mike jones | Does the sport have a legal basis to collect performance data?

At the elite level of sport, an athlete’s ability to increase performance levels through marginal gains is often the difference between success and failure.

Opportunities for marginal gains exist in all aspects of elite-level sport, from power, recovery and more ‘left field’ angles – such as the Sky team of the day which offered runners pillows with high -Built-in speakers so they can listen to music without disturbing their roommates. There are increasing opportunities to achieve marginal gains through the use of wearable technologies that collect data relating to an athlete’s performance.

Whether the data collected relates to the GPS positioning on a pitch (like the “GPS Tracker” vests worn by footballers), the physical impact suffered during a tackle (like the chips in the mouth guards worn by some rugby players) or the blood oxygen levels (like the gloves worn by F1 drivers), there are potential legal issues related to the collection and use of this data. This is particularly the case with the definition of “personal data” under the General Data Protection Regulation (GDPR), which is broad enough to cover almost all types of performance data.

Marginal gains but huge data protection implications

Because data protection law generally does not recognize personal data as a “property” right that can be owned, it cannot be licensed or assigned by an individual to a business. Therefore, one of the important considerations regarding the use of personal data is whether an entity collecting or processing that data has a “lawful basis” for doing so.

As sports clubs or associations have a direct relationship with the athlete concerned, they are often in the best position to establish a legal basis for processing performance data collected by wearable technology – for example by obtaining specific consent from the athlete. to do so or ensuring that there is a legitimate interest in processing the data (such as improving performance). However, it is important to note that there are limits to the extent to which ‘legitimate interests’ can be invoked as a legal basis.

It is important to remember that examining the existence of a legal basis is only part of the compliance picture. There are a number of other issues to consider when exploring opportunities for marketing or using performance data.

If the performance data is “biometric data”, for example, the explicit consent of the athlete concerned may be required before this data is processed, unless one of the available exceptions provided for in data protection law does not apply.

Consideration should also be given to how long the data will be stored, especially if the athlete plays a sport where they are more likely to change clubs or teams. In general, each data controller is obliged not to keep the data longer than necessary.

If data needs to be transferred from one controller to another, careful thought should be given to ensure that both controllers are protected should a problem arise after the transfer.

There are also specific use cases for performance data that may require additional steps to ensure compliance.

For example, if the data were to be used as part of an algorithm in a fully automated decision-making process without any human intervention and that process had a “legal” or “equally significant” effect on the athlete ( for example, to determine salary offers or transfer value), then care must be taken to ensure that the data subject benefits from the additional protections provided for in the GDPR that relate to these types of processes (for example, having the right to object and to request a review of any decision).

It’s clear that in a sports or performance context most decisions will ultimately be made by a human (e.g. the manager of a football club) but it doesn’t seem far off where there is enough data available to allow certain decisions to be fully automated. .

Statistical data – the fenced garden?

The collection and distribution of sporting event statistics has been an important part of the sports industry for a number of years – Wisden was first published in 1864 – but in recent years an ever-increasing number of Datasets have been widely distributed and have become part of the conversation around sporting events.

An example of this is the xG metric, which has gone from being a niche stat to being an integral part of the conversation around every football game and even a key stat mentioned on Game of the day.

This trend has undoubtedly increased the number of business opportunities available to technology providers within the sports industry, both from a fan experience and performance analytics perspective. .

Rightsholders are looking for more opportunities to use this data to engage with fans on a deeper level because, in a world with so many “distractions” vying for your attention, anything that increases the length of fan engagement can add rate.

Some athletes are also aware of the potential value of this information – for example, Kevin De Bruyne is said to have hired a data analytics firm to analyze statistical data about him to help with his playing contract negotiations.

However, there is no uniform approach to accessing this type of data. In some sports it is publicly available to anyone who can retrieve it; although this does not necessarily mean that it is not subject to license terms which may restrict or limit commercial exploitation. In other sports, it is closely watched.

Therefore, there is a major business risk for any company that builds a business on this data, as access to this statistical data can potentially be disabled at any time – either because you cannot agree to commercial terms with the ‘gatekeeper’ of the data or because the sport concerned introduces a ‘gatekeeper’ where there was none before.

Still room for growth

Although it’s already a huge industry, worth an estimated $17.9 billion (€17.4 billion) in 2021, the sports tech industry will continue to grow.

Some of this growth will no doubt come from leveraging the masses of data generated by the industry, including performance data, statistical data and even data generated by fans themselves when interacting with clubs. .

However, the use of data presents unique business and legal challenges that need to be carefully considered to ensure companies don’t get caught up in the compliance obligations that often arise from the use of data.

Companies able to meet these challenges and in a rapidly changing space will give themselves the best chance to take advantage of the growth of the sports technology industry in the coming years.

About Charles D. Goolsby

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