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Beyond the gadgets: regulatory and commercial considerations for wearable technology in sports

Beyond the gadgets: regulatory and commercial considerations for wearable technology in sports

Wearable technology is infiltrating the sports world in astronomical proportions and will continue to do so for the foreseeable future. Unknown 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 training and matches. 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. This development allowed coaches the real-time ability to monitor bio-metrics. Since then, wearable technology has evolved from biometric monitoring to the inclusion of perceptual and psychological aspects of sports. 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. Shortly thereafter, they implemented wearable devices and began monitoring soft tissue. 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 EPTS primarily track player and ball positions but can also be used in combination with micro-microelectronic 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). The use of these devices must be in harmony with respective governing bodies.

Wearable technology and athletes’ rights

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 organizations and associations. In professional leagues, when data is sold, it is to be subjected through the collective bargaining processes and protocols ( See BOSU, Michigan-Nike Contract: The School Seizes and Sells New Player Data, (Aug. 31, 2016).

For the NFL, the NFL Players Association reached an agreement sometime in 2017 with a human performance company named WHOOP (See Kevin Seifert, NFL Players Grab a Data Equalizer in Era of Wearable Technology, ESPN (Apr. 24, 2017). This agreement with WHOOP allowed players to sell their data, giving the players the ability to push back against the NFL.

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. 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

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Depending on the 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 (City of Ontario, Cal. v. Quon, 560 U.S. 746, 756 (2010); O’Connor v. Ortega, 480 U.S. 709, 717 (1987). 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. 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. The court concluded that this was not an invasion of privacy because they were public figures on the basketball team. Accordingly, due to their public figure status, the players did not have the same privacy luxuries afforded to them as other students.

The Nigerian context

In Nigeria, beyond the Constitution of the Federal Republic of Nigeria and the Nigerian Data Protection Regulation (NDPR), there is no comprehensive regulation that governs the privacy and use of data of Nigerians, especially athletes. However, there is a burgeoning commercial goldmine that sports and technology brands can leverage in Nigeria

In addition to the sports-focused technology companies, it would be remiss of the author not to mention the contribution of mobile, digital and social media. These advances have revolutionized the way fans interact with their favourite sports entities, opening new channels for communication and allowing fans into the everyday world of athletes and teams. Mobile phone manufacturers and social media giants alike have started to involve themselves in sponsorship, along with sports technology and data companies.

Sponsorship by technology companies is more complex than other sponsor categories. Instead of just sponsoring a sporting event and placing their logo on jerseys, venues, etc., technology companies have a dynamic engagement and influence with their sponsored properties. Sometimes, like in the case of Intel, IBM, or Amazon Web Services, they are the technology partner of the sponsored property, providing support at the back-end and collecting game and player data which can then be used to improve the property’s performance. Or, in the cases of AT&T or Samsung, they improve fan experience and engagement through their devices and apps, ensuring that the team/event has a positive association with its fans. This integration of technology and sponsorship leads to an authentic and credible association with the sponsor’s customers. Sponsorship helps technology companies easily capture new markets and increase awareness.

One great example of this is Chinese mobile manufacturer Vivo, a practically unknown name in India until its sponsorship of the largest sporting event in cricket, the Indian Premier League in 2015. Today, it is the third largest smartphone manufacturer in India, behind Samsung and Xiaomi. To further increase its presence in the global market, Vivo also sponsored the FIFA World Cup in 2018. SAP, the German software corporation provides insights to many major leagues, teams and organizations across multiple sports. They have partnerships with two of the biggest American leagues- the NBA and NHL, multiple teams. This partnership integrates the sponsor’s products with its properties, creating a close and natural association with its properties as well as fans. Given the immense commercial benefits available to sports brands and tech companies from the use of wearable technology, it is only a matter of time before the Nigerian tech space joins the fray.

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.

Steve Austin Nwabueze is a Senior Associate, Perchstone & Graeys