The advent of increased access to legal sports betting has created increased attention on various aspects of professional and collegiate sports that might be ripe for exploitation.
Chief amongst the concerns is the potential vulnerability of unpaid college athletes. New Jersey apparently saw such a concern as a reason for excluding in-state collegiate teams from legal wagering. How long will it be before we see uniform NCAA injury reports?
College sports not forthcoming with injury info
One of the curious factors surrounding collegiate sports has been the resistance to releasing injury information in a cohesive and uniform manner in advance of major events like March Madness.
While a number of news organizations, like USA Today, do an admirable job of collecting college injury information, there is no consistent approach to how this information is released.
The Supreme Court decision in Murphy v. NCAA prompted calls from Big 10 athletic directors for a weekly national injury reporting mandate. The suggestions did not advance beyond the Oversight Committee, leaving NCAA sports with an antiquated policy of coaches guarding injury information and creating a market for any with inside information about injuries.
The main obstacle, frequently cited by coaches and administrators, appears to be one of perception regarding the Health Insurance Portability and Accountability Act (HIPAA).
What is HIPAA?
HIPAA is a law passed in 1996 that was meant to modernize the electronic flow of medical information. Notably, the statute stipulated how personal information had to be maintained via the “Privacy Rule.”
The rule, which came into effect in 2003, prevented covered entities from disclosing protected health information (PHI) to others without a patient’s express written consent. The exception comes in limited circumstances such as a law enforcement investigation, which is accompanied by court order, warrant or subpoena.
Who is a covered entity?
The National Institute of Health lists covered entities as:
“(1) health plans, (2) health care clearinghouses, and (3) health care providers who electronically transmit any health information in connection with transactions for which HHS has adopted standards. Generally, these transactions concern billing and payment for services or insurance coverage.
“For example, hospitals, academic medical centers, physicians, and other health care providers who electronically transmit claims transaction information directly or through an intermediary to a health plan are covered entities. Covered entities can be institutions, organizations, or persons.”
The statute would appear to incorporate an entire university as within its scope assuming the university operates a hospital system, but there is an exemption for Hybrid Entities:
A single legal entity that is a covered entity, performs business activities that include both covered and noncovered functions, and designates its health care components as provided in the Privacy Rule. If a covered entity is a hybrid entity, the Privacy Rule generally applies only to its designated health care components.
However, nonhealth care components of a hybrid entity may be affected because the health care component is limited in how it can share PHI with the non-health care component. The covered entity also retains certain oversight, compliance, and enforcement responsibilities.
So is HIPAA really an issue?
No. HIPAA is not a meaningful obstacle to releasing reliable medical information useful to books and bettors and eliminating a market for information.
It is simply a red herring, as athletes could be expected to waive limited rights for the release of certain medical information. Additionally, the information necessary for release need not be exceptionally detailed to protect the integrity of athletes and betting markets.
This is a standard procedure in many professional leagues and is ingrained in the collective bargaining process. Many collegiate athletes already waive some privacy rights associated with their medical history in order to access facilities and train.
Is there an issue with collection?
The NCAA already operates an injury surveillance program (ISP), though it is voluntary in nature. The ISP records the frequency of injuries, the treatment, and the activity that caused the injury and is administered by the Datalys Center.
The center is an “independent non-profit organization that furthers the efforts of researchers, public health officials, associations, policy makers and the public by collecting and translating sport injury and treatment data.”
A simple transition from voluntary to mandatory (something likely in the organization’s best long-term interest) could perform the task of disseminating the information once or twice a week, as is standard for the NFL.
Public support for NCAA injury reports
In August 2018, the National Athletic Trainers Association (NATA) released an official statement on the public release of injury reports.
NATA recommended five components for the public release of collegiate injury reports:
- Provide accurate and concise information on injury reports. Reporting erroneous or misleading information is an ethics violation for the sports medicine professionals involved in the process.
- Report once or twice a week, as agreed upon by the NCAA or conference officials. The frequency of reports directly relates to the accuracy of the information included in the report.
- Limit injury descriptions to “upper body injury” or “lower body injury”. Gambling enthusiasts may attempt to coax for more information, however, student athlete privacy and protection is paramount.
- Categorize athlete participation status in two categories: Out – Will not play, Doubtful –Unlikely to play.
- Engage sports medicine professionals in discussions related to injury reports to ensure compliance with student athlete and privacy policies.
What to make of this?
The focus of the debate centering on athlete privacy is somewhat misguided, as collegiate athletes already waive significant privacy rights in association with their participation in intercollegiate athletics.
Indeed, it seems much of the opposition to the timely release of standardized injury information is driven by antiquated coaching philosophies and gamesmanship. But these strategies around concealing injuries creates a market for inside information, and threatens the integrity of both the underlying sporting event and the betting markets.
Whether the NCAA likes it or not, sports betting is expanding. At some point they are going to have to be proactive in getting with the times and taking steps to protect against a scandal by doing little things like releasing NCAA injury reports, or face the backlash to their already tarnished reputation that would come with an insider information scandal.