Today the sports industry’s elite meet in Boston for the MIT Sloan Sports Analytics Conference. Industry vets come together with today’s innovators and tomorrow’s business superstars. Experts will address sports data, tech and other hot topics in the industry. One question is strongly debated: who owns the data?
The Possibilities
Imagine practicing your swing in the batter’s box while getting tips from the virtual version of your team’s designated hitter. Or running a play down the field with your favorite virtual football team. This is the potential future of virtual reality that offers personalized, immersive content for fans. Augmented reality – where digital content is incorporated into your physical world – and mixed reality – where you can interact with augmented holographic digital content in your immediate area in real time – promise to create even more realistic experiences. Fans want more interactive content and the sports industry is in overdrive trying to give it to them.
The most robust fan engagement experiences of the future will incorporate player tracking data collected from athletes, and even data from fans, to make athlete-fan interactions even more realistic. Athlete biometric data, one form of player tracking data, will naturally make its way into products for fans including mobile apps, fantasy sports offerings, sports betting, and more.
Here’s the catch: athlete biometric data, or ABD, is property owned by the athletes and is subject to privacy and intellectual property rights. ABD stays with an athlete throughout his life, regardless of who collected it. This raises new challenges for leagues, teams and unions that want to commoditize and monetize this data.
ABD differs from historical statistics in several ways, but two are most significant. First, this data is comprised of granular personal health information previously unavailable, particularly to the public. This raises privacy concerns. Second, it contains unique characteristics that identify a specific athlete – which is where the value is – much as an athlete’s name, image and likeness do. These characteristics have corresponding property rights.
Privacy Rights
New wearable, injectable and implantable technologies allow collection of highly confidential health information and lots of it – think Apple watch or your favorite FitTech app. The sports industry has access to even more powerful tools. Biomechanical and physiological data are collected to help athletes and engage fans. New media and platform technologies allow this data to be used in ways never-before imagined. For example, the NFL and Zebra Technologies partnered to outfit NFL players and stadiums with technology that captures each athlete’s acceleration rate, on-field position and distance covered on each play. This data is used to understand each player and to engage fans during broadcasts and through the NFL’s mobile app, Next Gen Replay feature and fantasy football offerings.
Major League Baseball uses the Zephyr BioHarness which has an accelerometer, ECG sensor, and temperature sensor which report heart rate variability, respiration rate, activity and calories burned. These metrics were used to increase player efficiency and find greater value in trades and free agency but the same data is valuable to sports fans for making their fantasy picks. Leagues looking for new ways to engage fans and increase viewership, will view using the data at their disposal as a no-brainer.
Publicity Rights and Intellectual Property Rights
Historically sports stats were considered facts that no one could own. ABD is different because it has characteristics of publicity rights and intellectual property rights. ABD is inherently connected to the athlete and is available from the athlete only rather than from others who observe that athlete’s performance then report it in box scores. This makes ABD a very valuable commodity that only the athlete has the right to control and receive compensation for.
To illustrate, “biometrics” are unique biological and behavioral characteristics that identify an individual. ABD reflects a player’s identity, qualities, activities, playing information, and statistics that fall within the scope of publicity rights. These characteristics differentiate one person from another and are used in connection with the owner’s name, like a person’s image, likeness and activities. Identity and characteristics are at the crux of defining publicity and trademark rights under statutory and common law.
Pertaining to sports specifically, courts have held that physical characteristics are considered publicity rights. Individual player statistics and “playing information” are also publicity rights. Legal scholars add that publicity rights protect representations, traits, or anything else that evokes a marketable identity.
ABD certainly falls into these categories. The right of publicity is the “inherent right of every human being to control the commercial use of his or her identity, according to legal scholar J. Thomas McCarthy. Essentially, the owner of these characteristics – the athlete – has enforceable publicity rights in his or her ABD. This is true for athlete endeavors that directly promote the athlete’s sport and those that athletes participate in independently to promote their own brand and generate income. As the owners of ABD, athletes may assign or license their rights to third parties. They may also prevent misappropriation through use of their ABD that is clearly unauthorized or beyond the scope authorized by the athlete.
Publicity rights claims in sports are usually raised with other intellectual property right claims – typically trademark and copyright infringement claims. ABD shares characteristics with trademarks and copyrighted works as well. The law in this space will evolve. Anticipating this, industry players can define rights in contractual terms and use other strategies to minimize disruption from court decisions.
Trade secrets are also impacted by ABD. Proprietary information developed by sports organizations to track athlete health and performance incorporate ABD. This competitively valuable information is protected under state and federal statutes. The Houston Astros computer network hack by a St. Louis Cardinals employee emphasizes the value and high stakes of trade secrets in sports. Clarifying ownership and use rights in ABD is necessary in this developing area.
The Impact
Athletes, leagues, teams, players associations, and their data partners are the most impacted. The downside is that athlete rights may be eroded or waived before the ramifications are fully understood, resulting in lost privacy, rights, and revenue. Leagues, teams and unions may be forced to spend millions of dollars on legal claims, as could their partners who collect or use ABD. These parties may take a hit reputationally and to the bottom line.
Tension may also arise if ABD is used for dystopian purposes. Leveraging it against athletes in contract negotiations or to disadvantage players based upon genetic markers is problematic. The magnitude of the issues creates potential for regulatory challenges, class action lawsuits and other forms of litigation and legal claims that can limit progress and eat away vast amounts of resources.
Collaborative, Forward-Looking Solutions
Sports industry players can take a collaborative approach to optimize revenue generation opportunities while mitigating risk. Understanding the privacy and property rights of the athletes is key to balancing these rights among sports industry players.
The NBA is setting the pace. It recently announced that wearables and biometric data issues will be addressed in the new collective bargaining agreement. A new wearables committee comprised of NBA and NBPA representatives will manage and regulate ABD and its use. This is a great first step.
Developing standards and clarifying ethical considerations will minimize ambiguity and promote a level playing field. Implementing cross-organizational best practices that encourage compliance with applicable laws will benefit all industry players. Ensuring athletes are informed about how the data will be used and educated about their rights will foster trust and encourage ABD contribution. All parties can implement winning strategies now for future commercialization of ABD.
For more on this topic, see the article The Sport’s Industry’s New Power Play: Athlete Biometric Data Domination. Who Owns It and What May Be Done with It?
Author Bio: Kristy Gale is a sports technology law pioneer specializing in sports data, intellectual property, privacy rights, and legal issues raised by the Internet of Things. She is the founder of Hypergolic Enterprises, a sports data rights management and compliance company. Kristy serves on the advisory board of the Institute for Biometric Data Optimization and Protection. Kristy is also a guest contributor on the topic of sports technology. You can follow Kristy on Twitter: @SportsTechLaw.
