Wearable technology is infiltrating the sports world at astronomical proportions and will continue to do so for the foreseeable future. Unknown to most spectators, fans, and even opposing teams, certain players wore tracking devices that recorded every meter they ran, every turn they took, and how fast they accelerated. These data were processed and stored to be able to compare them with previous matches and training sessions. Coaches have been able to track the physical condition and performance of their players and ultimately make important in-game tactical decisions during training and matches. Are there legal considerations that support this practice? Put another way, are there legal implications of this practice that sports teams and league bodies need to consider when embracing this new phenomenon? What is the implication for the individual rights of athletes and the demands of fair competition?

This article will explore these issues and address (1) the history and development of wearable technology and (2) the legal implications of wearable technology in professional sports.

History of wearable technology in sports

Wearable technology in sports is a relatively recent development. It was first used in live sports starting in 2009. It started with a European soccer club tracking the overall workload of players during matches. This development allowed trainers the real-time ability to monitor biometric data. Since then, wearable technology has evolved from biometric monitoring to include perceptual and psychological aspects of sports. In short, the idea behind wearables is that certain technologies can help keep athletes safe and healthy. This theory has been tried and tested successfully. An example can be illustrated by the Toronto Raptors. In 2012, the Raptors had the most injuries in the NBA. Soon after, they implemented wearable devices and began monitoring soft tissue. As a result, in 2014, the Raptors had the fewest injuries in the NBA. This is just one of the few advantages of adopting the practice.

Are there general legal concerns that sports administrators and league bodies should consider when adopting this practice?

In soccer, they are technically known as “Electronic Performance and Tracking Systems (EPTS) devices” and include wearable and camera-based technologies used to monitor and enhance player and team performance. in combination with micro-microelectronic devices and pulsometers as well as other devices for measuring the load of physiological parameters. The three forms of physical tracking devices currently available are: 1) optical camera systems, 2) local positioning systems (LPS), and 3) GPS/GNSS systems. GPS devices are used during English Premier League and Football Association (FA) training. The use of these devices must be in harmony with the respective governing bodies.

Wearable technology and athletes’ rights

Some professional leagues have comprehensive standing agreements that define the scope of wearable technology allowed per season. Some professional leagues like MLS, MLB, NBA, EPL, La Liga, etc. they have structured player organizations and associations. In professional leagues, when data is sold, it must undergo collective bargaining processes and protocols (see BOSU, Michigan-Nike Contract: The School Seizes and Sells New Player Data, (August 31, 2016).

For the NFL, the NFL Players Association reached an agreement sometime in 2017 with a human performance company called WHOOP (see Kevin Seifert, NFL Players Grab a Data Equalizer in Era of Wearable Technology, ESPN (April 24 This deal with WHOOP allowed players to sell their data, giving them the ability to roll back the NFL.

While it is difficult at this time to determine the exact content of the collective agreement in the EPL on wearable technology, it cannot be denied that the Covid-19 pandemic has expanded the scope of use of these devices. With devices ranging from wearable monitors to clothing and equipment with built-in sensors, professional teams, league bodies, as well as the companies that provide the wearables, can now collect massive amounts of data, such as an athlete’s heart rate. , glucose level, breathing, gait. , tension or fatigue. Any sports or athletic organization that develops a wearable device program or has reason to believe that wearable devices are being used by coaches and others to collect similar data should be aware of these risks and regulatory issues.

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Depending on the jurisdiction, consent may or may not be required for monitoring. Judicial decisions on the subject are almost non-existent. However, the prevailing case law on the subject appears to be that an athlete’s expectation of privacy is minimized when on team premises or when using company/team equipment (City of Ontario, Cal. v. Quon, 560 US 746, 756 (2010), O’Connor v. Ortega, 480 US 709, 717 (1987) The cases of City of Ontario, Cal. v. Quon and O’Connor v. Ortega are just some of the decisions to which author’s knowledge in which it was held that an employee may lack an expectation of privacy in technologies provided by their employer.The latter case indicated that it depended on the realities of the workplace.In situations where there are duly binding collective agreements negotiated by player unions, there can be very few problems as the player’s interests would be largely protected, however, when players are not involved or represented in the negotiation of portable technology to applicable, legal problems may arise. In Billney v. The Evening Star News, a group of Maryland basketball players sued a newspaper for invasion of privacy when their academic records were reported. The court concluded that this was not an invasion of privacy because they were public figures from the basketball team. Consequently, due to their status as a public figure, the players did not have the same luxuries of privacy afforded to them as to other students.

The Nigerian Context

In Nigeria, beyond the Constitution of the Federal Republic of Nigeria and the Nigerian Data Protection Regulations (NDPR), there is no comprehensive regulation governing the privacy and data use of Nigerians, especially athletes. However, there is a burgeoning commercial goldmine that sports and tech brands can tap into in Nigeria.

In addition to sports-focused technology companies, it would be remiss of the author not to mention the contribution of mobile, digital and social media. These advances have revolutionized the way fans interact with their favorite sports entities, opening up new channels of communication and allowing fans to enter the everyday world of athletes and teams. Mobile phone manufacturers and social media giants have begun to get involved in sponsorship, along with sports data and technology companies.

Sponsorship by technology companies is more complex than other categories of sponsorship. Instead of simply sponsoring a sporting event and placing their logo on jerseys, venues, etc., tech companies have dynamic engagement and influence with their sponsored properties. Sometimes, as in the case of Intel, IBM, or Amazon Web Services, they are the technology partner of the sponsored property, providing back-end support and collecting game and player data that can then be used to improve the property’s performance. . Or, in the cases of AT&T or Samsung, they enhance the fan experience and engagement across their devices and apps, ensuring the team/event has a positive association with their fans. This integration of technology and sponsorship leads to an authentic and credible partnership with the sponsor’s clients. Sponsorship helps tech companies easily capture new markets and increase awareness.

A great example of this is Chinese mobile phone maker Vivo, a virtually unknown name in India until its sponsorship of the biggest cricket sporting event, the Indian Premier League in 2015. Today, it is the third largest smartphone maker in India. , behind Samsung and Xiaomi. To further increase its presence in the global market, Vivo also sponsored the FIFA World Cup in 2018. SAP, the German software corporation, provides information to many major leagues, teams and organizations across multiple sports. They have partnerships with two of the biggest American leagues: the NBA and the NHL, various teams. This partnership integrates the sponsor’s products with their properties, creating a close and natural association with their properties and fans. Given the immense business benefits available to sports brands and tech companies from the use of wearable technology, it is only a matter of time before the Nigerian tech space joins the fray.

As a postscript, teams and organizations may need to improve their security policies and protocols. This would be in an effort to ensure compliance with data collection and limit its scope, protecting its vulnerabilities and lessening liability. They may include frequent background checks in addition to a thorough screening of anyone working in areas that have access to sensitive handheld devices and collected information.

Steve Austin Nwabueze is a Senior Associate, Perchstone & Graeys