Ownership Of Athlete Biometric Data In Canadian Sports

• Published date: 14 September 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Privacy, Privacy Protection, Sport
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Jake Cabott and Les Honywill

What you need to know

• Biometric data obtained from an athlete's use of wearable technology may be valuable.
• Organizations and athletes must be aware of the privacy laws surrounding the use, storage, and transfer of biometric data obtained from wearable technology.
• Subject to contracts or collective bargaining agreements athletes retain significant ownership rights over their biometric data.

Introduction

Biometric data derived from wearable technology (wearables) has not only become an essential tool in athlete training and injury prevention, but also a highly sought-after and lucrative commodity for the sports betting industry. However, when teams or organizations ask athletes to use wearables, interesting and unresolved legal questions arise about who has the right to use, transfer, and sell that data.

In Canada, the Personal Information Protection and Electronic Documents Act (PIPEDA) and a 1992 decision from the Supreme Court of Canada suggest that athletes hold ownership rights over their biometric data. As the law struggles to keep pace with rapidly evolving technology, athletes, teams, institutions, and sport organizations should be aware of their rights and responsibilities with respect to the use, storage, and transfer of biometric data.

What is biometric data?

Biometric data refers to biological information that can be obtained from an athlete's use of wearable technology and includes everything from pulse rate and blood glucose to oxygen levels, sweat rate and sleep rhythms. Biometric information assists athletes and teams in optimizing performance and injury prevention by measuring work load on joints, muscles and ligaments, as well as providing important athlete development data derived from training and competition.

Why is biometric data so valuable?

Leverage points between athlete and team

Biometric data may serve as a heavy leverage point working for, or against, amateur athletes who are trying to make a team, or professional athletes trying to negotiate their next contract. With access to an athlete's biometric data, team management can observe wear and tear on an athlete's body and make decisions based on future risk of injury, rather than simply focusing on in-game results.

The use of player health information in player personnel decisions by professional teams is well-documented. One example occurred in 2013, where college standout defensive tackle Star Lotulelei was projected to be a top-3 pick in the NFL draft. However, Lotulelei...