By Brian Socolow, of Loeb & Loeb LLP
Wearable fitness technology is everywhere in sports these days. In the amateur world, CrossFit fanatics and weekend warriors alike are checking their FitBit or Jawbone stats, clocking their running or cycling mileage and analyzing their golf or tennis swings, and in professional sports wearable technology companies are working with teams and leagues to develop and implement cutting-edge technology aimed at reducing injuries, aiding performance, improving coaching and even enhancing fan engagement. Every U.S. professional sports league has implemented some form of wearable technology program and embraced the new data analytics. But while innovations in wearable technology bring improvements and new opportunities, it means new legal issues concerning the use of the data. The upside may be evident, but sports law will continue to face new challenges as wearable tech evolves and the interested parties react.
How the ‘Big Four’ Are Using Wearables
Wearable tech appears to be a natural fit for a sport such as Major League Baseball, where statistics are supreme. One of the biggest developments is the near-ubiquitous mThrow smart throwing sleeve and iOS app, by sport-tech clothing company Motus. The sleeve collects three-dimensional motion data and generates key metrics relating to pitching, including workloads on the ulnar collateral ligament, and teams use the technology (including recommended daily throw limits) to help maintain arm health. According to the mThrow site, 27 of 30 MLB teams are using mThrow as a way to protect pitchers from torn UCLs and season-ending Tommy John surgery. A number of MLB players are also reportedly using in-bat motion sensors made by companies including Zepp Baseball, Diamond Kinetics and Blast Motion to track and analyze players’ swings during training to optimize their performance and reduce the risk of injury.
In contrast to Major League Baseball, where the implementation of wearable technology is at the team level, the NFL has adopted wearable technology on a league-wide basis. Last season, the NFL began a partnership with Zebra Technologies to gather data collected using sensors on players’ shoulder pads. The sensors capture precise location measurements in real time during games, as well as speed and distance data. Zebra’s MotionWorks server software processes the information and produces a variety of stats. Beginning this season, fans can watch NFL games enhanced by these “NextGenStats.” The NFL is also sharing some of the data with its broadcast and other partners, including providing stats for on XboxOne.
Wearables have also made their way into professional hockey and basketball. The NHL is working with Australian company Catapult Technologies to develop wearables that interpret skating load and volume, player speed, force sustained in collisions and even which of the skater’s legs is working harder. And more than two dozen NBA teams reportedly use Catapult’s OptimEye (or similar technology) to track and analyze player performance, using motion sensors on player jerseys in conjunction with GPS or antennas. The hardware and software together allow teams to look at biomedical data, including impact forces, turn rates and orientation, as well as tactical information, such as two-dimensional animations of the play in real time or post-practice. NHL and NBA teams are using these technologies to evaluate an injured player’s readiness to return, by comparing his performance in training to benchmark data, among other training uses.
Wearable Tech — Big Data, Big Money, Big Legal Issues?
The development and use of wearable technology has already forever changed the professional sports landscape, and more changes are coming as teams and leagues inevitably find new ways to use the increasingly vast amounts of data they get from the technology. From the standpoint of the technology companies, there is big money to be made in wearable technology. According to technology industry analysis firm IHS Technology, it’s already a billion-dollar industry and growing rapidly. IHS predicts that global revenues for sports, fitness and activity monitors will grow from $1.9 billion in 2013 to $2.8 billion in 2019.
With big data and big money come big legal issues, however. While sports teams are moving full speed ahead into the implementation of wearable tech, they are also moving into uncharted legal territory.
Privacy, confidentiality, data ownership and use. Some of the toughest challenges surrounding wearable technology will focus on who owns and has access to the data, and what the range of acceptable uses for it should be. At present, the ownership question hinges on who collects the data — and it appears that the leagues and teams own at least the raw data, as well as whatever aggregation and analysis they undertake.
What they can do with the data is yet another question.
The issues surrounding the use of information collected from professional athletes in some ways reflect the issues surrounding data collection by any employer, and involve questions of privacy and confidentiality? At what point does the information become so personal to the player that the player’s privacy rights may be violated? Does a player have any reasonable expectation of confidentiality in any information about him — including the data that team or the league collects?
There are also questions unique to pro sports. Can analytical data on individual players be shared (with or without confidentiality protections) with broadcast partners, sports commentators and analysts? Can it be used in video games? Can it be given (or sold) to fantasy sports contestants? In the case of the NFL, at least, the answer appears to be yes to all of those questions.
Beyond the sanctioned use of data by the league and teams, there is the risk of inadvertent data leaks and purposeful hacks. The vast amount of data that professional sports teams and leagues may eventually collect, store and use would give “stealing the other guy’s playbook” a whole new meaning. It’s unclear at the moment, both what regulatory scheme, if any, would offer any protection and, in the professional sports realm, what constitutes reasonable cybersecurity protection for information collected from wearable technology devices. And, as the data becomes increasingly detailed, the risks increase: hacking by stalkers, improper use by management, demands by insurers, or requests for discovery in litigation.
Labor concerns. What teams and leagues can do with the player data — including who has access to it — is certainly an issue to be covered by collective bargaining agreements and player contracts. While player performance statistics and other data have always played a role in salary and contract negotiations, until recently the categories of data available have been limited. As the availability of data grows, however, so too does the possibility that analytics may reveal information, including previously undetectable biometric data, minute changes in player ability, or indicators of long-term health and future injury tendencies — information that teams may interpret to predict future declines in performance, even for athletes currently performing at the top of their games, and use in salary and contract talks. And access to this data may be one-sided, if teams and leagues are collecting but not sharing data. The National Basketball Players Association appears to have already raised the issue, citing reports that teams have already begun to use data from wearable technology in contract talks.
Patent disputes and trade secrets. With so much money at stake, fights over intellectual property are inevitable. In California, wearable tech companies FitBit and Jawbone are going at each other — in and out of court. In one lawsuit, Jawbone alleges that Fitbit recruiters contacted as many as 30 percent of Jawbone’s employees, eventually hiring several who allegedly took trade secrets and other confidential information out the door not only in their heads, but on thumb drives as well. Jawbone has also filed several patent-related actions, and FitBit retaliated in September, bringing its own patent infringement suits against Jawbone in California and Delaware federal courts. Jawbone has also petitioned the U.S. International Trade Commission to prevent Fitbit from importing its allegedly infringing products. The ITC has announced that it will initiate the investigation, but the case does highlight questions of breadth and potential indefiniteness in claim construction. Sarvint Technologies has also brought suit against Adidas and other defendants for patent infringement over products such as the Adidas miCoach training shirt. The defendants argue that Sarvint abandoned the patents at issue were abandoned over eight years ago, and Adidas has asked for summary judgment, claiming that equitable estoppel or laches should apply because of the plaintiff’s “unreasonably long delay.”
Where Does Pro Sports Go From Here?
The implementation of new wearable technology has far outpaced the development rules, regulations or guidelines on its use. In some areas, such as labor, teams and leagues will have to grapple with questions unique to pro sport, and in others, such as privacy and intellectual property, the growing body of law surrounding the development and use of wearable technology will inform and shape pro sports reaction to these challenges.
Brian Socolow is a New York-based partner in the Sports and Entertainment & IP Litigation practices at law firm Loeb & Loeb LLP.
