As Biometric Data Collection Increases, So Do Athletes' Concerns


What is biometric data?

This is a broad term used to refer to data metrics of human characteristics and the performance of an athlete’s body during the game.

A Long Time Coming

Michael Lewis’s 2003 best seller, Moneyball, first explored the use of statistical analysis to influence management decisions. This initial practice led to what is now a continuous search for how to identify undervalued athletes to gain a competitive advantage. While teams have always used some sort of statistics or analytics to evaluate current and future player potential, the metrics and technology used to obtain this data have greatly changed over time.

Professional sports leagues and teams utilize wearable technology to collect athletes’ data, including biometric data. Recently, the National Football League Players Association (NFLPA) formed the OneTeam Collective, which introduced a partnership that makes WHOOP the Officially Licensed Recovery Wearable of the NFLPA. As part of the agreement, NFL players will own and control their individual data collected via the WHOOP Strap and design custom licensed bands for personal and commercial sale. The NFLPA and other organizations are more and more beginning to see the immense value and potential of collecting this information.

As Biometric Data Collection Increases, So Do Athletes’ Concerns

WHOOP and other smartphones, watches, and fitness tracking bands are all being utilized to store athletes’ metrics, thus presenting commercial and investment opportunities. High performance athletes are valuable assets. However, the implications of collecting such data are causing collegiate athletes to become weary, with concerns that the constant collection may start to affect game playing time, scholarship opportunities, or even projected draft order. Professional athletes share similar concerns, most notably the ownership rights of the data and how it may affect their current and future contracts. Professional teams are under immense pressure year-round to present a “winning” team. Can biometric data collection influence the value of a specific athlete?

Some professional sports leagues’ collective bargaining agreements (CBA) raise red flags as to potential harm from biometric data collection. Taken from the National Hockey League player contract, a player agrees “to keep himself in good physical condition at all times during the season,” with potential contract termination if this standard is not upheld. What used to be a subjective standard has transitioned to become more objective with the increasing use of biometric data. It prompts the question of what really is considered “good physical condition.” For example, during preseason practice, an athlete’s data may conclude that they have low oxygen intake or a high heart-rate during drills. Does this hurt the player and lead the team to believe the athlete has low and inadequate endurance to perform during the regular season? Could this be a defining factor in deciding whether to bench one player and start the other?

Today’s public statistics include passing yards, shots on goal, and many other performance measures, depending on the sport. These are used to rate players, negotiate salary, decide starting line-ups, and select draft picks. And the list goes on. However, the fact that biometric data provides information that is not readily available from outward game performance creates a new class of analytics. The basic mechanics and working characteristics of an athlete’s body are exposed as data is collected. Thus, privacy becomes another issue.

Privacy Concerns

The California Consumer Privacy Act, introduced in January of 2020 protects biometric data, but whether other states decide to use this as a template for their regulations is still up in the air. While there is not yet actual intellectual property in biometric data itself, data protection laws do not legally allow a third party to use the information if the data subject, i.e. the athlete, does not give their consent.

There are clear privacy interests associated with who is able to access their data and where the ownership rights lie. Not only teams and agents, but fans participating in fantasy sports leagues or sports gambling are always looking for a way to gain a competitive advantage. The disclosure procedures with biometric data storage carry a high risk of infringing on an athlete’s innate privacy. Athlete biometric data is considered personal health information that is subject to stricter privacy laws. The sensitive nature is distinct from other sports statistics, as historically, personal health information has not been available to the public in order to protect the privacy of athletes. The use of this data still remains largely unregulated, with the CBA’s of professional leagues just beginning to extensively address biometric data technology.

As the technology and awareness of the collection of biometric data and wearable devices continue to develop, it is only a matter of time before biometric data is prevalent in all different sports, whether they be individual or team-oriented. I’m sure every fan would love to know the heart rate of a player shooting a free throw to win the game with seconds left on the clock. However, will broadcasters and fans pay for an extra package of data just to see a player’s running speed at the beginning of a game versus the end? We will have to wait and see…



Sources:

Walmsley, David, et al. “The Long Read: How Big Are the Commercial Opportunities in Athlete Biometric Data?” SportBusiness, 11 Feb. 2019

Lam, Brian H. “Athletes And Their Biometric Data – Who Owns It And How It Can Be Used - Media, Telecoms, IT, Entertainment - United States.” Articles on All Regions Including Law, Accountancy, Management Consultancy Issues, Mintz, 20 Dec. 2017

Christopher Casher, Moneyball in the Era of Biometrics: Who Has Ownership Rights Over the Biometric Data of Professional Athletes?, 2019 28 Dalhousie Journal of Legal Studies 1, 2019 CanLIIDocs 2936

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