Big Data Analytics in Sports: Controllership, Privacy, and Commercialisation

14 April 2023

Recent technological enhancements in the sports world have spurred a momentous shift towards massive data analysis: personal parameters of athletes processed by algorithms offering detailed information about their performance. In concrete, MarketsandMarkets™ predicted the global sports analytics market size to grow at a CAGR of 27.3%, with the market reaching $8.4m by 2026. As a rapid increase in performance analysis extends itself globally, the cross-industry engagements subsequently forged have been significant to the legal landscape. Big data in sports comprises performance data, ranging from traditional statistics (i.e. amount of game appearances), to advanced data derived from elaborate analysis of data (i.e. biometric data: pulse, blood oxygen levels etc.) The latter has proved problematic regarding questions of data ownership and exploitation.

This publication aims to expound upon the growing role of big data in sports, the shift to athlete influence over data rights exploitation, and breaches of data protection legislation in the sports realm.

**Technological developments ** To outline the contribution of performance analytics to data rights, the technological developments enabling the former will be briefly laid out. Most notably, wearable technology is a significant contributor to data points for exploitation. In football, GPS trackers monitoring a player’s movement enable AI to advise clubs on possible signings. Players with bad form are crossed out by the algorithm, or have a reduced chance of obtaining a good contract when the line-up is based on data analytics. Recently, the National Hockey League has enhanced the puck and player tracking system; players will produce 200 data points a second and the puck will register 2,000 data points a second. This will account for a massive leap in data for teams to aggregate, as well as the further financial exploitation of data, which will be explored in the next section.

**Commercialisation of data ** An increase in data points engenders greater commercial exploitation of an athlete’s performance data. Multiple commercial drivers for data collection, such as a basis for betting odds, team selection, and future contract negotiation, ought to be balanced with the athlete’s informed consent. Notably, Racing Partnership Ltd v Sports Information Services Ltd [2020] EWCA Civ 1300 illustrates the challenges to exploiting live sporting data as a commercial asset. Racing Partnership Ltd, which supplies live betting and horse racing data, brought a claim against Sports Information Services which provided an unofficial feed of race day information. The Court of Appeal reversed the High Court judgement, by holding that Sports Information was not liable for breach of confidence in collecting and sharing data from horse racing arenas which the claimant had an exclusive right to exploit. This case underlines the complexity emerging from legal protection which can be afforded to commercially valuable information. In 2017, NFL players reached an agreement with WHOOP, a wearable technology company, which enabled the player’s collection and sale of personal data. The issue, however, arises where sportsmen have no opportunity to change personal data they feel misrepresents them. Wearable sensors, for instance, may indicate an individual’s underlying health, and thus be exploited by health insurers of potential employers. Or, misleading data may subject athletes to public criticism and humiliation, in turn damaging their personal brand. This raises the issue of the controllership of data- whether it is in the hands of the league, individual team, or player.

**Project Red Card ** Project Red Card, an initiative seeking to bring legal proceedings on behalf of approximately 850 UK football players against the commercialisation of their data without consent, demonstrates a fundamental power shift in concerns over data rights. Athletes have been increasingly demonstrating a willingness to utilise such platforms to protect their data privacy. Project Red Card relates to the transparency of data processing, calling into question the equality of systemised use of player performance data. However, the UK Supreme Court ruling in Lloyd v Google LLC [2021] UKSC 50 implies a reluctance to consider claims dealing with the loss of data controllership. Nevertheless, under the GDPR (General Data Protection Regulation), athletes have the right to access data, request rectifications and erasure. This freedom has the potential of creating gaps which may reduce the utility of performance datasets. Consequently, what the Project Red Card demonstrates is the importance of clubs and sports stakeholders closely following the exploitation of their players’ personal data and their rights. Additionally, they must reconsider how performance data is to be dealt with if players take legal action to seek returns and protections from their data.

**Data Privacy in the law ** Finally, having considered several components of massive data analysis, the regulation of data and its enshrinement in the law ought to be taken into account. Data privacy is deeply enshrined in EU and UK law, seeking to strike the right balance between the free flow of personal data and one’s right to privacy. The GDPR regulates the processing of personal data in the EU, stating that a legal basis is required for processing personal data. Sports teams often obtain consent as a legal basis through player contracts. This ensures players retain various rights, notably: access and automated decision making. More recently, this September, ahead of the 2022 Men’s World Cup, the Charter of Player Data rights was launched by FIFPRO. Its objective is to protect the privacy of professional football players via the implementation of global industry standards. It also aims to allow them to benefit from personal rights to manage information about their performance and health. FIFPRO’s recent charter was developed in collaboration with FIFA- this is not uncommon. Organisations will continue to work together in the coming years to instigate common industry standards.

This charter, underpinned by current legislation, is one of the global benchmarks for the protection of individual rights. At a time of unparalleled innovation, the further developments in the law to accommodate complex questions of personal data ownership are keenly anticipated.

The upcoming years bring much to look forward to in the sports realm. In 2023 alone, large-scale events, such as the World Rugby Cup, Cricket World Cup, and Women’s World Cup, will undoubtedly be employing such technology to further data analysis. As demonstrated, they ought to be accompanied with the sufficient measures to protect personal privacy and data scrutiny. The ownership of data points, transparency in players’ contracts, and data commercialisation guidelines ought to be refined to ensure the fairest outcome. Indeed, the law must develop at the same pace and standard as technological enhancements in sports to remain pertinent and legitimate.