Just this month, Major League Baseball issued a ground-breaking decision approving players' use of biometric devices during games in the 2017 baseball season. The devices, made by Whoop Inc. and which look like a sleek watch or bracelet, have been billed as the fitness tracker for elite athletes, with their ability to monitor various biometric factors like the wearer's heart rate, heart rate variability, sleep performance, and recovery. The data generated by the device will be used to assess players' performance, endurance and recovery, with the goal of optimizing training and rest periods for players and potentially influencing batter line-ups and pitcher workloads. Although the MLB's decision marks the first time a major U.S. professional league has allowed such devices to be worn in-game, it is only the latest sign that the professional sports world is embracing wearable technology. But as the saying goes, "with great power comes great responsibility," and many are wondering whether the potential risks involved have been taken into account. While few would dispute the helpful insights this technology can provide, there's no doubt that significant privacy legal concerns are raised by professional athletes' use of fitness trackers "at work."
Some of the biggest issues include:
- Who owns the data?
Should it be the league? The device manufacturer? The players themselves?
- Who has access to the data and how can it be used?
If the data is owned by the league, will the player still have access to the information generated from their device? Experts have raised the possibility that this type of data could be used in player contract negotiations, which are already based on metrics such as player performance, injury history and similar projections made about the player's health and fitness levels. If such data is used in negotiations, does that unfairly benefit younger players as compared to older players (who may be more likely to generate data suggesting lower fitness levels and longer recovery periods)? It's only a matter of time before other third party entities, like marketers, want access to this data.
- Obligation to secure the data
As with any sensitive and personally identifiable information collected, this data should be properly secured by all who maintain and access it. This data will require even greater levels of protection given that it arguably concerns health information and because it will surely be a prime target for hackers and gamblers looking to take advantage of the edge this data can provide.
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While it remains to be seen how these details will be resolved, players can at least rest assured that the MLB's decision to allow wearable devices during games resulted from a prolonged study with Whoop, Inc., and the decision of whether or not to wear the device is, at this point, entirely voluntary. Check back for privacy updates as the professional sports leagues fully embrace wearable tech..and in the meantime, perhaps someone should start casting for the next "Moneyball"!
This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
