Player Data From Wearable Technology in Demand But Presents Host of Concerns
Brian R. Socolow
Partner, Loeb & Loeb, LLP
SFIA Legal Task Force Member
Player Data From Wearable Technology in Demand But Presents Host of Concerns
The development of wearable technology to collect data during training and competition has opened a valuable information market in the sports industry. Leagues, teams, players, even agents and the media now demand a constant supply of intricate performance information. The availability of new, improved or different wearable technology has exploded, and with it the business of sports data in professional sports.
Sports data is big business. The collection of player data isn’t a new phenomenon, but it’s a rapidly evolving one. The National Basketball League, for example, has been using player-tracking technology since 2009. Leagues and teams are now continuously seeking new ways to create – and monetize – new data streams. In late 2016 sports data and digital content provider Sportradar US reached new deals with three of the four major sports leagues—the NBA, the National Football League and the National Hockey League—either launching or expanding on partnerships to collect, analyze and distribute player, team and league data.
By 2019, wearable sport technology industry is expected to generate more than $53 billion in sales of wearable technology including the fitness and health segments, increasing over 10 times more than the $4.5 billion generated in 2014, according to analysts. But the use of wearable technology raises important questions about the legal challenges that this new market represents, and the collection, use and monetization of the data in professional sports involve these questions – as well as others. As the technology evolves, pro sports leagues and teams will continue to grapple with issues surrounding privacy, data security and ownership, and labor concerns, as rules established through collective bargaining agreements, legislation, and the inevitable litigation take shape around the collection, use and distribution of information gleaned from wearable technology.
An example of a recent development in this evolving area in the NBA’s ban on the use of wearable device data in contract negotiations and player transactions. Under the NBA’s latest Collective Bargaining Agreement with its players, teams may use the data gathered from wearable devices to monitor player health and performance for training purposes, but are prohibited from using the data to influence any other decision making.
More than two dozen NBA teams use technology like Catapult’s OptimEye to track and analyze player performance through motion sensors on player jerseys. The combination of hardware and software provides biomedical data, including impact forces, turn rates and orientation. But after a player for the Cleveland Cavaliers wore a biometric monitor without permission for 13 games in 2015, the NBA is serious about restricting the use of such devices—violations of this rule carry fines of up to $250,000.
At the same time, the NBA does anticipate using wearable technology data in other ways in the future. The league recently announced that it was forming a committee to assess how wearable tech could be used to the sport’s advantage, including the possibility of allowing players to wear biometric monitoring devices during games.
The NFL is already there. In 2016, team general managers gained access to player performance data known as “Next Gen Stats,” which the league started gathering during the 2015 season. The initiative had been in the works since 2011, when NFL players agreed to wear tracking devices as part of their collective bargaining agreement. Next Gen Stats captures real-time information on every player’s movements during a game through a partnership with Zebra Technologies to outfit its stadiums with radio frequency identification signals (RFID) technology and accumulate information collected using sensors on players’ shoulder pads.
The Next Gen Stats platform also gives broadcasters real-time visualizations and Xbox One data- enriched replays, and makes players’ performance data available to fans, who can access detailed statistics on their favorite players. For example, Next Gen Stats collects data on passing, including “Time to Throw,” which measures the time in seconds from the moment the ball is snapped to the moment the ball leaves the passer’s hand; “Air Distance,” which is the number of yards the ball has traveled on a pass; and “Air Yards,” which is the total distance past the line of scrimmage that the ball travels before a catch.
Data is also essential to helping trainers, coaches and players optimize performance and reduce the risk of injury. Major League Baseball, for example, approved the use of three biometric wearables during game play. MLB players are allowed to wear a Motus Baseball Sleeve to track elbow stress and the Zephyr Bioharness heart and breathing monitor. Most recently the league approved a device made by WHOOP that is meant to be worn day and night to continuously measure sleep, recovery and strain, allowing the team to monitor a player’s body before, during and after a game.
Pitchers from the majority of MLB teams are benefitting from the Motus “mThrow” smart throwing sleeve and iOS app. Contained in a pocket over the pitcher’s elbow, a small removable sensor’s accelerometers and gyroscopes track arm movements with an eye toward maintaining arm health. The device wirelessly transmits the three-dimensional motion data to an app that calculates stress caused by torque on the ulnar collateral ligament. Several companies including Zepp Baseball, Diamond Kinetics and Blast Motion have also developed in-bat motion sensors to track and analyze player swings.
Other sports are testing the waters of wearable technology in uniforms, shoes and equipment to track performance and enhance training. The NHL has put smart chips inside pucks and players’ jerseys can measure quantitative data, puck and skating speed, puck trajectory, puck and player location, and ice time. “Corner” is a wearable performance tracker for boxing, providing real-time performance analysis during training. With two small sensors slipping into a boxer’s hand-wraps, every punch is tracked and measured with data shown live on a phone app or alternative Bluetooth enabled devices.
Sports organizations know that player performance data is key to fan engagement. Fans – especially the coveted millennials – have a deeper, more sophisticated understanding of the game when they know how fast a player is running or how much distance is being covered on the court, field or ice. Biometric data can also be used by fantasy sports enthusiasts, who might select a player for their team based on health as well as performance information.
Wearable tech can even help fans feel what the athletes are experiencing. The NHL’s San Jose Sharks and Columbus Blue Jackets collaborated with tech startup Guitammer to develop a fan engagement experience that could one day extend into the wearable technology arena. When players are cross-checked into the sensors around the rink, their seats in the stadium shake with the impact. A home adaptor kit is available for those fans who want to experience more of an arena feel of the crashes and slams from the comfort of their couches.
ButtKicker Live’s 4D Sports began with sensors placed on the boards at the San Jose and Columbus ice rinks; the sensors captured and distributed the impact of skater hits to seats in their home arenas and fans’ homes. The potential exists to enhance the fan experience in myriad sports with wearable technology transmitted from sensors embedded in athletes’ uniforms and equipment.
Of course, wearable technology in pro sports has a significant downside, in the form of a host of unresolved issues around who owns and has access to the data, and what constitutes acceptable use of that data. Leagues and teams are collecting data in amounts and ways they never have before and they need to figure out how to protect that data and who gets access to it. Players naturally want control of the data because of concern about privacy issues; leagues want the data so that they can monetize it.
Currently, the rule appears to be that the leagues and teams own at least the raw data, as well as whatever aggregation and analysis they undertake. But what can they acceptably do with that information? Players are employees and data collection by any employer carries significant concerns, and overlap certainly exists with the issues that face professional sports and other types of employment, which is especially true of questions concerning privacy and confidentiality.
Giving third parties access to player data adds an additional layer of concern. Beyond teams and leagues, who should have access to the data, and for what purposes? Should analytical data on individual players be shared, and to what extent, with broadcast partners, sports commentators and analysts? What about video games and fantasy sports—do the individual players have any say in what information is released? It’s also worth noting that the Health Insurance Portability and Accountability Act does not apply to new technologies or biometric data.
It’s unclear, at this time, what regulatory scheme, if any, would offer any protection and, in the professional sports realm, what constitutes reasonable cyber security protection for information collected from wearable technology devices. And, as the data becomes increasingly detailed, the risks increase: hacking by stalkers, improper use by management, demands by insurers, or requests for discovery in litigation.
In the world of professional sports, as in the world at large, innovation in technology tends to outpace the development of rules, regulations or guidelines on its use, and biometric monitoring is no exception. The next round of collective bargaining by major sports leagues may be critical in determining what the mechanisms and protocols will be for collecting and using player’s biometric data. The leagues will undoubtedly be watching each other to see how negotiations address the issues.
Already on the horizon is injectable, ingestible and implantable technology to collect health data from professional athletes at the most granular level, which means that sports leagues and teams will continue to grapple with important issues of privacy, data security and ownership, and employment concerns as regulations take shape on a variety of fronts. About the only thing that can be predicted for sure at this point is that there’s considerable uncharted legal territory ahead.
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