New technologies have had a strong impact on the sport sector, but may cause legal issues for sporting organisations.
Developments in technology have had a remarkable impact on the sporting sector. Both wearable and blockchain technology have become increasingly popular and whilst incredibly beneficial, sporting organisations must ensure they take note of the legal issues arising from their use.
This blog will be divided into two parts focusing first on wearable technology.
It has become ever popular for athletes and the health conscious to self-monitor their performance through the use of technology that tracks personal data via a wearable device. Wearables have become increasingly more innovative with a sophisticated biometric understanding that has increased their appeal; for example a person is not only able to track heart rate, speed and performance but some devices have the ability to aid injury prevention, through the use of data for medical analysis. The professional English Rugby Union team Saracens have used a data collection system and research programme namely ‘xPatch’ that was designed to measure the effects of concussion on players. The wearables are placed behind the ear lobes during matches, and produce data measuring the size and direction of impact to the head. The use of such technology can therefore benefit players’ long term health in addition to producing useful data for analysis. Indeed many sporting clubs have welcomed the use of wearable technology devices and performance analysis software to enable coaches to have a better understanding of performance, maximising athletes and players’ abilities.
In other examples, wearables are used heavily in football. ‘Catapult’ and ‘Zephyr’ are devices used to measure posture, heart rate and impact which is then used to infer jump height, peak force and heart rate recovery. The data is then fed back to the athlete who is then able to see an almost ‘quantified self’, a personalised data set that is used to improve performance and create a tailored training schedule. In previous years Leicester City Football Club reported the fewest injured players over the season due to the club's resourceful use of technology; players wear a ‘Catapult Sport's OptimEye S5 device’, which collects data relating to acceleration, direction, position and the impact of collisions.
Moreover statistical data now plays a crucial role in player recruitment, algorithms produced from player data and video tracking aids the identification of talent, something which scouts use routinely to ensure talented players do not escape.
Yet, it is important to note the legal challenges that can arise in respect of wearables, in particular regarding data ownership and privacy for those who collect and use athlete’s data. .
Both wearable devices and performance analysis software have the ability to store mass amounts of personal and sensitive data about users, metrics include distance, speed, temperature, heart rate, sleep patterns and calorie intake. But who has the right to control, process or access the data that is produced? Clubs, leagues, governing bodies, federations, agents and athletes should consider the obligations outlined in the Data Protection Act 2018 and the GDPR regulations.
The data controller is defined as the person who owns the data. This could perhaps be the club, governing body or agent of the player who will possess the data and determine the purpose for which the personal data is processed. The data processor will be the third party who processes the data on behalf of the controller - this could extend to external performance analysis for example. The data subject would be the individual player/athlete. The data controller should therefore be aware of their legal obligations including the fair and proper use of information that forms a part of the fundamental right to privacy and that such data should be processed with the consent of the data subject. The ICO have issued compliance guidance stating that:
'Every organisation is different and there is no one-size fits-all answer. Data protection law doesn’t set many absolute rules. Instead it takes a risk-based approach, based on some key principles. This means it’s flexible and can be applied to a huge range of organisations and situations, and it doesn’t act as a barrier to doing new things in new ways. Whether and how organizations can comply depends on exactly how the data is used and there is often more than one way to comply.'
Clubs and governing bodies can show basic compliance with principles by implementing measures such as staff training, internal audits of processing activities and by maintaining relevant documentation on processing activities. Nevertheless the more sophisticated the wearable technology the more accessible and intrusive it becomes.
It is important to note that the above issues still remain largely unclear. There is still a legal debate over who actually controls the data, is it the club, the league, the governing body or the company providing the technology? And what are the specific obligations and rights on each of these stakeholders? Nonetheless various organisations such as FIFA have issued their own regulatory compliance regarding data in light of uncertainty. It cannot be denied that wearable tech is driving exciting and engaging developments in the sports sector, these innovative new methods of data collection and use is arguably creating a symbiotic relationship between sport and technology.
For more information on the topic, please contact Zainab Gulamhussein. Also, click here to read part two.
