The Major Issues Behind Biometric Data And Its Potential In Legal Sports Betting

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Biometric data

At the recent Sports Lawyers Association Conference in Phoenix, representatives from the four major sports leagues talked about the future of player tracking and biometric data.

The issue most recently popped up late last year in relation to sports betting when the now-defunct Alliance of American Football (AAF) planned to put wearable technology on its players to collect such information for wagering purposes.

The four US pro leagues have taken different approaches on how to handle biometric data, like whether it should be disseminated and for what purposes.

Different strokes for different leagues

The NHL currently appears to be the most advanced, already having an agreement in place on wearables (think Fitbit, but with greater accuracy and more detail.) And it sells puck and player tracking data as part of commercial data agreements.

Patrick Houlihan of MLB said that the league has had an agreement in place with the players’ association regarding wearables since 2016. In contrast to the NHL, MLB’s agreement with players does not allow for the data to be sold commercially, and players are also free to reject participating in the tracking programs.

Dan Spillane of the NBA has said that the league has a good relationship with its players’ association regarding biometric data, but there remain certain areas of concern regarding the commercial sale of the data. The league is working with the players to determine what uses will be permissible.

The NFL appears to be the laggard, with league lawyer Adolpho Birch III noting that the league has a basic template. The subject and details of how the data can be used will likely be included in upcoming collective bargaining negotiations.

What is biometric data?

Few have looked into the issues surrounding athlete biometric data as thoroughly and for as long as Kristy Gale of Hypergolic. Gale has published two of the most authoritative legal articles on the subject.

Gale explains in her 2016 Arizona State University Sports & Entertainment Law Journal article that one of the first things that needs to be done is to define what we are talking about when discussing athlete biometric data.

Gale says biometric data is “comprised of unique biological and behavioral characteristics that identify a specific individual,” and proposes defining Athlete Biometric Data (ABD) as:

“[a] measurable and distinguishable physical characteristic or personal behavioral trait used to recognize one’s identity, including but not limited to name, nicknames, likeness, signatures, pictures, activities, voice, statistics, playing and performance records, achievements, indicia, data, and other information identifying a particular athlete.”

How is biometric data collected?

Nearly everyone is using some form a tracking device to record physical activity in some way, whether it is a Fitbit trying to reach 10,000 steps or a run-mapping app on your phone. Professional and collegiate sports teams are just like us, only they are using more sophisticated tracking measures.

The NFL, for instance, has partnered with Zebra technology, which implants multiple trackers in every player’s equipment. Other products, like STATS (of NBA data lawsuit fame) SportVU camera system, use missile-tracking technology to monitor ball and player movements, delivering a data stream that can be analyzed to provide information to coaches, agents, and gamblers.

Will you be able to bet on LeBron’s heart rate?

It is unlikely that any league will strike a data deal with its players’ association or any gambling providers that would allow books to offer legal sports betting on athlete’s biometric data with regards to things like heart rate or velocity of impact on the football field anytime soon.

But there is certainly the possibility that we could see discrete events based on biometric tracking becoming prop bets.

Given that the majority of wagering is still on the end result of games in the U.S., it remains to be seen whether these types of props would garner much interest.

Will you be able to buy access to this data?

Another question the betting world would like answered is whether this information will be made available commercially? At the moment it seems less likely that bettors or sports books would be able to buy unfettered access to Kyle Lowry’s heart rate data from Friday’s practice, but as Big Brother becomes more omnipotent and there are more and more means of tracking people, some of that data may become commercially available.

Of course, the cruel irony for the Big Four leagues is that this is data that the leagues (with Players’ Association agreement) could commodify and exclude others from collecting.

Who owns biometric data?

Big questions working their way through the pro leagues are who owns the data and what can it be used for? For instance, players are likely to be OK with the data being used by training staff to plan practice workloads, but they likely do not want ownership to use the data in future contract negotiations.

At the pro level, who owns the data and who can sell the data, use the data, and for what purposes will be a matter for associations and ownership to agree on. At the college level and in individual sports like golf, tennis, and Olympics, these questions become a little less clear and the wide-scale sale of biometric data is likely more complex.

Public policy questions for regulators

There are also likely some moral questions that players and leagues will have to wrestle with, as well as public policy questions that state regulators will have to address both in regards to gambling-related use of biometric data and use in an employment context more generally.

These questions are likely to take longer to resolve than coming to an agreement on terms for use of the data between players and leagues.

Relatedly, there are issues with security of biometric data. Nathaniel Grow and Scott Schackelford of Indiana University’s Kelley School of Business, examined this issue in a law review article to be published in the Boston College Law Review.

They suggested that unauthorized access to athlete biometric data could provide an advantage to opponents. This information could similarly be advantageous to bettors.

What’s going to happen?

It’s impossible to know what the future holds for biometric data and the gambling world. The players have a very real interest in how this data is used, and who can have access to which information. The information is not only private in nature, but potentially extremely valuable.

The first step forward is likely for the major sports leagues and associations to decide what information should be collected and what parts, if any, should be made commercially available. Simultaneously, state lawmakers should consider how and whether to address this issue as they are considering new legislation.