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Here’s an interesting twist in the debate over official data and intellectual property debate when it comes to sports betting in the US: The twitter account of sports data company Sportradar (not SportradarUS) sent a most intriguing tweet this morning.
The tweet was later deleted.
While this position is one that is largely correct, most sports data does not create intellectual property rights for sports leagues because it is essentially just factual information. There are some potential avenues that sports leagues could arguably develop proprietary means of generating data, though the commercial value of such information is uncertain.
The decision made by Sportradar to tweet this selected quote, from a nearly 3,000-word quasi-academic article posted at UK-based LawinSport, is indeed intriguing.
The quote seems to undermine the talking points of some of Sportradar’s American sports league partners, including NBA commissioner Adam Silver, who has carefully crafted a public relations strategy in a push for a fee associated with what he has claimed is the NBA’s intellectual property rights.
Silver was recently quoted during the announcement of a deal with MGM Resorts International as saying:
“It’s the use of the NBA’s intellectual property and as we’ve discussed before we’re very focused on integrity provisions to protect our fans, to protect those who choose to engage and bet on the NBA.”
This sentiment has been echoed repeatedly by Major League Baseball commissioner Rob Manfred (MLB has a partnership with a different data company, Genius Sports), who as recently as in pre-game festivities at this year’s league All-Star game stated, in regards to fees from states associated with sports betting revenues:
“first and foremost protects the integrity of the game — but, equally important, protects our intellectual property.”
Even National Hockey League commissioner Gary Bettman has recently begun to voice his desire for the league to receive a share of betting revenues from states that legalize sports betting, noting:
“From our standpoint, we believe that, whether its our intellectual property, our data, whether its video of our game, we have important assets and if somebody is going to avail themselves or want to avail themselves of those assets in order to conduct their business, then we’re going to need to have a negotiation.”
All three of the commissioners’ public statements on the issue seem to undercut the quote in the Sportradar tweet.
Sportradar.us is the official data partner of both the NBA and NHL, however, the NBA recently distanced itself from the implication that Sportradar was the league’s chosen gambling data distributor within the US, though that is the case with the overseas data sales.
The article (available for free, with registration) by Andrew Nixon, a partner at Sheridans law firm in their sports law group, a more than qualified source on the subject, begins by discussing the danger of information monopolies, and notes that while there are no intellectual property rights in data, intellectual property rights can, however, be found in databases.
This is a nuanced, but important point that we have written about in the context of a lawsuit against Sportradar dating back to 2012.
Nixon goes on to note that in Europe, even some trespassing laws may not allow for individuals who are not disruptive to be ejected from an event for collecting data on their own.
This position may be different in the US, as many tickets detail restrictions on the types of conduct that a holder can engage and courts have generally upheld ticket restrictions as valid contractual agreements.
There are likely limits as to what type of conduct can be excluded via contractual tickets agreements, for instance, given baseball’s historical connection with game attendees keeping score, it would likely come at a high public relations cost to attempt to restrict that type of behavior.
The danger of data monopolies is, according to Nixon, similar to issues regarding other monopolies, including the ability to inflate prices. Nixon, while noting the negatives associated with monopolies, proposes two models that have been successful in Europe.
While Sportradar’s tweet is almost certain to result in some puzzled looks in the Manhattan offices of the sports league leaders, the article, from which the quote is cited is quite thoughtful and worth a read. It is definitely geared towards a European audience and indeed, appears to have been written with that focus in mind.
The major challenges that leagues face in the US surround the First Amendment rights of data distributors, journalists, and citizens generally. The First Amendment is a uniquely American feature that often makes adoption of laws from other nations difficult.
The second proposed model theoretically may be feasible, in requiring data distributors to agree to restrictions in order to enter the stadium via contractual agreements, but the practical policing such agreements and eliminating courtsiding at a college football venue such as Tiger Stadium at LSU, on Saturday night, would be a logistical nightmare.
The NBA, and every other sports league, is free to create as many official data partnerships as they so desire. Potentially, they could conceivably create tiers of official data partnerships, just like the various tiers of Netflix memberships, but, the leagues appear to have few arguments to stand-on if sportsbooks tell them to go jump in a lake, because they will get their data elsewhere.