Who owns an athlete’s biometric data, part one

By Jake Cabott, Nikhil Pandey and Les Honywill

Law360 Canada (September 26, 2022, 10:05 AM EDT) --
Jake Cabott
Jake Cabott
Nikhil Pandey
Nikhil Pandey
Les Honywill
Les Honywill
Performance-based biometric data derived from wearable technology is instrumental for athlete training, development and injury prevention. The value of data derived from wearable technology is rising both on and off the playing field.

From team management making key personnel decisions to the rapidly burgeoning gambling industry, numerous industries, companies and individuals could benefit immensely from exclusive control over an athlete’s biometric data. Ultimately, the rising value of this information, and the allure of monetization, are sure to raise the issue of who has the right to use, control, transfer and sell the data.

In Canada, the Personal Information Protection and Electronic Documents Act (PIPEDA), SC 2000, c 5, likely ensures that athletes maintain ownership rights over their biometric data. The Supreme Court of Canada in McInerney v. MacDonald, [1992] 2 S.C.R. 138, also likely supports this conclusion, despite preceding modern wearable technology by a few decades. Nonetheless, as technology evolves, and the law evolves along with it, athletes, teams, institutions and sport organizations should be aware of their rights and responsibilities with respect to the use, storage and transfer of athlete biometric data.

What biometric data reveals about the athlete

Wearable technology provides information on an immeasurable array of biological data points, including pulse rate, blood glucose, oxygen levels, sweat rate and sleep rhythms. Such information assists athletes and teams in optimizing performance and injury prevention by measuring workload on joints, muscles and ligaments, as well as providing important athlete development data derived from training and competition.

Why biometric data is more valuable than ever

Biometric data may serve as a heavy leverage point working for or against athletes in roster decisions, whether that is an amateur athlete trying to make a team or a professional athlete trying to negotiate their next contract. In such situations an athlete can point to data trends to suggest that their performance was better than that belied by traditional statistics or to prove that a once concerning injury is on the mend.

Alternatively, team management can use the data to highlight declining performance or spot concerning wear and tear on an athlete’s body to justify a roster cut or low-ball contract offer.

The use of athlete health information in player personnel decisions by professional teams is well-documented. For example, college standout defensive tackle Star Lotulelei was projected to be a top-three pick in the 2013 NFL draft before an irregular electrocardiogram reading, and subsequent concerns about potential heart problems, likely caused Lotulelei to drop to the 14th selection.

As a result, teams and athletes alike have a strong interest in controlling how biometric data is used and leveraged.

Commodification of biometric data

An athlete’s biometric data also provides substantial value to entities and individuals who have no part in roster decisions. Now more than ever, industries on the periphery of sports seek greater insight into athlete health and performance statistics.

For instance, while player health information has always been valuable to the sports betting industry, the demand for that information will surely rise with the recent legalization of single-event sports betting across most of North America, and athletes’ biometric data is being commodified in response to this surging demand.

The sale of biometric data to sports betting companies and other industry stakeholders is becoming one of the more lucrative aspects of the sports industry. For example, in 2018 MGM Grand signed a US$25 million data sharing deal with the NBA. That same year, the NFL entered into an agreement with broadcasters to share data from a chip planted in players’ shoulder pads which can track a player’s location up to 12 times per second. The new MLB collective bargaining agreement (CBA) also reportedly authorizes players to enter into commercial arrangements with sports betting companies.

The commodification of biometric data also raises interesting opportunities and concerns for amateur athletes. With control over their biometric data, amateur athletes could potentially access new income sources as they train and enhance their training results through leveraging the data available from wearables. However, the commercialization of biometric data also adds another wrinkle to the long-standing debate about athlete income in varsity sports where, unlike professional athletes, varsity athletes do not have a CBA to provide a right to monetize their data. The rising value of biometric data also raises concerns in collegiate sports, which carry a lengthy history of athlete exploitation, particularly by gambling entities. The growth in the value of biometric data will likely heighten risk of exploitation and increase temptation for varsity players living on modest means.

This is the first of a two-part series. Read the second article: Who owns an athlete’s biometric data, part two.

Jake Cabott is a partner at Borden Ladner Gervais (BLG) and a litigation lawyer with a focus on business disputes in complex commercial litigation and arbitration matters. Nikhil Pandey is an associate at BLG with a broad disputes practice focused on commercial litigation, arbitration and governmental relations. Les Honywill is also an associate at BLG, with a diversified practice that focuses on international arbitration, domestic arbitration and commercial litigation, and includes matters on trusts, estates, securities and fraud. All three lawyers are Vancouver-based.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients,
The Lawyer's Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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