The ownership & use of athlete data analytics in sports

THE OWNERSHIP AND USE OF ATHLETE DATA ANALYTICS IN SPORTS

ALEXANDRA DOUVARTZIDIS, LEGAL TECHNOLOGY COMMITTEE (SA), HWL EBSWORTH LAWYERS

If 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 sacrifi ce 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) qualifi ed to write an article on sports (more specifi cally, 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-fi eld 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 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 fi tted 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 fi eld? What are privacy law implications?

WHAT IS BIOMETRIC DATA?

As a starting point, it is probably important to defi ne 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. Superfi cially, 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

original work in a material form (i.e. the data put in writing). It must also be connected in some way to Australia, and must also fall into a category of work protected by the Copyright Act (i.e. a literary work).

For instance, the owner of a AppleWatch does not “own” the heart rate data relayed to the user. In its ‘bare’ or raw form, the data is unlikely to be a literary work, as it often lacks a human author and therefore is unlikely to attract IP protection.

However, don’t be fooled into thinking a person could rely on creating something like a database as a way of establishing a sufficient basis for asserting ownership of data under copyright laws in Australia. No specific law exists in Australia to protect databases.8 In the case of IceTV v Nine Network9, (which overturned the Telstra v Desktop Marketing Systems10 - a case which originally established a database right), it was affirmed that copyright does not protect mere facts or information. The commercial value of facts or information is irrelevant, as copyright will protect only the particular form of expression of facts or information. In effect, it was held that in order to determine if copyright exists, particular consideration will need to be given to the originality of the work in question.

On the other hand, an example of an instance where a proprietary interest may arise in respect of biometric data is if the data is used in research. For example, if it could be demonstrated that a human author has used the data to create an original work (such as a published study looking at the heart rates of players during matches), it may be considered a literary work for the purposes of the Copyright Act and attract IP ownership - and protection. PROTECTIONS UNDER OTHER AREAS OF LAW

Of course, there are other rights that impact how data can be used and could offer protections in certain situations.

Arguably, quasi-proprietary rights could exist in confidential information. For example, parties can enter into agreements which create express or implied obligations. However, the information must be actually confidential.

Additionally, in the absence of property rights, parties could enter into contractual arrangements which impose limitations on how the data is collected or used. We know for example that the collective bargaining agreement (CBA) between the AFL and players requires the players to wear GPS units in matches if requested by their club.11 Section 45 of the CBA sets out how the data can be used, and in effect, leaves control of the data in the hands of the AFL.12 Interestingly, the CBA has left open the potential for further commercialisation of the data.

WHAT ABOUT PROTECTIONS IN PRIVACY LAW?

Biometric data is considered personal and sensitive information for the purposes of the Privacy Act, which governs the ways in which certain private businesses and Commonwealth agencies can use personal information. For example, the AFL, which has an annual turnover of over $3 million dollars, is an entity which is required to comply with the Privacy Act. Under the Privacy Act, the collection or solicitation of biometric information from an individual without their consent by such an entity or agency would be inconsistent with the Australian Privacy Principles (APPs).13 Even if consent is given, APP 3 requires that collection of biometric information to be reasonably necessary for one or more of the agency’s functions or activities.14

Under the Privacy Act, it may be possible to limit the way in which biometric data can be used or disclosed. However, it is important to note that privacy laws in Australia do not create any ownership rights for individuals - it simply gives them some control over the way that biometric data is used. For example, it may allow individuals to request a copy of their own information,15 or provide a right for the individual to refuse the collection of biometric data if it can be demonstrated that it is not reasonably necessary in order for the agency to conduct its functions or activities.

There is also an employee record exemption for employees under the Privacy Act. The exemption allows an employer to collect personal information from an employee provided that information relates to the employment of that individual (known as an ‘employee record’). However, the employee record exemption doesn’t necessarily allow for the collection and use of biometric data. Importantly, in Jeremy Lee v Superior Wood Pty Ltd, the Full Bench of the Fair Work Commission found that the employee records exemption in the Privacy Act did not apply to the collection of biometric data such as fingerprints or other sensitive information. So, in the context of team sports athletes having their sensitive information collected and used by the entity that employs them, employers will need to be mindful of whether they require the consent of the athlete in circumstances where the collection of the information isn’t required or authorised under law.

WHERE TO NEXT?

Ultimately, there are clear difficulties in establishing any proprietary rights in respect of biometric data and it is unlikely that the IP laws in Australia will change any time soon in such a way that something like biometric data will attract proprietary rights. However, given the ever-evolving landscape of data collection and use globally, that’s not to say that other rights may not be established in the future (in particular, under privacy laws).

For the time being, athletes may have to look at other areas of laws to assert some sort of “quasi-ownership” over their biometric data, or at least consider ways that they can negotiate some contractual restrictions in respect of the use of the data collected by stakeholders.

That’s not to say that athletes whose biometric data is currently being collected and used by a third party cannot also use that data collection to their own advantage. Referring again to the AFL as an example, players are able to request their player information under the CBA. In theory, those players could then refer to that data as an indicator of performance and use it as bargaining tool to renegotiate future contracts with clubs. Athletes could also consider how the use of their data can be commercialised through other ways - such as creating their own fitness programs on Instagram (which is obviously ground-breaking and has never been done before). B

Endnotes 1 These statistics might be incorrect. 2 ‘Our ambition to build one of the world’s most advanced sporting stadiums’, Luke Hopewell (23

December 2020) https://exchange.telstra.com.au/ tag/telstra-tracker/ 3 ‘Ibid. Another fun fact: Port Adelaide Football Club was also the first AFL club to display real-time data on the scoreboards during games at Adelaide Oval. 4 ‘NFLPA Provides WHOOP to All Active NFL

Players’ (10 August 2020) https://www.whoop. com/thelocker/nflpa-provides-whoop-to-players/ 5 ‘Why biometrics is the future of F1 racing overalls’, Jonathan Noble (22 May 2020) https:// www.motorsport.com/f1/news/future-racingoveralls-alpinestars-biometrics/4795251/ 6 Ibid. 7 ‘UFC Performance Institute Adopts New

Athlete Monitoring Technology’, Jen Booton (11

September 2018), https://www.sporttechie.com/

ufc-performance-institute-adopts-new-athletemonitoring-technology/ 8 However, this is not the case for foreign sports or Australian entities which may be subject to foreign data protection laws - like the European

Union (EU) General Data Protection Regulation (GDPR). The GDPR applies to any business

‘established’ in the EU and any “controller” or

“processor” of personal data who offers goods or services to individuals residing in the EU, or otherwise monitors the behaviour of individuals in the EU. Under the GDPR, database rights exist. 9 [2009] HCA 14. 10 [2001] FCA 612. 11 ‘Wearable technology in sport’, Sam Adams and

Claudia Levings (12 August 2019) https://www. cgw.com.au/publication/wearable-technologyin-sport/?utm_source=Mondaq&utm_ medium=syndication&utm_campaign=LinkedInintegration 12 See the AFL’s Collective Bargaining Agreement for 2017 - 2022: https://www.aflplayers.com.au/ industry-home/cba 13 ‘Chapter 3: APP 3 — Collection of solicited personal information’ (22 July 2019) https://www. oaic.gov.au/privacy/australian-privacy-principlesguidelines/chapter-3-app-3-collection-of-solicitedpersonal-information/ 14 Ibid. 15 ‘Chapter 12: APP 12 — Access to personal information’ (22 July 2019) https://www.oaic. gov.au/privacy/australian-privacy-principlesguidelines/chapter-12-app-12-access-to-personalinformation/

Endnotes – Regulating the sports industry

Endnotes 1 Lexis Nexis, Halsbury’s Laws of Australia (online at 26 March 2021) 175 Entertainment, Sport and

Tourism, ‘II Sport’, [175-600]. 2 David Shilbury and Lesley Ferkins,

Routledge Handbook of Sport Governance (Routledge, 2020) 13. 3 Ibid. 4 Chris Davies and Sam Lansky, ‘Cricket and the

Law: Ball Tampering, Contracts and Enterprise

Bargaining Agreements’ (2018) 24 James Cook

University Law Review 77, 83-86. 5 Ibid. 6 Memorandum of Association, The International

Cricket Council Limited, 12 June 2018, clause 5 <https://resources.pulse.icc-cricket.com/ICC/ document/2020/12/16/d05409c6-7b62-40e097f3-5b864759ad62/ICC-Mem-Arts-Amendedand-Restated-filed-15-Dec-2020.pdf>. 7 The International Cricket Council, ‘About

ICC - East Asia Pacific’, ICC-Cricket (Web Page) <https://www.icc-cricket.com/about/members/ east-asia-pacific>. 8 International Cricket Council Code of Conduct for

Players and Player Support Personnel, 1 August 2019;

Cricket Australia Code of Conduct for Players and

Player Support Personnel, 4 October 2020. 9 International Cricket Council Anti-Discrimination Code for Participants, 1 August 2019; The International

Cricket Council Anti-Discrimination Policy for

International Cricket, 1 August 2019; Cricket

Australia Anti-Discrimination Code for Players and

Player Support Personnel, 4 October 2020. 10 International Cricket Council Anti-Corruption Code for Participants, 1 January 2021; Cricket Australia Anti-

Corruption Code, 4 October 2020. 11 International Cricket Council Anti-Doping Code, 1

January 2021; Cricket Australia Anti-Doping Code, 4

October 2020 12 See World Anti-Doping Code, 1 January 2021. 13 Chris Davies and Sam Lansky, ‘Cricket and the

Law: Ball Tampering, Contracts and Enterprise

Bargaining Agreements’ (2018) 24 James Cook

University Law Review 77, 83. 14 ‘Warner joins Smith and Bancroft in accepting sanctions’ ICC Cricket News (Web Page, 5

April 2018) <https://www.icc-cricket.com/ news/656582>; see also Peter Lalor, ‘Smith’s

Shame’, The Australian, 26 March 2018, 1. 15 Sam Ferris, ‘CA Slaps Ban on Tampering

Trio’, Cricket Australia (Web Page, 28 March 2018) <https://www.cricket.com.au/news/ player-sanctions-steve-smith-cameronbancroft-david-warner-australia-cricket-balltampering/2018-03-28>; see also Peter Lalor,

‘Banned Players ready for a fight’, The Australian, 29 March 2018, 32. 16 Sports Integrity Australia Act 2020 (Cth), s 9. 17 Sports Integrity Australia Regulations 2020 (Cth),

Sch 2. 18 Sports Integrity Australia Act 2020 (Cth), s 13(1)(f). 19 Sports Integrity Australia Act 2020 (Cth), s 13(1)(k);

Sports Integrity Australia Regulations (Cth), reg 4.13 of sch 1. 20 Sport Integrity Australia Act 2020 (Cth), s 21(1)(f). 21 Eric Windholz, ‘Securing Health and Safety at

Major Sporting Events’ [2016] Sports Law eJournal 31:1-11, 5. 22 Work Health and Safety Act 2012 (SA), s 28 (which imposes duties on workers to, amongst other things, take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons). 23 Prosecution Result Summaries and Enforceable

Undertakings (Web Page) <https://www. worksafe.vic.gov.au/prosecution-resultsummaries-enforceable-undertakings>; see also

Eric Windholz, ‘Professional Sport, Work Health and Safety Law and Reluctant Regulators’ [2015]

Sports Law eJournal 28:1-14, 2. 24 Prosecution Result Summaries and Enforceable

Undertakings (Web Page) <https://www. worksafe.vic.gov.au/prosecution-resultsummaries-enforceable-undertakings>; Mark

Dunn, ‘Essendon Bombers fined $200,000 for workplace safety breaches over supplements saga’ Herald Sun (online, 28 January 2016) <https://www.heraldsun.com.au/sport/afl/ teams/essendon/essendon-bombers-fined200000-for-workplace-safety-breaches-oversupplements-saga/news-story/9376b7abd1c210 dbe9434cf3745f9695>. 25 Australian Sports Commission Act 1989 (Cth), s 5(2)(a). 26 Sport Australia launched to get nation moving (Web

Page) <https://www.sportaus.gov.au/mediacentre/news/sport_australia_launched_to_get_ nation_moving>. 27 Australian Sports Commission Act 1989 (Cth), s 6. 28 Ibid, s 7. 29 Ibid, s 9. 30 Ibid.