume that by “spin” you are implying the use of disingenuous, deceptive, or manipulative tactics in our reporting on these cases. If this is correct, these are serious accusations. However, you have provided no evidence that we have done anything like this.

      Regarding our lawsuit against the NSCA, you are assuming the legal issues involved are too complex for the average reader to understand. That’s simply not true. Most of our audience has been following this closely and they understand what is going on. You are also assuming quotes from Judge’s ruling against the NSCA’s motion are not “positive” for CrossFit. This is also wrong. Finally, you are also assuming that we should be focusing on the ruing that the Devor study data was false, but this has been common knowledge to anyone paying attention to this case for years.

      Regarding the verdict in the Kansas City personal injury case, you agree on all of the observations I made, but seem to think that we should just quietly accept what happened. Maybe that’s how lawyers think, but we aren’t lawyers. Speaking the truth about what happened in that case is more valuable to us than preserving the ego of an unfit judge so that we can raise our chances of winning an appeal.

      So in short, your criticism is really just a matter of taste, and I’m going to have to say “thanks but no thanks.”

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