Fitness trackers

Wearables in the Arena: The Changing Legal Landscape Governing Activity Trackers in Professional Sports | BakerHotelier

The use of wearable technology (colloquially known as “wearables”) has been on the radar of athletes, sponsors, sports teams, and leagues for years, with various stakeholders carefully balancing the need for data privacy. players with growing professional and financial interests. Following the The Supreme Court’s decision in Murphy vs. NCAA, which struck down the Professional and Amateur Sports Regulation Act and paved the way for more widespread legalization of gambling, regulating the use of handheld devices has drawn attention. Analyzing these developments is complicated by the changing legal landscape surrounding wearable technology, the privacy implications, and the different types of biometric data it can collect.

What are portable devices?

Wearable technology is a general term for a type of electronic monitor that can be worn on the body, usually sewn into clothing or otherwise incorporated into an accessory, and often connected wirelessly to the Internet to transmit collected data via sensors in the device. Wearable devices can track a wide variety of information about the wearer, such as heart rate, glucose levels, pulse oximetry, sleep patterns, gait, and other physical and physiological measurements that can facilitate the evaluation of performance and recovery in sport. These physical and physiological data points may be considered “biometric information” under the definitions of that term found in some laws. Within the broader category of biometric information is a subset of data called “biometric identifiers,” which are unique biological characteristics that can be used to identify a person. Examples of biometric information are more general data points such as height and weight, while a fingerprint is considered a biometric identifier because it is unique to an individual. For athletes and coaches, wearable devices can provide meaningful insights into sports performance, stress, rest and recovery, and their use has grown exponentially in recent years.

The Current State of Wearable Devices in Professional Sports and the NCAA

Currently, Major League Baseball (MLB) permits the use of wearable devices in games, allowing analysis of the causes of various common ailments among baseball players, such as specific stresses on pitchers. For example, a common pitching injury, a torn ulnar collateral ligament (UCL), can sideline a player for more than a year. In 2016, MLB and the MLB Players Association approved the in-game use of a sensor-loaded sleeve designed to specifically measure the stress on a pitcher’s arm throughout a game. In addition to measuring pitch count, the sleeve measures arm speed, rotation, and force on the elbow with each pitch, potentially allowing pitchers to avoid injury through rest and pitch correction. Although the sleeve is pitcher-specific, MLB players in any position may use other types of clothing; for example, players can use wrist sensors that measure heart rate and body tension over a day, heart rate and breathing monitors, or GPS trackers. Although the use of these devices is authorized during matches and practices, use of a player is strictly voluntary and may be terminated by the player at any time. In fact, the most recent MLB collective bargaining agreement (MLB CBA) stipulates that a team must destroy information collected by portable devices if a player requests it.

Similar to the MLB CBA, the 2017 National Basketball Association (NBA CBA) collective agreement establishes certain standards to address potential manipulation of apparel, codified in Article XXII, Section 13. Use is prohibited during games and use in practice is strictly voluntary. . The NBA CBA clarifies that “data collected from a Wearable worn at the request of a team may be used for player health and performance purposes and for team tactical and strategic purposes on the field. uniquely”. To honor this stipulation, any team requiring a player to use wearable technology must explain in writing specifically what is being tracked, how the team will use that data, and the benefits to the player of obtaining and analyzing the data. In addition to the player, this written explanation goes to the Wearables Committee, a six-person panel made up of three representatives from the players’ union and three from the NBA itself. According to the NBA CBA, the Wearable Devices Committee is also responsible for reviewing and approving wearable devices as well as establishing appropriate cybersecurity standards for biometrics retention. The MLB CBA has established a similar panel, the Joint Committee on Wearable Technology, made up of members from the MLB Players Association and MLB.

The NBA CBA outlines the specific consequences of misusing players’ biometric data. If the player agrees to use the laptop, the NBA CBA explicitly prohibits the use of this collected biometric data in contract and salary negotiations. Any team found in violation of the ban faces a $250,000 fine. Despite this potential threat, NBA players can still be wary of the misuse of biometric information. Under the terms of the NBA CBA and MLB CBA, players are allowed to stop using handheld devices at any time for any reason. As technology continues to develop rapidly, these agreements set important standards for ownership of this potentially sensitive data and attempt to balance team and player desires for excellence with appropriate privacy protections.

The NFL Players Association has offered its athletes the ability to monetize their own sports performance data. In 2017, the NFL Players Association announced a five-year partnership with a wearable company in hopes of accurately tracking recovery between games and practices. The agreement explicitly states that the players themselves control the data and have the right to sell it to third parties if they wish. In this scenario, ethical considerations around private data monetization are in the hands of individual players rather than teams or leagues.

In the college setting, with no players’ union to advocate specific standards regarding portable use, ad hoc portable use is regulated by school and NCAA rules. The NCAA allows the use of portable devices in games; however, it prohibits the analysis of real-time data during games to the extent that such analysis is used to make performance-enhancing adjustments. As wearable devices become more sophisticated and their use becomes more ubiquitous, it is likely that guidelines of this nature will evolve.

Other portable device laws and regulations

Currently in the United States, three states – Illinois, Texas and Washington – have laws in place regulating the collection and retention of biometric identifiers. Given the technological developments that have occurred since the Illinois and Texas laws were passed (in 2008 and 2009, respectively), it is perhaps understandable that the definition of biometric identifiers in those laws is limited to scans. from the retina or iris, to fingerprints, voice prints and hands. or facial geometry. Therefore, in their current form, these laws do not apply to many types of data captured by a wearable tracker. However, the new Washington law includes “other unique biological patterns or characteristics” in its definition of biometric identifier, which could be interpreted to cover the type of data collected by many wearable devices. Moreover, the new past California Consumer Privacy Act includes exercise or health data in its definition of biometric information, which means that data collected by wearable devices will likely be subject to a host of new regulations from June 2020.

Beyond the laws governing the collection and retention of biometric data, several state data breach laws, including the laws of Colorado, Maryland, North Carolina, and Wisconsin, have added “biometric data” to their definitions of personal information which, if compromised, may trigger a requirement to notify regulators and data subjects. As the use of biometric identifiers in everyday life becomes more commonplace and the value of data collected by wearable technology continues to increase, it is likely that wearable technology companies and their rich reserves of personal information will be attractive targets for hackers.

Given the exponential growth of wearable technology, as well as the skyrocketing reliance on biometric identifiers, it seems inevitable that additional legislation will be proposed, including perhaps laws that would govern the manufacture and use of objects and clothing that collect biometric data as well as the means in which this data can be used and shared.

Take away food

Players should educate themselves about their rights and the potential privacy implications if they choose to collect, share and/or allow third parties to access their wearable-derived data. Although not specifically covered by the Health Insurance Portability and Accountability Act (HIPAA), best practices would require similar confidential treatment for everyone who has access to this data. Leagues, teams, players, developers and other interested parties should closely monitor legal developments and be vigilant in their data protection efforts to ensure they remain compliant with various regulatory agencies and governments. various aspects of wearable technology. For more information and advice, please contact Melinda McLellan, Ronald Gather, Elizabeth McCurrach Where Robyn Feldstein.