People and their technology are connecting more and more as the Internet of Things rapidly materializes. Fitness trackers are used by millions to collect and track their biometric data. Amateur and professional athletes utilize fitness tracking technology, including wearables, for the same purpose. This progression towards sharing and collecting personal health information impacts individuals and society in significant ways, yet the legal framework is undeveloped in this area.
The professional sports industry is an early adopter of wearable technology, utilizing it to prevent injury and increase athlete performance, improve team gameplay, and enhance fan experiences, both in-stadium and in peripheral offerings such as mobile apps and fantasy sports data.
Get The Latest Sports Tech News In Your Inbox!
For example, the NFL has partnered with Zebra Technologies to outfit its players and stadiums with technology that captures each athlete’s acceleration rate, on-field position and distance covered on each play. Matt Swensson, the NFL’s senior director of Emerging Products and Technology says, “we’ve always had these traditional NFL stats. The league has been very interested in trying to broaden that and bring new statistics to the fans . . . every week there’s another thought about how we can expand upon the information we’ve pulled together.”
Jill Stelfox, Zebra Techologies’ VP and General Manager of Location Solutions agrees: “The possibilities are truly endless.”
The NBA collects athlete biometric data (ABD) for the same purposes. Golden State Warriors star and the 2015 NBA Finals Most Valuable Player, Andre Iguodala, began wearing Jawbone’s UP wristband during the 2013-14 season to monitor sleep patterns. The data collected by the wristband was analyzed by Iguodala’s trainer who discovered Iguodala was getting less sleep than he believed which negatively impacted on-court performance. As a result, the trainer implemented new routines to increase the amount and quality of Iguodala’s sleep so that on-court performance improved. While Igoudala acknowledges the benefits, he also says, “I just hope we don’t become robots where they’re feeding us the same thing every day, and then it’s time to flip a switch and go to sleep.
Veteran NBA forward Shane Battier says biological testing influenced his decision to retire. “Big data is scary because you don’t know where it’s going and who’s seen it.” Battier raises a valid point, whether or not an athlete consents to the collection, use and dissemination of his ABD may depend on where he or she is at in his career and value to the team. The concern is underscored by the future of biometric data collection practices. Dr. Leslie Saxon of the University of Southern California’s Center for Body Computing envisions using “minimally invasive implantables . . . injectables that stay in the body for a year or two. No fuss.” She imagines the device transmitting biometric information to an individual’s phone and providing alerts that prompt better decision making.
These technologies provide increasingly granular data to teams and leagues about their players allowing them to identify problems and prevent injuries according to Alan C. Milstein, a leading bioethics attorney and sports litigator. Milstein warns, however, that monitoring athletes and utilizing biometric data for predicting performance is an economic purpose that raises ethical and legal issues.
These concerns are recognized by executives, team staffers and inventors, some of whom also see the value of the data for the purpose of identifying individuals who are genetically predisposed to high athletic performance. Yet, they are in a position of balancing the benefits of utilizing ABD with its costs. For example, under the NFL’s Collective Bargaining Agreement (CBA) with the NFLPA, the NFL may collect ABD for any purposes to publicize and promote NFL football, the League, or any of its teams.
Further, under NFL Players Contracts, athlete data, defined as a “Right” belonging to the athlete, may be used by the NFLPA and the NFL in connection with products, services and more. The collection and use of ABD addressed in the CBA is subject to some specified restrictions, however, clarity is needed as the Internet of Things grows and the Internet of Everything connects people and devices. This issue becomes increasingly urgent as those devices convey sensitive information to data collectors and their partners who may utilize ABD for additional products such as virtual reality, augmented reality, sports betting and other sports entertainment products.
The NFL and other professional leagues invest significant resources into offering products that fans and sponsors want so it is reasonable for them to reap the reward of their efforts. But the tension created by the use of ABD for monetized endeavors and emerging revenue streams created by new technological possibilities must be addressed.
This is particularly challenging because ABD is biometric data that may be defined in a variety of ways. This creates some confusion as to how it should be treated under the law. The term “biometric data” is defined by the Smart Card Alliance as a measurable, physical characteristic or personal behavioral trait used to recognize the identity, or verify the claimed identity of an individual.
This multi-industry alliance advocates the use of smart card technology to protect privacy and enhance data security and integrity. Biometric data collected from athletes, or ABD, is sometimes used interchangeably with “statistics” in the sports industry and is in many ways analogous or identical to terms having legal significance from litigated cases (e.g., “Historical Sports Information,” “Real-Time Information,” “Real-Time Scores,” and “Fantasy Sports Products,” and “Identity“). Further complicating matters is that sports statistics have traditionally been treated as free speech under the First Amendment, yet biometric data is a subset of health information subject to heightened privacy treatment under the Health Insurance Portability and Accountability Act (HIPAA). Biometric data may also fall within definitions used to protect intellectual property as copyrighted works, trademarks and rights of publicity, thereby allowing only owners of this property and their authorized licensees to exploit and profit from its use.
As a result, careful consideration must be given to the definition of ABD and the foreseeable ways in which ABD may be used to ensure the rights of athletes, leagues, teams and their sponsors are equally respected. Law and policy must evolve to allow innovation while protecting the rights of those who contribute to that innovation. This will stabilize the legal framework intended to balance and protect the rights of affected parties. In the meantime, a collaborative approach among athletes, players associations and leagues is most likely to result in protection of the parties’ rights and limit claims and their associated costs.
One approach that can provide widespread benefits for ABD contributors, collectors and users is to tailor an appropriate definition of ABD then modify existing contracts, including collective bargaining agreements, to minimize ambiguity. By clarifying what ABD is, what it is not, the purposes for which it may be used, collection practices, and consent and security requirements, all impacted parties will be in a better position to leverage revenue opportunities as new technology emerges. Implementing business solutions that address current and potential legal concerns, mitigate risk of high-cost litigation, and increases revenue for all involved is a winning strategy for athletes, leagues and the fans.
For an in-depth discussion of this topic, see the article “Evolving Sports Technology Makes its Mark on the Internet of Things: Legal Implications and Solutions for Collecting, Utilizing, and Disseminating Athlete Biometric Data Collected via Wearable Technology” in Volume 5 Issue 2 of the Arizona State University Sports & Entertainment Law Journal available Spring 2016 here or contact the author, Kristy Gale.