Recently, sporting world has witnessed a new controversy called "Project Red Card" handled by the company of former Cardiff City manager Russell Slade. Project Red Card is the term coined to represent a lawsuit which will be filed by former footballers (expected to be over 400 in number) with respect to the use of performance data of the players.1 In a brief the question that the lawsuit raises is whether the companies (betting, gaming, fantasy sports etc.) or other portals (online or offline) can use the player performance data of players to educate or assist the clients or punters or gamers to participate in the betting, gaming or fantasy sports?
Indian Express has cited Richard Dutton (director of UK-based legal advisory firm ELIAS Partnership) stating "The data in question is the performance data. It's the sort of thing that lot of data companies are using to inform other companies – betting companies or gaming companies – to make odds or create games, and it's different to image rights,"2 Richard Dutton explains that making notes, researching on players and compiling information about players and their performance is unrestricted, however if you decide to sell the data i.e. commercially exploit the data, then such commercialization may need consent of the players. Explaining the lawsuit Dutton further states "Individuals don't own data, what they have are data rights. What's happened here is the players' data rights have been misused. That is the principle behind it. What we're suggesting is that those data rights have been used unlawfully because they haven't been provided the consent."3 The lawsuit by Project Red Card mainly relies on the General Data Protection Regulation (GDPR), which has been formed by the European Union, and the Data Protection Act of 2018 in the United Kingdom. The Project Red Card is hopeful of winning a settlement and reimburse the players with their due payments for use of their performance data.
Does Private Data include Performance Data?
In light of the unprecedented and one of the kind lawsuit, it is important to understand the Data protection regulations in EU and UK which is primary target market of the lawsuit, even though once a favourable order is issued then the reach of the lawsuit may be extended worldwide through different forums. As the Data Protection under GDPR and Data Protection Act of 2018 (DPA) are very detailed and exhaustive, therefore a gist of the application of these laws will be discussed here.
The Data Protection under GDPR and DPA mainly focus on protecting Personal data and the most important question for succeeding in the lawsuit is whether the performance data of a player is a personal data of the player.
Definition of Personal Data
'personal data' means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
Player performance data, whether Public or Private?
Under the GDPR, Article 6 of the Regulation provides that "Lawfulness of Processing" which states:4
- Processing shall be lawful only if and to the extent that at least one of the following applies:
(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;
(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.
Can Players or Sports person claims rights over Performance data?
When a player or sports person sign up with any official board or sports body, then such player or sports person becomes a party to a contract. For example, Virat Kohli has an agreement with BCCI and for any play or tournament he intends to participate, he will require a clearance from BCCI to avoid any clash or conflict and all such participation is subject to various policies and regulations placed by BCCI. Similarly, the Players of football clubs are signatory to various agreements and regulations.
When we talk about private information then such information is to identify a private information of an individual, whereas players as a sports persons are a public figure recognized as a celebrity and information about their performance, records and other aspects are not private but information relevant for public. It is important to note that when a discussion is made on the performance data then we talk about the player (a public personality) who is known because of their personality as a sports person. Performance data is the most important public information which enables the public to associate the player with particular sports and his/ her records and performance in the said sport. The performance data and other information of the player as a sports person (including but not limited to height, fitness, records, overall performance, scoring rate, accuracy etc.) are the most important information for public to associate and value the player for his/ her sports (it such kind of player information that helps the player make a fan base, make public image, associate as a recognized player in the sport etc.).
Therefore, when such performance data is identifying the person as a player (a professional) then such performance data may ideally not be treated as private information. If professional conduct and information are treated as private information, then every information can be classified as private information which may not be the ultimate intention of the data protection laws. Data protection is important to safeguard the personal information of the player, but the professional information may not be regulated as private information. For example, the overall performance of Cristiano Ronaldo through his career in terms of his speed, accuracy, number of goals scored, number of wins (both league and international), number of assists made, goal accuracy etc. is professional information which is relevant for the public as these information make the player a well-recognized football personality, however the information such as his private life information, bank account details, investments, financial management of his earnings etc., will be considered as private information and protected under the data protection regulations. Further, since these performance data based on speed, accuracy etc. are not recorded or compiled or analysed by the player himself but through the official board or any other data company engaged in the business of player analysis, therefore the question of a player having a right over such performance data created by data company is debatable. It is true that the information is associated to a player, but the information standards are created by a data company, it is the perspective and analysis of a data company based on which a player can be rated or ranked. Such performance analysis developed by a third party/ data company should ideally be identified as the property of the data company due to the resources and investment made by such data company in compiling player information.
Usually the performance data derived by any data company is based on certain standards such as speed of player, shooting accuracy and passing accuracy of the player, fitness of player etc. If we look into these parameters, they are not created by the player but analysed by a third party. A player can practice to improve his/ her skills and other aspects however the performance data are actual stats derived from a careful calculation and analysis done by a data company. Since there is no control of the player over creation of performance data, therefore allowing right over performance data to players seems difficult to justify.
Similarly, when a player signs a contract with the official body of the sport/ club/ tournament then under the contract the player has certain strict regulations and policies to be adhered to and the control over the routine and workout of the player is managed by the Sports authority or the team manager. Under these circumstances, where the routine, workout and schedule of the player is managed and administered under strict checks of the official board/ sports authority/ competition board, then the information about the performance, which is a result of the player-authority contract, cannot be said to be information over which player can have a right.
It is further stated that a player's ratings based on various standards are developed by the official board, club itself, tournament board etc. simultaneously as well. For example, an international cricketer will have an ICC ranking based on his overall international performance; on the other hand when the same cricketer plays in IPL, the IPL may provide separate statistics and rating for the said cricketer as per his records or performance in the IPL; similarly the betting/ gaming companies may also derive its own statistics based on varied standards to provide rating to the same cricketer in their fantasy leagues or games or gambling. In such a situation, a cricketer has different performance data varying as per the performance in different tournaments based on varied standards and therefore in light of such varied performance, can it be said that the players have control over their performance and therefore a right must vest with the player for using performance data which is most likely a compilation derived by the analytics of a data company?
When data company or official board or tournament board or any other agency is executing some analytics which is deriving a performance analysis for a player, then such analytics along with the result compilation of performance is the intellectual property of the such company developing it. Therefore, when a betting/ gaming company who intends to use such analytics developed such companies or agencies, then due consideration or royalty must be paid to the owners of the analytics.
Performance analysis can be done on various parameters and such parameters are proprietary information of the data company or the agency developing such parameters. Consent of player for use of such parameter is a long catch and must be decided in combination with image right or celebrity rights. On the other hand, since the information is with respect to a player therefore, a claim over player's reputation based on their statistics can be argued by the player however the reach of such argument especially considering that player is a public recognized celebrity, is still to be tested.
This unprecedented event has raised major questions not only for the fans but for the companies dealing into betting, gaming, fantasy leagues or any other portal or services using the performance data of the player. In order share an understanding we have prepared a list of questions that may be raised through the controversy:
- What is performance data of player discussed?
Performance data are compilation of information about a player based on certain standards like speed of player, shooting accuracy and passing accuracy of the player, fitness of player etc. Based on the overall information compiled, a player is given a rank or rating which is then used by various betting/ gaming companies (including fantasy leagues etc.) for educating and helping the clients/ gamers to make an informed choice to select a player and participate in the betting/ games.
Standards for compiling Performance data may vary from sports to sports.
- Whether the standards used for compiling performance data a public information?
Performance data are derived by any data collecting agency through the information available in public domain either via broadcast of a game or through referring to any earlier statistics available online or through any third-party portal offering such information.
When such information is used by the betting/gaming companies or fantasy league portals, for commercially exploiting the information attracting more audience and deriving profits from the participation of the clients/ gamers, then use of such information is argued as illegal.
- Is it not true that information publicly available can be used by any one for any purpose and no one can claim monopoly or rights over such information?
This is the most controversial question especially considering Project Red Card.
Yes, it is true that information available publicly can be used by anyone but not for any purpose. Such use of publicly available information has some restrictions such as providing due credits to the original author/ source, not claiming monopoly over the information and most importantly not commercializing the information used without paying due consideration.
Merely because certain information is available in public, does not mean that such information is available for free commercial use. Many of the information such as performance data of players are researched, compiled and made available by data companies or the official association of the said sport. These data are then used by the betting/ gaming/ fantasy league companies to promote and attract clients/ gamers to participate and use their services. Since these performance data are crucial for a client or gamer to determine their strategy to create their team or compile a team combination, therefore it is now questioned whether use of such performance data also requires players consent.
- Isn't Performance data covered under celebrity rights?
Celebrity rights are a bundle of rights including publicity rights, reproduction rights, distribution rights, rental and lending rights, making available rights, personality rights, privacy rights and so on;5 however using performance data of the player has never formed a part of debate. Performance data since publicly available was usually overlooked, however, Project Red Card has opened a new opportunity for players, i.e. exploitation of their performance data for commercial activities like betting/ gaming etc.
- If the performance data is collected and compiled by the data companies or provided by the official board or association of respective sport, then can the players claim rights over such performance data?
Counsel for Players
Even though the information is compiled by the data companies or official association or board of respective sport, still the player will have moral rights as the performance is an activity originating from the player and therefore performance data derived from the activity of the player will need permission of the player to be utilized for any commercialization.
Ideally, publication and commercialization of the performance data must be done with the authorization of the player and for any commercialization of the performance, due consideration/ royalty must be paid to the player as well.
Since a player has no control over his/ her performance and the performance data varies as per the parameters determined to extract data of performance, therefore for the purpose of performance data what is very important is the parameter of determining the performance and thus the company deducing the parameters and compiling the data holds the right over the information as well. Also since players cannot control their performance and can only be analysed based on their performance on different games, therefore such performance data is ideally the proprietary information of the data company deriving the information and not the player himself.
- Scope of Privacy Rights and Data Protection in India?
India has valued and recognized Right to Privacy as a constitutionally protected fundamental right.6 Recently, the Hon'ble Supreme Court in Justice K. S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.,7 observed that "Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent." Accordingly the Court disposed of the matter by holding that "The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution."
Further, the Parliament has recently introduced the Personal Data Protection Bill, 2019 which aims to provide for protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the rights of individuals whose personal data are processed, to create a framework for organisational and technical measures in processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorised and harmful processing, and to establish a Data Protection Authority of India for the said purposes and for matters connected therewith or incidental thereto.
Additionally, personal data is defined as "'personal data' means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling;"
The Data Protection Bill protects the personal data of a natural person however where the natural person also has a professional life, as a celebrity or public figure, then the question arises is that can professional data qualify as personal information? Personal characteristics of a natural person may be different from the professional characteristics of the same person. For example, a football player may be very aggressive on the field and may be identified as a fierce and dominant player on the field/ sports world; however, the same player may have very different approach in his personal life (possibly very calm and composed personality). The player's fierce and dominant attitude on the field may make him the 'in-demand' player and lead a huge fan base for his statistics of goals, accuracy, speed etc. in football, however the personal/ private characteristics will not bear any result for his reputation as a player in football. Therefore, it is very important to distinguish between private and other information and especially in case of a person where the nature of professional conduct makes him/her a public figure or celebrity.
The Road Ahead
Considering that players intend to control their performance data, it will be interesting to note how the Court addresses the issue of allowing players control the data over which they actually have no control. It appears to be very strong statement, but it is true. Players can practice and undergo rigorous training to improve their performance, but players cannot control their performance. It is the data companies or the agencies involved in analytics who develop certain strategy derive the performance data and therefore allowing player to control such information to which they have no control, under the data protection regulations will be an interesting catch. Further, explanation and interpretation of the term private information or data will be the major look ahead as the players or celebrities live two lives, one is personal and one is public figure, and therefore understanding an overlap between these two lives of same individual is a major look ahead in the Project Red Card. The identification and differentiation between personal/ private data and professional/ public data is very important for the following reasons:
- The compilation of the performance data may not be subject to the players consent; however, its commercial exploitation may restricted subject to authorization if the professional data can be qualified as private data under the Data Protection Regulations.
- If the professional conduct is identified separately and is termed outside the ambit of private data, then the performance data compilation by data companies will be free from using the information to the extent that they are created by such companies or where information is borrowed from another entity, then due consideration/ payment is made to such entity.
If allowed, the sports world is looking forward to a major change especially in terms of circulating information about a player and the business either gaming, betting or fantasy games, all are about to face a major challenge in adjusting the revenue against the consent fee of the players.
6 Gobind v State of Madhya Pradesh, (1975) 2 SCC 148; R Rajagopal v State of Tamil Nadu, (1994) 6 SCC 632; People's Union for Civil Liberties v Union of India, (1997) 1 SCC 301; in Thappalam Service Cooperative Bank Limited v. State of Kerala, noted"In several judgments including Kharak Singh Vs. State of U.P. and others AIR 1963 SC 1295, R. Rajagopal alias R.R. Gopal and another Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People's Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. Right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, 1948.."
7 2017 (10) SCALE 1; WRIT PETITION (CIVIL) NO 494 OF 2012.
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