Tracking Every Move: How Wearable Tech is Changing the Legal Landscape of the North American Sports Industry
Photo Credit: charlottehbest Flickr via Compfight cc
The next frontier of the sports world has arrived, and yet we can’t even see it. That’s because the future of the North American sports industry is a tiny piece of technology embedded in the equipment and uniforms that athletes wear.
Commonly referred to as wearables,[1] these biometric trackers consist of microchip sensors[2] and bio-sensing silver fibers that are fitted into various pieces of equipment.[3] Wearables enable a team to record the personal health data of their players including blood pressure,[4] heart rate,[5] skin temperature,[6] and sweat production[7] amongst others metrics. The data is recorded and processed in real time[8] and enables athletes to gain crucial insight into the performance and condition of their bodies.[9]
Wearables have made their presence felt in every major U.S. sport,[10] largely as a result of the health and performance benefits provided to athletes.[11] From a performance perspective, athletes can use the data to maximize both their playing efficiency while competing and while resting.[12] More importantly, from a rehabilitation perspective, team doctors can identify which parts of the body are most injured, allowing players to get targeted and more effective treatment, or rest, thereby reducing the potential for long-term damage.[13]
The use of wearables in this context is not restricted to retroactive application. Doctors and trainers are able to use the data to anticipate the possibility of injury before they occur. In the NFL, transmitters in shoulder pads are tracking the impact of collisions.[14] In the NHL, wearables are tracking skating load and volume to determine which leg is working harder.[15] Meanwhile, in the MLB, a sleeve for pitchers evaluates the stress placed on the ulnar collateral ligament (“UCL”),[16] one the most vulnerable ligaments in professional sports.[17] Almost every MLB team is using this sleeve to protect their pitchers against torn UCLs and season-ending surgery by leveraging data to anticipate when the ligament is overworked.[18] Wearables might therefore assist in minimizing, or at least highlighting, the tremendous stress placed on an athlete’s body, thereby preventing injuries.
While this insight may prove beneficial to the players’ health, it also poses a significant risk in terms of the potential invasion of a players’ right to privacy. In particular, one must ask who owns this data, what can they do with it, and whether it is secure.[19]
In the NBA, the recently renegotiated collective bargaining agreement states that the players are the sole owners of the data, as the data pertains to their bodies.[20] Teams may look at it with the player’s permission, but they have no right to demand it or use it to the detriment of the player.[21] The NBA, however, has one of the strongest players unions in professional sports[22] and it has ensured their players would not be taken advantage of.[23]
What happens in leagues where the union is weaker, or there is no union at all, such as with college athletes?[24] Nike recently signed a deal with the University of Michigan to be their official uniform manufacturer, which allows Nike to embed wearables into the gear used by the student athletes.[25] A clause in the agreement grants Nike broad rights to utilize the data in their labs to develop future gear.[26] The University does retain some degree of veto power, and their approval is required for Nike’s use, but with little protection for the players, it is solely up to the University’s discretion whether it is in their best interest to grant this access.[27]. The players therefore have no ownership over the data pertaining to the most intimate details of their lives.
In addition to using the data, the data’s owner is also responsible for securing it. There is currently a dearth of federal regulations in connection with these tracking technologies.[28] The most logical regulations would seem to be the Health Insurance Portability and Accountability Act of 1996 (HIPAA) standards, which provide safeguards for healthcare information.[29] However, HIPAA only covers medical providers and related business entities, while most mobile health apps are not covered.[30] As it currently stands, HIPAA does not apply to data collected from wearables, leaving biometric data unregulated and exposed.[31] Moreover, there is an ever-present risk of hacking.[32] One must question whether sports teams truly invest in the infrastructure necessary to ensure the data is secure; even if they did, sophisticated hackers have been able to breach even the most secure networks.[33] Sensitive information is thus often unprotected and unsecure, leaving athletes vulnerable to data breaches.
Finally, in addition to the ownership, regulation, and securitization of the data, there is potential for abuse by the owners and teams in contract negotiations with their players. Teams, with their large and growing analytics departments, would have significant advantage over players in terms of their ability to act upon wearable data.[34] The concern is that the biometric data will be used to devalue players.[35] Instead of negotiations being based on past performance, “macro patterns related to age, injury history and previously undetectable biometric data” may well drive the conversation.[36] Some leagues, such as the NBA, have stated that biometric data cannot be used against the players when they negotiate a new contract.[37] But the penalty for doing so is only $250,000, a relatively small amount compared to the millions the players are asking for, making it worth the risk of getting caught.[38] Even if such abuse is closely regulated, coaches and trainers cannot forget the data they’ve already processed. They will simply mask their opinions behind other, more legit bases for devaluing a player.[39]
As the pace of technology increases and the law lags further and further behind, athletes risk becoming more susceptible to data breaches or leaks that may damage their careers and their reputations. Though players may remain healthy longer, they will do so at the expense of their privacy. The most intimate details of their lives may be owned, sold, stolen and circulated across the Internet. Even if the data were closely regulated and remained in house, players risk putting millions of dollars at stake because the team is protecting against an injury that may never occur.[40] As the lines between technology and athletics blurs, athletes must determine whether that is good or bad for their careers.
Footnotes
