FEATURE
THE OWNERSHIP AND USE OF ATHLETE DATA ANALYTICS IN SPORTS ALEXANDRA DOUVARTZIDIS, LEGAL TECHNOLOGY COMMITTEE (SA), HWL EBSWORTH LAWYERS
I
f you’re like me, you probably spend most of your weekends talking about Travis Boak and his impressive ability to carve up week in-week out. I also have had a fairly (un)successful career in division [redacted] in the Adelaide Footy League and I’ve been known to sacrifice many nights of sleep to watch my beloved Manchester United. Either way, 95%1 of my weekend is made up of talking about or watching some form of sport, which makes me (arguably) qualified to write an article on sports (more specifically, on the use of biometric data in sport). Did you know, if we were to combine the running efforts of all players across the regular AFL season in 2019, the players would have travelled a combined total of 111,628 kilometres?2 That’s approximately 111,627 kilometres more than I ran myself in 2020 (impressive feat I know). But how did I know this interesting little fact? Over the last decade we have seen Australian sports, such as AFL, NRL and Cricket, collect and use athlete data through wearable technology devices. Those of us who are AFL mad can get access to some of this data via the Telstra Tracker on the AFL App, which provides statistics on player speed, intensity and ground coverage during games in real time.3 It’s not just Australian sports that are interested in the collection and use of biometric data. The NFL in the US monitor players’ off-field recovery through the use of WHOOP armbands, which contain sensors that measure a range of data relevant to assessing an individual’s strain, recovery and sleep performance.4 In 2018, Formula 1 racing also introduced a new biometric race glove which is now used to monitor a driver’s heart rate as
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well as blood oxygen levels. The glove contains a 3mm sensor in the thumb which relays the driver’s health information to medical personnel providing support to injured drivers.5 Alpinestars (a MotoGP apparel brand) have also fitted a number of heat and physical sensors to collect data to determine what the riders were experiencing.6 Even the UFC is using wearable technology to identify “physiologically limiting factors” that might hinder mixed martial arts athletes from reaching optimal levels of performance.7 Overall, the analysis of biometric data supposedly enables sporting organisations and clubs to develop better training and rehabilitation programs for athletes to both reduce the risk of injury and enhance post-injury (including post-surgery) rehabilitation. But the collection of biometric and positional data in sport poses some interesting questions, such as who owns the data and how can that data be used? Can athletes use the data to their own advantage both on and off field? What are privacy law implications?
WHAT IS BIOMETRIC DATA? As a starting point, it is probably important to define what ‘biometric’ data actually is. Biometric data refers to any kind of biological information which can be obtained from an individual player. These metrics could include everything from pulse rate and blood glucose, to oxygen levels, sweat rate and sleep rhythms. Some trackers used by athletes also collect positional data, which includes metrics such as position, acceleration, lateral motion, speed, and jump height.
WHO OWNS THE DATA BEING COLLECTED AND ‘USED’? If we consider the ownership of data from an AFL perspective, there are numerous stakeholders potentially involved. There are, amongst others, the AFL itself, the 18 AFL clubs, the AFL Players Association representing the interests of the individual players, and the data collection partner who collated the data from the trackers. So, who owns the data being collected from the athletes? Many might assume that the data would be owned by the individual athlete, or the AFL - but what about no one at all? In order for something to be owned in law, we need to be able to categorise it as ‘property’. When talking about ‘records’ and data, there is a distinction between the idea that ‘property’ exists in the physical item holding those records (for example, a system which collates and stores data collected from the athletes) versus the concept of ‘property’ (if any) in the data itself. For the purposes of this article, we are interested in the concept of ‘property’ and therefore ‘ownership’ of the data itself. It is important to keep in mind that ‘ownership’ is distinct from ‘use’ - so although there may be the existence of rights which impact how data is ‘used’, this doesn’t necessarily determine ownership. The concept of ownership of biometric data in Australia is not straightforward. Superficially, no one actually owns biometric data. In effect, there can be no express ‘proprietary right’ or IP, in biometric data itself. In order for a proprietary interest to exist under copyright in Australia, it would need to be demonstrated that a human author has taken the data, and created an
