Beyond the Gadgets: Regulatory and Legal Considerations for Wearable Technology in Sports

Introduction

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 number of countries had imposed lockdowns in some cities. By Friday, 13 March 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 suspending play until 3 April 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 while complying with league safety protocols — one of the biggest challenges being how to ensure 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, has said. 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 decisions during training and matches.

Wearable technology is infiltrating the sports world in astronomical proportions and will continue to do so for the foreseeable future. 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 analyses these issues, addressing (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, with a European soccer club tracking the overall workload of players during games — a development that gave coaches the real-time ability to monitor biometrics. Since then, wearable technology has evolved from biometric monitoring to the inclusion of perceptual and psychological aspects of sport. Through the use of these products, the ability to reduce potential injuries related to concussions, brain trauma, exhaustion, and injured muscles, tendons and ligaments, in addition to various illnesses, is greatly increased. In short, the idea behind wearable technology is that certain technologies can help keep athletes safe and healthy — a theory that has been tested and proven successful. One example is the Toronto Raptors: in 2012, the Raptors had the most injuries in the NBA; shortly thereafter, they implemented wearable devices and began monitoring soft tissue, and by 2014 the Raptors had the fewest injuries in the NBA. This is just one of the advantages of adopting the practice.

Are there over-arching legal concerns sports administrators should bear in mind?

In football, these are technically referred to as Electronic Performance and Tracking Systems (EPTS) devices, which include camera-based and wearable technologies used to control and improve player and team performance. 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 the 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), and the use of these devices must be in harmony with respective governing bodies’ rules.

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

Wearable technology and athletes’ rights

Unlike collegiate and amateur sports, where there are no centrally negotiated collective bargaining agreements with player unions or associations to protect the best interests of athletes, some professional leagues have comprehensive standing agreements that define the ambit of wearable technology allowed per season. Leagues such as the MLS, MLB, NBA, EPL and La Liga have structured players’ organisations and associations, and in professional leagues, when data is sold, it is to be subjected to the collective bargaining process and its protocols.

To understand the practical application of this principle, it is useful to consider the prevailing collective bargaining agreements in some professional sports and the extent of protection they offer. In the NFL, MLB and NBA, players commonly disclose medical information about themselves, and in these sports players currently wear wearable technology devices in their gear, including on-field sensors. In the NFL, the requirement to wear sensors is limited to the field. The National Football League Players Association (NFLPA) has filed a grievance claiming that the NFL and its teams should not be able to track players’ sleeping patterns, because the collective bargaining agreement does not authorise monitoring off the field. Greg Aiello, an NFL spokesperson, responded that the sleep sensors worn by players were entirely voluntary, and that players had an interest in wearing them to improve performance; he stated he was unsure why the NFLPA took issue with technology players themselves chose to use. It is likely, however, that the NFLPA has concerns for the future and does not want to set a precedent adverse to players’ future interests. Additionally, if the NFL wishes to use information recorded through on-field sensors for medical purposes, it must seek the NFLPA’s permission. Zebra sensors, which NFL players are required to wear in their shoulder pads, illustrate this: they have been deemed non-invasive because they track only location, acceleration and speed during games, none of which is considered protected or private information.

For the NFL, the Players’ Association reached an agreement in 2017 with human performance company WHOOP, allowing players to sell their own data — giving players the ability to push back against the NFL, and reflecting the NFLPA’s optimism about protecting athletes’ privacy while also allowing them to benefit financially from their own information.

In the Premier League, the PFNCC is the forum in which discussions take place between the Premier League, the PFA and the FA, and it is through dialogue within the PFNCC framework that consensus is reached on the standard terms and conditions of professional football players and on rules passed by the FA and the Premier League that impinge on their employment. The PFNCC is constitutionally independent of the regulatory and governance framework of the FA, the Premier League and the PFA. While it is difficult to ascertain the exact contents of the EPL’s collective bargaining position on wearable technology, the Covid-19 pandemic has undeniably expanded the use of these devices.

With devices ranging from wearable monitors to clothing and equipment with embedded sensors, professional teams, league bodies and 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 merely related to an athlete’s performance and wellness. 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 simply by observing the individual. When organisations collect, use, share or store this data, it creates privacy and security risks, and numerous international regulatory policies and data protection laws may apply. Any sports or athletic organisation that develops a wearable device programme, or has reason to believe such devices are being used by coaches and others to collect similar data, should be mindful of these risks and regulatory issues.

Depending on jurisdiction, consent may or may not be required for monitoring, and judicial decisions on the issue remain almost non-existent. The overriding jurisprudence, however, appears to be that an athlete’s expectation of privacy is minimised when on the team’s premises or when using company or team equipment. City of Ontario, Cal. v Quon and O’Connor v Ortega are among the decisions holding that an employee may lack an expectation of privacy in technologies provided by an employer, with the latter case holding this to be dependent on the realities of the workplace. Where a binding collective bargaining agreement duly negotiated by a players’ union exists, there may be little issue, since players’ interests would be amply protected; but where players are neither involved nor represented in negotiating the applicable wearable technology terms, legal issues may arise.

One school of thought holds that athletes have lesser privacy than many other people, as a mere incident of their chosen career path. In Bilney v The Evening Star Newspaper Co., a group of Maryland basketball players sued a newspaper over the invasion of privacy when their academic records were reported; the court concluded there was no invasion of privacy because the players were public figures on the basketball team, and were therefore not entitled to the same expectation of privacy as an ordinary student. Courts have also reasoned that athletes have a diminished expectation of privacy given the frequency and intimacy of their daily interaction with coaches, trainers and other athletic staff, and are accordingly not entitled to an expectation of privacy for certain types of shared information. An added complexity arises where, for instance, a team manager resigns or leaves the team but still possesses data and information on former players, and seeks to use it to the advantage of a new employer.

The Nigerian context

The Constitution of the Federal Republic of Nigeria and the Nigerian Data Protection Regulation (NDPR) govern the privacy and use of data of Nigerians — this undoubtedly includes athletes, sports professionals and other relevant regulators in the sports profession in Nigeria. The NDPR applies to natural persons residing in Nigeria, or residing outside Nigeria but who are citizens of Nigeria, and to all transactions intended for the processing of personal data, notwithstanding the means by which the data is processed.

Sports administrators and professionals in the use and operation of wearable technology must therefore strictly adhere to extant laws. Sports officials (or, where applicable, the data controller or administrator) must obtain the express consent of the athlete as data subject, and 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 sports regulators, league bodies or club proprietors wish to transfer athletes’ data to a third party for processing, such transfer must be governed by a written contract between the third party and the transferor. Given the international and multi-jurisdictional nature of sport, where foreign clubs and administrators require the data of Nigerian players derived from wearable technology used in Nigeria, the law requires that the consent of the Attorney-General of the Federation be sought and obtained before such transfer to a foreign country or international organisation, except where the player expressly consents, or the transfer is necessary for performance of the contract between the player and the employer, or for reasons of public interest.

The use of wearable technology in Nigeria therefore imposes an obligation on the regulator, league body or club to develop measures to secure the data and privacy of athletes against all foreseeable hazards and breaches, such as theft, cyberattack, viral attack, dissemination or manipulation of any kind.

Postscript

Teams and organisations may need to enhance their policies and security protocols to ensure compliance with data collection limits, protect their vulnerabilities and reduce liability. This may include frequent background checks and extensive screening for anyone with access to confidential wearable devices and collected information. Teams will likely also need to ensure compliance with top-notch cyber-security standards, as the risks associated with the collection of data through technology increase — including the potential for hacking, manipulation of data for personal use or gain, and risks associated with cloud storage and processing. The information gathered through wearable technology has significant value to marketers, and will ultimately become fertile ground for litigation in the future if further regulation is not put in place to address these issues.