Physiological and performance data in sport and the legal issues it raises
Published 15 August 2019 By: Abhinav Shrivastava
The following article is an extract from “MINE: The Future of Data Rights in Sport”, a comprehensive guide to sports-related data and how it is treated under the Indian legal system. The report was produced by The Sports Law and Policy Centre (Bengalura, India) and the full version is available to view on their website.
This article examines the interests at play and the potential balances that may be considered in the matter of the collection and use of Athlete physiological and performance data in sports engagements. Specifically, it looks at:
- Types of data
- Ownership and control
In any sport event, the participating athlete’s observable performance across the event is reducible to statistical data sets, such as points/runs scored, goals scored, assists made and wickets taken. These serve to determine and record the result of the event, as well as peg the performance against other participants or competitors for training, athlete ranking or selection. However, increasing integration and use of technology in recording and analysing the event has enabled the generation of more granular data sets, such as distance run, heat-maps and reaction time, allowing for the generation of insights and data on the athlete’s fitness levels and temperament.
Alongside observational data, the influx of technology into sport in recent times through the advent of motion trackers, compression vests and heart rate monitors and new testing methodologies, including gene testing, has enabled the collection of specific physiological data and trends at rest, in the course of training or during a match. When mixed with observational data collection, a near complete profile of the athlete’s performance and potential can be created.
While the collection of the data is for specific purposes, such as result determination or ranking in the case of observational data, or fitness and injury management in the case of physiological data, the aggregation of such data for the generation of a composite athlete profile and use of this profile for analysis and insights raises the risk of data-use for purposes that are potentially adverse to the interest of the athlete (such as for strategic decisions or pay-cuts), and raises key issues of adequacy of consent, informational rights and purpose limited use, and ownership of athlete performance data.
TYPES OF DATA
Performance statistics are collected through the observation of the athlete performance in the match, and so comprise of factual data that can be collected through in-stadia or broadcast viewing.
The collection of performance statistics is essential to the determination of the event result and the recording of the facts relating to the event. As these performance statistics are generated and collected in the course of participation in sports competition, the athlete’s consent to its use for event result determination and recording, and purposes attendant to such participation, like comparisons and ranking (especially for selection purposes), is a necessary condition to participation in the event. Such performance data can also be aggregated across events to create career profiles and determine performance trends and progressions.
However, this data presents measurable values of speed, distance covered, reaction time, and other data sets that can be employed to quantify physiological data that indicates the athlete’s fitness levels, stamina and physical capacities across the event – information which is innately personal to the athlete and is situated in the body and physical attributes of the athlete.
Does the athlete’s consent granted to participate in the event stand extended to cover tertiary uses, like performance tracking and fitness levels and physiological information determination?
Further reading: How are wearables changing athlete performance monitoring? Forbes, 30/11/2018
Typically, physiological data is collected using a mix of observation, invasive testing and technological tools. Some techniques of collection are invasive such as requiring an athlete to provide blood samples or wear a device such as a motion tracker or sensors on his/her person or may involve the use of devices such as smart bats or GPS trackers.
Invasive testing and technological tools involve direct physical engagement with the body of the athlete or his/her equipment, and involve a direct infraction of the athlete’s privacy. While observational data collection relies on tools that are external to the body of the athlete, they involve measurements of the athlete’s fitness and bodily function, which is information that is personal to the athlete.
The information collected through such tools would also comprise of information that is personal to the athlete, such as blood-oxygenation levels, heart rate, breathing rate, body composition and sleep patterns, which is information over which the athlete generally has an expectation of privacy and non-interference. Thus, for body sample testing and the application of technological tools and collection of personal data therefrom, the athlete’s consent is a necessary step and the athlete has an interest in ascertaining the personal information being collected and the purposes for which the information is intended to be used.
Further reading: Ethics of tracking athletes’ biometric data, MedicalExpress, 18/01/2017
With the decoding of genetic sequences, and the identification and linkage of specific gene-markers with specific physical attributes, blood and saliva samples can also be employed to determine the individual’s genetic predisposition to certain illnesses and the propensity to bear certain physical and psychological characteristics. Genetic material is innately personal and representative of the body composition of the host, and thus the athlete would have an expectation of privacy over its collection and use.
Further reading: In the blood: How DNAFit is using gene testing to prepare Egypt for their World Cup return, SportsPro, 14/03/2018
With the range of analyses and derivable data, a key concern is whether the athlete has been informed of the potential uses of the collected samples and physiological information and has been granted an opportunity to withhold consent or if such consent is implied by virtue of an existing relationship with a team, club or sports governing body?
Technological tools are also engaged in agnostic data collection without purpose or nature limitation, which raises the risk of incidental collection of extraneous data, such as pulse-heart beat data from a wrist-borne wearable. While the consent of the athlete would be for the collection of certain specific data sets or data sets for specific purposes, would this consent be extendable to such incidental data collection, as its an inadvertent consequence of the technology or can the athlete refuse the application of the wearable? Does the athlete have a right to access to the code or architecture of the wearable to check on the extent of data collection or is such a demand unreasonable and unworkable considering the confidential and proprietary nature of this code and architecture? If the athlete allows for the administration of the technological tool, can he/she insist on the deletion of extraneous data in exercise of his/her privacy rights?
The purpose of collection of this information is to analyse and improve the performance of the athlete, but such collection is not essential for determining the athlete’s eligibility to participate in the sports competition. Thus, it is arguable that there is no overriding legitimate interest that would enable a club or sports body to mandate the collection of such information as a condition to participate in the sports activity or render the athlete ineligible to participate in case consent is withheld. However, if this data informs selection decisions, would an athlete realistically be able to withhold consent if the athlete is effectively penalised by not being selected to participate in sports events and would that render the athlete’s consent as a mere procedural formality?
Even if such consent is fairly sought and the athlete is explicitly assured that he/she will not suffer any negative consequences from refusal to provide consent, would the athlete be informed upfront of all possible uses of such personal data and how such data is likely to be processed? Can any mechanism be put in place to ensure that personal data is used only for the purposes that have been promised?
Further reading: The Tricky Ethics of the NFL’s New Open Data Policy, Wired, 29/03/2018
What is the extent to which an athlete can restrict collection and processing of his/her physiological data through the exercise of his/her privacy rights? Are there larger public interests that legitimise the overriding of the athlete’s privacy rights?
OWNERSHIP AND CONTROL
With performance statistics, the performance data represented in scores, timings and outcomes generated from match play are generally incapable of ownership by themselves.
However, the tracking and measuring of the performance, and rendering the factual data into appropriate data sets and categories, i.e., the act of educing the performance into data sets for result generation or comparison is an active engagement that renders the performance into a tangible record. This tangible record is capable of claims of ownership and title in the hands of the creator of the record.
As certain performance statistics also relate to the athlete, and form part of his/her career profile and record, does/should the athlete have any claim or interest in them, as an aspect of the athlete’s personality rights or privacy rights?
Aside from the athlete and record generator’s claim, the data itself arises out of the match, with the event organiser engaged in managing and administering access to the match and match content through contractual terms. These contractual terms would govern the event organiser’s relationship with participating athletes as well as with the audience members, official partners and other rights holders in the event. In such circumstances, does the event organiser have a right or interest in the athlete data or performance statistics, as part of its claim over event data?
Further reading: With wearable tech deals, new player data is up for grabs, The New York Times, 10/09/2016
Once physiological data is collected and a data record created, it is important to understand who owns this data record. Is it the athlete whose data is the subject of collection, the analytical or wearables company/machine operator that generates the record, or the sports governing body/club commissioning the collection of such data?
Ownership over the record is an important aspect of the relationship between the parties as the owner of the data has the first right to control its usage and disclosure. This question encompasses not just data collected from wearables but also athlete data that is collected from medical examinations of the athlete, such as electro-cardiograms.
Athletes assert ownership rights over such data as it relates to information that is personal to them and is an aspect of their bodily autonomy. Such assertion also allows athletes to oversee the disclosure and potential use of such data, and subject the use of such data to conditions.
How wearables are changing performance monitoring, Forbes, 22/07/2018
Periods - how do they affect athletes & why are they monitored?, BBC Sport, 21/05/2019
The National Football League Players Association (NFLPA), a representative body for National Football League (NFL) athletes, in 2017 entered into a partnership with WHOOP, a wearable technology company, under which the NFLPA allowed for the use of WHOOP straps to measure athlete physiological information subject to the condition that the NFL players will own and control the data collected with the WHOOP strap.
As against the athlete’s claims of ownership of the record, as the administration and collection of the data occurs at the behest of the team or governing body, they claim ownership over the data records as commissioned works, with the athlete’s role limited to that of an analytical subject. Similarly, the wearables company is the creator of the record, and thus would be well placed to claim first authorship rights over the record.
In the face of multiple ownership claims over the data record, one means of securing the athlete’s interest in physiological information is to allow for the ownership of the record to be determined by contract while securing the athlete’s right of access to the data records and to be adequately informed of the nature and purpose of the data’s collection.
Further reading: Player tracking data is next step in NFL’s analytics revolution, ESPN, 23/8/2018
MIB and NBA Model
The Major League Baseball (MLB) and National Basketball Association (NBA) collective bargaining agreements do not concern themselves with determining ownership over the data. Instead, they focus on ensuring that the athlete’s right of access and information rights are respected, and data uses that are adverse to the interests of the athlete are restricted. Thus, these arrangements mandate that wearables be approved by the player association (after determination of the data being collected on them) and that the athlete be provided full access to all data collected from the use of approved wearables.
These arrangements also require teams to inform the athlete of the intended use of the data and the scientific basis for its use for this purpose, with the NBA Collective Bargaining Agreement specifically requiring teams to provide the player with a written confidential explanation of: (i) what the device will measure; (ii) what each such measurement means, and (iii) the benefits to the player in obtaining such data (i.e., the science behind the measurement and its inended usage), and restricting teams from utilising such data in contractual negotiations or for strategic outcomes against the athlete.
Further reading: Wearables in the starting lineup for NBA and MLB? NetworkWorld, 07/03/2017
Is the balancing of the athlete’s interest and sports body’s interest in physiological data better served by determining ownership of the record or by applying norms of informed consent and restrictions on usage and disclosure?
Athlete performance data can emerge from a direct measure of the athlete’s observable performance, and allows for the generation of progression trends and form, as well as determination of the impact of training methodologies.
While performance data measures the physical and observable characteristics of the athlete, athlete physiological data serves to provide information that is innate to the athlete, such as the athlete’s reaction time, stamina, heart rate, speed and fatigue levels, as well as information about the athlete’s temperament or reactions to particular stimuli.
Genetic data is a more invasive level of user data, and it describes the innate physical characteristics of the host, and presents itself as a means of estimating physical ability and propensity to bear desirable attributes, as well as to indicate deficiencies and potential inhibiting factors to performance.
Performance and physiological data are valuable data sets, which when aggregated and combined, provide insights into the athlete and his/her body composition and innate characteristics. This data is a useful means of creating directed fitness and dietary plans attuned to each athlete’s unique characteristics and physiology, and thereby enhance athletic performance, predict predisposition to injuries, identify and address innate deficiencies, and design appropriate training and recovery regimes, which are beneficial to the interest of the athlete.
What Baseball Can Teach You About Using Data to Improve Yourself, Harvard Business Review, 15/07/2019
Performance and physiological information also allows for the generation of a richer profile of the athlete and determine his/her innate predisposition to develop desirable or undesirable characteristics. Thus, it would enable better estimation of the potential professional career term and potential performance levels of the athlete in relevant sports. This would make it a valuable measure for selection decisions and funding decisions and enable efficient utilisation of available and finite resources and capacities, in terms of monetary funding as well as infrastructure capacity and trainer time.
These potential uses of athlete data are beneficial to the interest of the club or sports body, and are attuned to maximise the benefit derivable from available resources, but could operate to exclude the athlete from further participation and thereby be adverse to his/her interest.
As the athlete’s consent is the basis of the collection of such physiological information, can the athlete restrict the use of such physiological information for selection making decisions while permitting it for performance enhancement and personal growth? Instead, is there an overriding interest to ensure competitiveness in the sport and the fielding of the best available players in a competition that allows the sports governing body to use this data for the purpose of making selection decisions?
With selection decisions made on the basis of athlete data, particularly genetic data, and selection decisions determining an athlete’s progression in a sport, what threshold of scientific certainty and
linkage of physiological characteristics with performance is necessary to legitimise the use of the data for selection? Does the athlete have a right to know the physiological information used and seek substantiation of the scientific linkage underpinning the decision?
CHANGING THE GAME: The Rise of Sports Analytics, Forbes, 18/08/2015
China will begin using genetic testing to select Olympic athletes, Newsweek, 31/8/2018
Funding for training athletes can significantly rely on public resources, which are a public good and there is a legitimate right and interest to see fair and efficient utilisation as well as information on usage. In the matter of funding decisions, does the mandate of ensuring fair and efficient utilisation override the athlete’s privacy rights and allow unqualified access to the athlete’s physiological information while evaluating fund allocations? Is there a right to demand disclosure of such physiological information to ensure probity in public funds utilisation?
Is the threshold lower if the use is for making fund allocations alone, as the exclusionary impact of the decisions is lower, or does the decision effectively exclude the athlete from further participation due to lack of resources?
Further reading: One club wants to use a gene-test to spot the new Ronaldo. Is this football’s future?, The Guardian, 26/04/2008
As the monitoring of physiological data displays trends and improvements, its periodic collection and tabulation allows for detection of suspect or rapid improvements. Thus, can sports bodies, clubs and anti-doping agencies legitimately seek access to physiological data records, immaterial of athlete consent, to check and action athlete doping in the interests of fair competition?
Further reading: Has the biological passport delivered clean or confused sport?, BBC Sport, 12/11/2014
While some physiological data can be derived from performance data, certainty and granularity of measured values of physiological data requires preferential access to the athlete’s person. As the athlete’s consent for collection would be based on its beneficial uses to the athlete, such use of preferentially accessed data in a manner adverse to the interest of the athlete would be beyond the consent granted by the athlete, and would thus be an infraction of the athlete’s privacy rights.
In the case of the club or sports body however, its valuation of the athlete’s engagement is based on an estimation of the potential career term and contribution of the athlete to the team’s performance, and in effect represents a monetary investment in the athlete’s sports career. In such circumstances, is the club or sports body entitled to access the athlete’s physiological information records as a means of completing its due-diligence and removing information asymmetries that would have a commercial bearing on its transaction with the athlete?
With tactical or strategic use of such information, on account of the preferential access to such information, its use would potentially provide the club or sports body with an advantage over the opposing team and adversely affect fair competition between participating teams and, thus, there is legitimacy in restricting the use of physiological information for these ends. However, in ensuring such restriction, is it legitimate for the athlete to demand the transfer and/or non-use and/or deletion of these records on cessation of his/her engagement with the team, and does the club have a right to refrain from transferring these records to a potential opponent as these records were commissioned by the club and such access would be adverse to its interest? With deletion, does a club have a legitimate claim to retain the record as it commissioned the record, or for historic reference and analytical purposes, including doping investigations?
Further reading: Revealed: How data analytics is giving top players like Federer and Djokovic another edge on their rivals, The Telegraph, 01/07/2019
There is potential for monetisation of such insights as well, through the licensing of profiles for enhanced consumer engagement with the event broadcast, sports analytics, virtual sport games and augmented reality experience offerings. In this case, is it legitimate for the sports body or club to claim all the benefits of such licensing, by virtue of being the commissioner and controller of the record, or is the athlete entitled to a share of the licensing revenue as the record arises out of his/her persona and physiology?
Athlete data thus carries immense value to participants in the sports ecosystem, from sports governing bodies looking to assess future prospects for a particular sport, clubs in the midst of a contract negotiation, anti-doping authorities looking to curb new methods of illegal performance enhancement, brands looking to associate themselves with athletes, to broadcasters looking to enhance the fan viewing experience or incorporate such data as part of their virtual reality or augmented reality experience.
Further reading: How virtual reality is transforming the sports industry, TechCrunch, 15/09/2016
Can the athlete restrict all uses of such data that are adverse to his/her interest, even if the intended use seeks to preserve the integrity of the sport? Can an athlete require transfer or deletion of such data at his/her direction?
POINTS TO PONDER
Does the athlete have a meaningful right to deny consent for collection of physiological information, as such information would inform selection decisions?
Is the grant of ownership rights in his/her physiological data record central to securing the athlete’s right and interest to bodily autonomy?
In what circumstances can a sports body assert usage rights over the physiological record without the need of athlete consent?
How do we reconcile the interests of the athlete and sports body to the extent they diverge and are at odds? What ethical criteria and legal principles should we apply to determine rules and standards of engagement between the athlete and the sports body?
EXAMPLE CASE STUDY
Mukesh Behra is a 36-year-old fast bowler who plays for the Delhi Dashers cricket franchise participating in the Apex Premier League. The Delhi Dashers team management is considering renewing Mukesh’s contract with the team. Mukesh’s surgery records and his general fitness records are in the possession of his State Cricket Association (SCA) and the National Cricket Board (NCB). Mukesh still plays international T20 cricket for his country, hence treatment records pertaining to his knee have been shared by the NCB with the team doctor for pre-emptive care, given he has had some niggles in the past. The Delhi Dashers team management, while negotiating his renewal contract, have sought access to all of Mukesh’s medical records and past fitness data from Mukesh, SCA, NCB and the team doctor.
Separately, the team has, in the past, required all players to wear heart-rate monitors so that their team doctor can analyse their on-field health and risk to injury. An analysis of Mukesh’s heart rate monitor by the Delhi Dashers medical staff has shown an unusual spike whenever he is required to bowl to left-handed batsmen in the death-overs, indicating anxiety. Mukesh has also been approached by another cricket franchise, Hyderabad Warriors, for engagement after the expiry of his current engagement with the Delhi Dashers. His prospective new team have asked Mukesh for access to his medical records and wearables data, along with any reports created from such data, held by the Delhi Dashers, in order to consider whether they wish to make an offer to Mukesh.
Questions to consider:
Under what circumstances and conditions should medical records of an athlete be shareable between affiliated organisations, here the Delhi Dashers, the SCA and the NCB? How much say should Mukesh have in when and how the information is shared?
Are there any constraints on the inter-se sharing of medical records within an organisation, such as the Delhi Dashers, and does Mukesh have any actionable privacy rights to restrict the use of his data as he chooses? Specifically, should the medical staff have the right to share injury and wearables data with coaching and managerial staff without Mukesh’s consent?
Can the Delhi Dashers assert ownership over Mukesh’s medical records and wearable data records which were generated during the course of Mukesh’s engagement with them? Can this data be used by Delhi Dashers during the contract renewal negotiation process? Can the Delhi Dashers offer Mukesh’s medical data and records to others, including competing teams, for a fee?
Can the Delhi Dashers claim copyright in the insights generated from the records and data, on the basis that these represent intellectual effort commissioned by the Delhi Dashers?
The Sports Law and Policy Centre would like to thank the following persons for their contribution and assistance in preparing the Report: Nandan Kamath, Roshan Gopalakrishna, Abhinav Shrivastava, Seshank Shekar, Shibumi Raje, Nihal Zachariah, Shan Kohli, Kruthika N.S., Ankit Suri, Lokesh Kaza, Parvati Bhat, Vani Sasidharan, Narayan Gopalan.
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- Tags: Athlete Welfare | Collective Bargaining | Cricket | Data | Employment | Football | Governance | India | Intellectual Property | Major League Baseball (MLB) | National Basketball Association (NBA) | Regulation
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Abhinav Shrivastava is Counsel at LawNK, a Bangalore based boutique law practice specialising in sports, media, technology and intellectual property laws. He heads the Privacy and Data Protection practice at LawNK, and is a graduate of Kings’ College London and NALSAR University of Law, Hyderabad.