BEYOND THE GADGETS: REGULATORY AND LEGAL CONSIDERATIONS FOR WEARABLE TECHNOLOGY IN SPORTS – Steve Austin Nwabueze

The Covid-19 pandemic brought a lot of innovation in its wake not only in the pharmaceutical industry but in sports as well. By the end of February 2020, a lot of countries had imposed lockdowns in some cities.  By Friday, March 13, 2020, the Italian Serie A, the German Bundesliga, the French Ligue 1 and the Dutch Eredivisie had all suspended their respective leagues.  The Premier league was eventually forced to do the inevitable by the end of March 2020 after postponing a number of games and ultimately suspended the games in the Premier League till April 3rd, 2020. With Covid-19 hot on the heels of sports and sports events, the next challenge was how to ensure the playing staff of teams in the major football leagues and even the NBA maintained an acceptable level of fitness and at the same time, comply with the safety protocols in the league. One of the biggest challenges has been ensuring physical distance between teammates in training in what is a high intensity, contact sport.

Newcastle United is one of more than 50 sports teams across the world using “Proximity Report”, from sports technology company, Catapult Sports. The feature generates reports detailing how long a player has spent in close proximity with teammates. Should a player test positive for COVID-19, the club will know which players he has been in contact with, for how long, and even during which specific training drill or exercise. “Teams can upload their planned training schedules and immediately understand the volume of contact players will undertake during that training session,” Will Lopes, CEO of Australia-based Catapult, said. [1]This development has unsurprisingly, generated a raft of data for not only the teams but for statisticians and sports scientists.  Back in the 2015/2016 football season when Leicester City Football club won the league, for the first time in 100 years, football teams in the league were allowed to use wearable devices during matches for the first time.

Unbeknownst to most viewers, fans and even rival teams, certain players wore tracking devices that recorded every metre they ran, every turn they made and how fast they accelerated. This data was processed and stored so it could be compared with previous matches and training sessions. Coaches have been able to track their players’ physical conditions and performances and ultimately, make important tactical in-game decisions during trainings and matches.

Wearable technology is infiltrating the sports world in astronomical proportions and will continue to do so for the foreseeable future. Thus, the major question for sports administrators, league bodies, businesspeople, legal scholars, lawmakers, fans and other sport stakeholders is: is wearable technology the ‘new normal’ in sports? Are there legal considerations underpinning this practice? Put differently, are there legal implications of this practice that sports teams and league bodies need to be aware of in adopting this new phenomenon?. What is the implication for athletes’ individual rights and the demands of fair competition?

This article will analyze these issues, and address (1) the history and development of wearable technology and (2) the legal implications of wearable technology in professional sports.

History of wearable technology in sports

Wearable Technology in sports is a relatively recent development. It was used for the first time in live sports beginning in 2009. It began with a European soccer club tracking the overall workload of players during games.[2] This development allowed coaches the real-time ability of monitoring biometrics.[3] Since then, wearable technology has  evolved from biometric monitoring to the inclusion of perceptual and psychological aspects of sports.[4] Through the utilization of these products, the ability to reduce potential injuries related to concussions, brain trauma, exhaustion, injured muscles, tendons, and ligaments in addition to various illnesses is greatly increased.[5] In short, the idea behind wearable technology is that certain technologies can help keep athletes safe and healthy. This theory has been tested and proven successful. One example can be illustrated by the Toronto Raptors. In 2012, the Raptors had the most injuries in the NBA.[6] Shortly thereafter, they implemented wearable devices and began monitoring soft tissue.[7] As a result, in 2014, the Raptors had the least injuries in the NBA. The immediate foregoing is just one of the few advantages of adopting the practice.

Are there over-arching legal concerns that sports administrators and league bodies should bear in mind while adopting this practice?

In football, they are technically referred to as “Electronic performance and tracking systems (EPTS) devices” and they include camera-based and wearable technologies used to control and improve player and team performance.[8] EPTS primarily track player and ball positions but can also be used in combination with microelectromechanical devices and heart-rate monitors as well as other devices to measure load of physiological parameters. The three forms of physical tracking devices currently available are: 1) optical-based camera systems, 2) local positioning systems (LPS), and 3) GPS/GNSS systems. GPS devices are used during training for the English Premier League as well as The Football Association (FA). The use of these devices must be in harmony to respective governing bodies.

GPS/GNSS satellite systems are worn on players’ backs (attached to a skintight fixture) and data will be tracked through satellite. The benefits include high number measurements, short installation time, and no need for an operator. Its shortcomings include discomfort to the player during match day, the visual of a satellite in the stadium, and accuracy concerns of measured data.[9] In March 2018, members of IFAB and FIFA unveiled the EPTS protocol.[10]

Wearable technology and athletes’ rights

Unlike collegiate and amateur sports where there is no centrally negotiated collective bargaining agreements with player unions and/or associations that ensure that the best interest of the athlete is protected, some professional leagues have comprehensive standing agreements that define the ambit of the wearable technology allowed per season. Some professional leagues like the MLS, MLB, NBA, EPL, La Liga etc. have structured player’s organizations and associations. In professional leagues, when data is sold, it is to be subjected through the collective bargaining processes and protocols.[11] To understand the practical application of this principle, it is pertinent to take a cursory look at the prevailing collective bargaining agreements in some professional sports and the extent of protection offered to professional athletes. In the National Football League (NFL), Major League Baseball (MLB), and National Basketball Association (NBA) players commonly disclose medical information about themselves. Additionally, in these sports, players are currently wearing wearable technology devices in their gear including on-field sensors.[12] However, in the NFL, the requirement of wearing sensors is left on the field. Recently, the National Football League Players Association (NFLPA) filed a grievance claiming that the NFL and teams should not be able to track players sleeping patterns, because the collective bargaining agreement does not include authorization that allows monitoring off the field.[13] Greg Aiello, an NFL spokesperson responded that the sleep sensors being worn by the players were completely voluntary.[14] Aiello claimed players had the interest in wearing the sensors to improve their performance.[15] According to Aiello, he is unsure why the NFLPA has an issue with the technology players chose to utilize.34 However, it is likely that the NFLPA has concerns for the future, and does not want to set a dangerous precedent that may be adverse to their future interests. Additionally, if the NFL wants to use the information, they have recorded through any sensors on the field for information related to medical purposes, they must seek permission from the NFLPA. An example of this is shown in the NFL with Zebra sensors. Currently NFL players are required to wear Zebra sensors in their shoulder pads.[16] These Zebra sensors have been deemed non-invasive due to the fact that the sensors only track information pertaining to location, acceleration and speed during games.[17] None of those listed metrics are considered to be protected or private information.  [18]However, the NFL collective bargaining agreement expired in 2020, in the thick of Covid-19 and it is interesting to see the new provisions and how some of these issues would be addressed.

For the NFL, the NFL Players’ Association reached an agreement sometime in 2017 with a human performance company named WHOOP.[19] This agreement with WHOOP allowed players to sell their data, giving the players the ability to push back against the NFL.[20] The NFL Players’ Association seems not only optimistic about their ability to protect athletes’ privacy, but also eager to allow them the ability to benefit immensely on a personal and financial level from the information.

In the Premier League, The PFNCC is the forum in which discussions take place between the Premier League, the PFA and the FA. It is through dialogue between the parties within the PFNCC framework that consensus and agreement is reached on the standard terms and conditions of professional football players and the rules passed by the FA and the Premier League that directly or indirectly impinge on the employment of professional football players. The PFNCC is constitutionally independent of the regulatory and governance framework of the FA, the Premier League and the PFA.[21] Whilst it is difficult at the moment to ascertain the exact contents of the collective bargaining agreement in the EPL on wearable technology, it cannot be gainsaid that the Covid-19 pandemic has expanded the ambit of the use of these devices. With devices ranging from wearable monitors to clothing and equipment with embedded sensors, professional teams, league bodies, as well as the companies that provide the wearables, can now collect massive amounts of data such as an athlete’s heart rate, glucose level, breathing, gait, strain, or fatigue. On the surface, this data may appear innocuous and may relate to an athlete’s performance and overall wellness, which may be somewhat apparent to onlookers without the aid of the device. However, alone or aggregated, the data may reveal more sensitive personal information relating to the athlete’s identity, location, or health status, information that cannot be obtained just by closely observing the individual. When organizations collect, use, share, or store this data, it creates certain privacy and security risks and numerous international regulatory policies and data protection laws may apply. Any sports or athletic organization that develops a wearable device program or has reason to believe that these devices are being used by coaches and others to collect similar data, should be mindful of these risks and regulatory issues.[22].

Depending on jurisdiction, consent may or may not be required for monitoring. Judicial decisions on the issue are almost nonexistent However, the overriding jurisprudence on the issue appears to be that an athlete’s expectation of privacy is minimized when on the team’s premises or when using company/team equipment.[23] The cases of City of Ontario, Cal. v. Quon and O’Connor v. Ortega are just a few of the decisions to the author’s knowledge where it was held that an employee may lack an expectation of privacy in provided technologies from their employer. The latter case stated that it was dependent on the realities of the workplace. In situations where there are binding collective bargaining agreements duly negotiated by the players’ unions, there may be very little issue since the player’s interests would be amply protected. However, where the players are neither involved nor represented in negotiating the applicable wearable technology, legal issues may arise. One school of thought is of the view that athletes have lesser privacy compared to many other people, as this is merely a detriment of their chosen activity or career path.[24] In Bilney v. The Evening Star News, a group of Maryland basketball players sued a newspaper over the invasion of privacy when their academic records were reported. [25] The court concluded that this was not an invasion of privacy because they were public figures on the basketball team.[26]Accordingly, due to their public figure status, the players did not have the same privacy luxuries afforded to them as other students. In sum, the basketball players were not entitled to experience the same level of expectation of privacy as a common student would because they were public figures representing their team and university. An additional reason advanced by the courts is that athletes have a diminished expectation of privacy due to the frequency of sharing their personal information daily. [27] Players interact with coaches, trainers, and other members of athletic staff frequently, and the level of interaction is quite intimate. The courts have held that due to this regular interaction, players are not entitled to experience an expectation of privacy for certain types of shared information. An added complexity to this decision is what happens where, say, a manager of the team resigns or leaves the team but still possesses data and information of former players in his team and seeks to use them to the advantage of his new employers?

The Nigerian context

The Constitution of the Federal Republic of Nigeria and the Nigerian Data Protection Regulation (NDPR) governs the privacy and use of data of Nigerians- this no doubt include Athletes, Sport Professionals and other relevant regulators in the Sports profession in Nigeria.[28] The NDPR applies to natural persons residing in Nigeria or residing outside Nigeria who are citizens of Nigeria and to all transactions intended for the processing of Personal Data notwithstanding the means by which the data would be processed.

Hence, Sports Administrators and Professionals in the use and operation of wearable technology must strictly adhere to extant laws. Sports Officials (or where applicable the Data Controller or Administrator) must obtain the express consent of the Athletes (Data Subject), such consent must be freely given and reflect an unambiguous indication of the Data Subject’s wishes through a statement or a clear affirmative action. Furthermore, where the sports regulators, the league bodies or club proprietor wishes to transfer the data of the athletes to a third party for processing, such transfer must be governed by a written contract between the third party and the transferor.[29] Considering the international and multi-jurisdictional sphere of sports, foreign clubs and administrators may require the data of Nigerian players derived from wearable technology in Nigeria, the law requires that the consent of the Attorney- General of the Federation must be sought and obtained before such transfer to a foreign country or an international organization except where the player expressly consents or the transfer is necessary for the performance of the contract between the player and the employer or for reasons of public interest[30].

Therefore, the use of wearable technology in Nigeria imposes an obligation on the regulator, the league body or to develop measures to secure the data and privacy of Athletes against all foreseeable hazards and breaches such as theft, cyberattack, viral attack, dissemination, manipulations of any kind of damage.[31]

As a postscript, teams and organizations may need to enhance their policies and security protocols. This would be in an effort to ensure compliance with data collection and limit their scope, protecting their vulnerabilities and decreasing liability. They may include frequent background checks in addition to extensive screening for anyone who works in areas that have access to confidential wearable devices and collected information. [32] Teams will likely also have to ensure compliance with top-notch cyber-security devices, as the security risks that are associated with the collection of data through technology increases. These risks include the potential of hacking, manipulating data for personal use and gain, cloud storing, and processing. The information that can be gathered through wearable technology has significant value to marketers, and would ultimately, become a fertile ground for litigation in the future if more regulations are not put in place to address some of these issues.

 

[1] https://www.forbes.com/sites/robertkidd/2020/06/16/newcastle-united-turns-to-wearable-technology-for-safe-premier-league-return/?sh=6f2adac16dce

[2] Ohio University, How Wearable Tech is Transforming a Coach’s Decision-Making, https://onlinemasters.ohio.edu/blog/how-wearable-tech-is-transforming-a-coachs-decision-making( last visited January 31, 2022

[3] ibid

[4] ibid

[5] ibid

[6] ibid

[7] ibid

[8] https://football-technology.fifa.com/en/media-tiles/electronic-performance-and-tracking-systems-epts.

[9] EPTS Electronic Performance and Tracking Systems (See https://football-technology.fifa.com/en/media-tiles/epts/).

[10] https://www.lawinsport.com/topics/item/a-comparison-of-sports-regulations-on-the-use-of-wearable-technology-data-collection?tmpl=component&print=1

[11] BOSU, Michigan-Nike Contract: The School Seizes and Sells New Player Data, (Aug. 31, 2016), https://brewonsouthu.wordpress.com/2016/08/31/michigan-nike-contract-the-school-seizes-and-sells-new-playerdata/(last accessed on January 31, 2022

[12] Thor Olavsrud, The Internet of Things comes to the NFL, CIO (Sept. 7, 2015), https://www.cio.com/article/2980853/the-internet-of-things-comes-to-the-nfl.html.

[13] Liz Mullen, Sensor Tech Has Attention of Leagues, Unions SPORTS BUSINESS DAILY (Nov. 2, 2015), https://www.sportsbusinessdaily.com/Journal/Issues/2015/11/02/Labor-and-Agents/Sensors.aspx.

[14] ibid

[15] ibid

[16] Nikole Tower, who is Monitoring Data from Wearable Technology? Global Sport Matters

(Sept. 11, 2018), https://globalsportmatters.com/science/2018/09/11/who-is-monitoring-data-from-wearable-technology/.

[17] Olavsrud, supra note 30.

[18] See Jonathan Vanian, Inside the NFL’s Big Data Play, Fortune (Sept. 11, 2015),

[19] Kevin Seifert, NFL Players Grab a Data Equalizer in Era of Wearable Technology, ESPN (Apr. 24, 2017), https://www.espn.com/blog/nflnation/post/_/id/235806/nfl-players-grab-a-data-equalizer-in-era-of-wearabletechnology.

[20] ibid

[21] Leanne O’Leary, Employment and Labour Relations Law, ASSER International Sports Law Series available at http://www.springer.com/series/8858. (Last accessed on December 29, 2021)

[22] https://www.workplaceprivacyreport.com/2019/04/articles/health-information-technology/as-wearable-technology-booms-sports-and-athletic-organizations-at-all-levels-face-privacy-concerns/

[23] City of Ontario, Cal. v. Quon, 560 U.S. 746, 756 (2010); O’Connor v. Ortega, 480 U.S. 709, 717 (1987).

[24] Bilney v. Evening Star Newspaper Co., 43 Md.App. 560, 573 (Md. Ct. Spec. App. 1979).

[25] ibid

[26] ibid

[27] Brennan v. Board of Trustees for University of Louisiana Systems, 691 So.2d 324, 329 (La. Ct. App. 1997).

[28] See section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended)

[29] Section 2.7 of the Nigerian Data Protection Regulation 2019

[30] Section 2.11 of the Nigerian Data Protection Regulations 2019

[31] Section 2.6 of the Nigerian Data Protection Regulation 2019

[32] Brian D. Hall, The Impact of Smart and Wearable Technology on Trade Secret Protection and E-Discovery, 33 ABA J. Lab. & Emp. L. 79, 83–84 (2017).

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