Navigating the Sports Biometrics Boom | Sheppard Mullin Richter & Hampton LLP
Now more than ever, access to quality data translates into monetization opportunities and this is especially true in the world of college and professional sports. Over the past two decades, data analytics tools measuring athlete health and performance have come a long way, and now it’s not just players or teams that can potentially benefit. In particular, the advent of wearable technology has produced a boom in sports biometrics that could soon become a gold rush for players, teams, universities and businesses looking to use or sell biometric data. .
However, new opportunities also introduce new risks, and anyone interested in participating will need to keep abreast of a regulatory environment that has yet to fully take shape.
how it happened
Merriam-Webster defines biometrics as “the measurement and analysis of unique physical or behavioral characteristics (such as fingerprints or voice patterns), especially as a means of verifying personal identity”. Much of the media coverage surrounding biometrics concerns issues with facial recognition technology, but wearables also collect huge amounts of other physical data every day.
Wearables come in the form of watches, rings, and now even chest straps. More than that, wearables don’t just count our steps anymore. Today, they can measure our heart rate, temperature, breathing, blood pressure, and even REM sleep cycles. Many athletes, especially those at the top level of their sport, have embraced wearables in an effort to learn more about their bodies and measure and track their health. For example, many baseball players now have the option of wearing a sleeve that measures elbow strain. When millions of dollars depend on a pitcher avoiding Tommy John surgery, it’s no surprise that players and teams want to use this technology.
While many athletes have started using wearable devices of their own volition, many teams and now even university programs have begun to encourage and sometimes even provide such devices directly to their athletes. Gamers today generally retain some level of freedom of choice when it comes to using handheld devices, but that choice may disappear as new collective agreements emerge.
In fact, some collective agreements now allow leagues to collect player data from wearable devices measuring a variety of metrics such as acceleration, heart rate, blood oxygen, and even blood sugar levels. a player, among others. Additionally, not only may some leagues require their players to wear sensors that measure this data, but some may also use this data for commercial purposes.
It’s now bigger than players and teams
For starters, a number of professional leagues have now signed deals with apparel companies. But more importantly, legalized betting across the country has produced agreements between major professional sports leagues and third-party betting organizations, and many of these agreements will allow sportsbooks to create new categories of betting using data. progress in real time. With the increasing legalization of gambling from state to state, some estimate that the size of the sports betting market in the United States will reach annual revenues of more than $15 billion by 2025.
This means anyone reading this – provided you live in one of the nearly 30 states that have now legalized gambling – will likely soon be able to rely on player biometrics to make betting decisions. In a few years, it is not inconceivable to imagine that bettors or punters could turn to biometric data regarding a player’s blood pressure or oxygen saturation to predict whether a key player has contracted a disease that kick him out of a game. Or maybe basketball players wear “smart” sleeves that track shooting mechanics and thus could help predict a bad shooting night. Additionally, betting on in-game props could even allow bettors to bet directly on the biometric data itself. For example, anyone might be able to bet directly on a player’s heart rate while shooting free throws.
The commercialization of sports biometrics raises a number of legal issues.
Who owns this data?
Presumably, individual gamers possess the biometric data recorded on their personal clothing. But these rights can be transferred within the framework of the collective agreement of a league or in the contract of a player with his team. Alternatively, if a team lends portable devices to its players, the teams could potentially claim ownership of the data. Or, another way players can lose ownership of their data is if they sell it to a third party. However, if a player sells their data with the knowledge that it could lead to asymmetric information impacting betting markets, sharing this information could potentially be construed as impermissibly facilitating gambling, and therefore could constitute a violation. league rules.
What responsibilities come with accessing or acquiring another’s biometric data?
If teams or universities appropriate the biometric data of players, it is unclear what responsibilities they will assume. For example, some argue that biometric data is not governed by the Health Insurance Portability Act (or HIPAA), while others suggest that it is and that team medical staff may need to comply with the rules of HIPAA Privacy and Security. In addition, access to a player’s biometric data could impose a legal obligation to inform the player of any data suggesting a health problem.
Teams may also have to closely monitor and sometimes resend or destroy biometric data. For example, in the state of Washington, “a person who knowingly possesses a biometric identifier of an individual who has been enrolled for a commercial purpose…(a) shall take reasonable precautions to guard against unauthorized access and the acquisition of biometric identifiers that are in the possession or control of the individual; and (b) may retain the biometric identifier for no longer than reasonably necessary RCW 19.375.020(4) .
Additional questions arise if a league sells players’ biometric data to a gaming operator, but the wearable produces erroneous data that alters the outcome of a bet. Even if aggrieved bettors do not have a strong case, they can still bring a class action lawsuit against the portable company, league and/or gaming operator.
Does the right of publicity apply?
Many states have right-to-publicity laws that prohibit the use of a character’s likeness in a commercial context without consent. For example, California Civil Code Section 3344 imposes liability on “any person who knowingly uses another’s name, voice, signature, photograph, or likeness” for commercial purposes without their consent. § 3344(a). If biometric data can reveal a player’s distinctive features or mannerisms, the right to publicity could protect the player against unauthorized commercial use of that player’s likeness.
On the other hand, the use of a player’s likeness could be considered “newsworthy” and protected under the First Amendment. In Daniels vs. FanDuel, Inc., 109 NE3d 390, 398 (Ind. 2018), the Indiana Supreme Court – interpreting Indiana’s Right to Publicity Act – held that gambling websites’ use of statistics about athletes in their fantasy sports offerings was protected on “newsworthy” First Amendment grounds. However, unlike traditional statistics that any third party could observe (e.g. batting average), biometric data can reveal hidden information and patterns to any third party observer of a player’s performance (e.g. low heart rate when shooting free throws in the fourth quarter). ). While a player with an incredibly low heart rate in pivotal moments could be considered newsworthy, this data will only be available if the player publicly discloses it or otherwise sells the data to someone who does.
What about biometric privacy laws?
Just as federal health privacy laws — some legal experts say — might not control the collection of most athlete biometric data, state biometric laws might also not apply in the sporting context. Today, states such as Texas, Illinois and others have implemented biometrics laws that limit the definition of biometrics to “a retina or iris scan, fingerprint, voiceprint or scan of hand or facial geometry”, and these definitions may not encompass the type of biometric data currently collected by athletes and teams.
However, some state laws are beginning to broaden the scope when defining “biometrics”. For example, the Washington State Biometrics Act defines biometrics as “data generated by automatic measurements of an individual’s biological characteristics, such as a fingerprint, voiceprint, eye retinas, iris, or other unique biological patterns or characteristics which is used to identify a specific individual. RCW 19.375.010 (emphasis added). Going further, under the California Consumer Privacy Act, “biometric information” includes, among other things, “an individual’s walking patterns or rhythms, as well as sleep, health, or exercise data. that contain identifying information”. Civil Code CA § 1798.140(b).
As the widespread use of biometrics in sport is only beginning to be better understood, it is possible that future laws will continue to broaden their scope or perhaps even expressly include common biometric data types in the sport.
The law is still catching up with the commercialization of biometrics in sports, but athletes, teams and companies looking to profit from the monetization of this data should remember that these opportunities are not without risk. While the legal issues mentioned above are numerous, they are certainly not exhaustive and it remains to be seen how courts apply new or existing laws in this particular context. In the meantime, anyone whose data may be used or anyone wishing to use such data should seek legal advice, as each unique situation may require a personalized approach.