Taboo Transactions: Selling Athlete Biometric Data

Abstract

As consumers begin to realize the extent to which their biometric and health data are being tracked through wearable devices, new privacy concerns have arisen. These concerns are more than hypothetical as the unregulated sharing and disclosure of biometric and health data may have serious repercussions. This is especially true for the athletes whose data is tracked with precision and where a lucrative market of multiple parties anxious to obtain this data already exists. The ownership and use of this data have become an incredibly complex issue, as sports leagues, teams, and the device makers wrangle over how this data should be used, shared, and potentially commercialized. Recent advances in data analytics have resulted in insights into athletic performance that a little over a decade ago were unimaginable. In Michael Lewis’ Moneyball, he described how Billy Beane, the General Manager of the Oakland A’s, used advanced data analytics to build a winning baseball team. But biometric data promises even greater insight. This promise has made biometric data a priority across professional and amateur sports, however, it is not just teams and scouts with a major interest in this data, bookmakers and gamblers would also love to get access to this information. In light of the recent expansion of legalized sports gambling in the United States and the desirability of this information we propose that measures need to be taken to protect the interests of professional athletes.

We begin our examination by noting the sensitive nature of this type of data, which may include health, location, and performance information, requires the establishment of rules regarding how this data can be used with input from the players themselves. Currently, the use of this data may be controlled by the device maker or league rather than the athletes themselves. The concerns that the data collected from an athlete can be used against her in contract negotiations, made publicly available, discovered by competing teams through negligence or cyberespionage, or by gamblers or bookmakers looking to gain an edge must be addressed. We then investigate the important issue of ownership. To what extent should the league or the device maker be able to profit from a player’s Athlete Biometric Data (ABD)? Not only do very few states have regulations addressing these issues, the current handling of ABD through bilateral agreements which do not include all stakeholders is insufficient. We conclude by proposing a new paradigm for addressing these concerns: Data Trusts.

Keywords: Data trusts, biometrics, sports betting, intellectual property, contracts,

JEL Classification: K00, K10, K11, K19, K20, K23, K29, K30, K39, K40, K49, L50, L59, L80, L83, L89, O34