United States: Athletes And Their Biometric Data – Who Owns It And How It Can Be Used

Last Updated: December 20 2017
Article by Brian H. Lam

More than ever before, biometric data, a term often used broadly to refer to metrics related to human characteristics, is being collected at a faster pace. Devices of all kinds are now able to able to track and store data such as fingerprints, heartrate, and other potentially sensitive data. This tracking can be accomplished through a variety of mechanisms including smartphones, watches, and fitness tracking bands of all kinds. Because of the nature of information which can be collected, it is of particular interest in sports.

While the general consumer issues of such data collection are certainly daunting, tracking of biometric data for athletes can present special issues. At the college level, student-athletes may have concerns that the data being collected could be used to make player management decisions that could affect playing time, positions or even scholarship opportunities. At the professional level, athletes may share similar concerns and are worried that the collected data could be used against them come contract negotiation time.

Understanding the Three Part Relationship Is Essential

In most situations where athlete biometric data is being collected there will be three main participants in the data collection scenario: (1) the athlete whose data is being collected; (2) an institution or entity which wishes to use the data, typically a school or professional organization; and (3) the vendor that provides the biometric equipment and incident services. Understanding which entities have what rights and responsibilities regarding biometric data collected will require recognizing where each entity fits in the three part relationship, as well as whether any special circumstances exist that would influence these rights and responsibilities.

In the United States, biometric data collection falls under a patchwork of regulations, at both the federal and state level. The applicable rules are based primarily on the characteristics of the athlete data subject and the institution or entity that wishes to collect the biometric data, the relevant jurisdictions, the specific types of biometric data being collected, as well as any contractual commitments between the parties. Further, there may be contractual rights at play, particularly at the professional level.

Relevant Characteristics Which Determine Applicable Laws

I. Specific Considerations For Student Data Subjects

In most situations the analysis begins with the athlete data subject to collection. Is the athlete a student? If so, consider whether the athlete is a K-12 student which would likely be most relevant in the context of high school athletics. As noted in our firm's privacy blog, Cal. Ed. Code § 49073.1, requires that local education agencies (county offices of education, school districts, and charter schools) that contract with third parties for systems or services that manage, access, or use pupil records, to include specific provisions regarding the use, ownership and control of pupil records, which could include biometric data.

Further on the private side, the Student Online Personal Information Privacy Act (SOPIPA), requires education technology to comply with baseline privacy and security protections. Former California Attorney General Kamala Harris provided guidance for those providing education technology for K-12 students, which would likely implicate sensitive biometric tied to individual students. Delaware has enacted a similar law. Individuals operating in this space would be wise to check any applicable whether there are any applicable state laws in their situation.

At the federal level, the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) could also be implicated. As a reminder, FERPA applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Under FERPA generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. It also grants parents certain rights which transfer to the student once the student turns 18. The definition of "personally identifiable information" in § 99.3 includes "biometric record" as part of the list that constitute personally identifiable information.

II. Specific Considerations For Biometric Collection Vendors

Vendors that collect biometric athlete data, as well as the business that contract with these vendors should be aware of the Illinois Biometric Information Privacy Act ("BIPA"), on which additional background can be found here. The Act is being actively litigated, and applies to "any 'private entity' — including employers — collecting, storing, or using the biometric information of any individual in Illinois – no matter how it is collected, stored or used, or for what reason." Certainly, professional sports entities as well as the companies they work with in this space should consider their obligations under BIPA.

III. Professional Sports Organizations, Players Associations and Contractual Issues

Certain professional sports leagues and associated player organizations may have their own rules regarding collection and use of biometric data. For example, the National Football League Players Association (NFLPA) via its newly formed athlete-driven accelerator, the OneTeam Collective, has a partnership that makes WHOOP the Officially Licensed Recovery Wearable of the NFLPA.

As part of the agreement between OneTeam Collective and WHOOP:

  • NFL players will own and control their individual data collected with the WHOOP Strap 2.0.
  • NFL players will design custom licensed bands for the WHOOP Strap for personal use and commercial sale.
  • The NFLPA and WHOOP will study the effects of travel, sleep, scheduling, injuries, etc. on recovery and generate reports to advance player safety and maximize athletic performance.
  • NFL players will have the ability to commercialize their WHOOP data through the NFLPA's group licensing program.

The National Basketball Association's collective bargaining agreement (CBA) limits how teams may use data collected from wearables. Under the restriction, "data may not be considered, used, discussed or referenced for any other purpose such as in negotiations regarding a future Player Contract or other Player Contract transaction (e.g., a trade or waiver) involving the player," which allows for an arbitrator to impose a fine of up to $250,000 to any team that violates the provision.

The collection of biometric data on athletes is likely to an active area of regulatory interest for years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Brian H. Lam
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions