Great advances have been made in the way elite athlete performance data is collected and analysed. But when using this data there are many legal factors to consider to ensure that the rights of the athlete are protected.
The area of data protection law in sport can be very complex. We will look at just one, albeit very important aspect of data protection in professional sports – performance data. If you would like to discuss your use of performance data in your club or organisation, and how we can help you comply with data protection laws, please call me on 029 2000 2339 or email me on andrew@iolis-legal.com today.
Technology growth
Technology has always played an important part in sport. Accuracy of timing, race starting, photo and video finishes, video replays to name but a few that we have all seen develop over the years. In more recent years, the monitoring of individual athletes has become more feasible and to ever greater degrees of measurement both in training and, more crucially, during play.
It used to be a case of the trainer’s notebook and a good stopwatch to record time over distance, rate of repetition or duration before fatigue to measure a level of ‘fitness’ or ‘stamina’. These factors were recorded alongside the achievement on the field of each athlete, height jumped, time over 100 meters, distance covered on the football field etc. along with factors about dietary intake, weight and body mass index data.
After events, the data would be tabulated and analysed giving the coach an overall idea of how the facets of the ‘fitness’ resulted in improvements during competition. Trainers were also able to create conditioning benchmarks to predict relative performance between competitors and to some extent analyse the competition, if they were able to obtain the data. This gave rise to a deal of secrecy about performance data gathered during training. Like all data, it is a valuable commodity.
Modern analysis is far more sophisticated and uses a greater number of inputs. Many of these inputs are made possible by advancements in biomedical science. Blood testing, Heart rate variability (HRV) monitors and many other medical tests are now within the reach of a non-clinical setting and the ability to capture a large amount of data and inter-relate it, has built a richer picture of each individual athlete and their progress and reaction to training regimes.
Intrusion
One consequence of the advancement and application of monitoring technologies in sport, is the intrusion upon the athlete’s privacy. The boundary between the professional and private lives of elite sports people is becoming increasingly blurred. The widespread use of GPS and location sensitive wearable devices that capture movement data allow an insight into factors outside the training arena to be taken into the overall picture. There has traditionally been trust between the athlete and the coach but technology like location tracking may erode this trust and become detrimental to the relationship.
As managers and coaches, you need to consider the rights of the individual athlete and the protections afforded to them under data protection regimes such as the GDPR in Europe, along with fundamental rights afforded by human rights legislation. You will need to see and consider potential conflicts between privacy laws and the use of intrusive performance data, especially in top-level professional sport.
Much of the data that is gathered is relating to the health of the person. Many smart devices are used such as HRV monitors that can give team bosses live ‘in play’ data to help inform them of individual and team performance.
It can be argued that often this data is used to protect the health and safety of athletes and to ensure they are prevented from harm and in part this is true. But it still leaves the issue of the rights of the individual.
Performance data and the law
Under the GDPR, you must document a lawful basis for processing special category data, of which health data is a part. This legal basis is very restricted. In general, the occupational health and safety of an employee along with occupational medicine are acceptable. It is difficult to make a case for these bases in regard to the training and performance enhancement of an athlete as a principle outcome from data use. It is usual to require consent for the processing of health data in this way.
When considering consent, there is an issue in the relationship between an athlete and their club. Consent must be freely given, and regard must be paid to the potential imbalance of power between an employer and employee. There must be no condition attached to this consent and the athlete must not be treated any differently should they choose to withhold such permission. There are examples of regulatory action and fines across Europe in cases where employers had wrongly relied upon consent to process employee data.
It is entirely reasonable, however, that health data monitoring is used to prevent harms such as injury or long-term health problems whilst athletes are undergoing often intensive training and competition. This is allowable under the GDPR and arguably a duty under domestic law. There are some caveats to this. The data must be under the supervision of a health professional. For major sporting organisations such as premier league football clubs this presents little problem as most have team doctors. One thing to be wary of though, a physiotherapist is not deemed a health professional when it comes to the handling of health data.
The differentiation of data collection by purpose: avoidance of injury; maintaining health; improving performance; team selection; improvement programming etc., makes the administration of legal bases complex. Should an athlete withdraw permission for certain types of data collection and processing, it may be difficult to continue the usual business of training and to fully remove historical data that has relied upon the existence of health data elements within it, whilst ensuring that the athlete is not treated any differently.
Another potential issue is the right of the data subject, the athlete, to have a copy of all their data in a usable form. This data is of immense commercial value and your organisations may have invested heavily in the technology and use of this data. A collection of performance data about an athlete can potentially enhance their value during contract negotiations. Despite your club’s investment, you cannot effectively prevent the athlete from obtaining a copy of the data under their rights in data protection law.
All too often, a player’s relationship with their club can end acrimoniously. As with all employment disputes, we see a lot of Subject Access Requests made very early on in a dispute with the employer. The level of specialist data that organisations are now collecting about their elite athletes will make for some difficult analysis when accusations of poor performance are used to justify the treatment of individuals. This is especially important in the case of junior entrants into high-level sport when competition is fierce, and stakes are high.
Making progress
We are a very long way from the trainer on a bicycle with a clipboard and stopwatch cycling behind the athlete and shouting words of encouragement. His notebook and pencil have been replaced by wearable technologies, smartphones and ‘big data’. Sports clubs have a lot of complexity to manage when it comes to athlete data and more and more, you will need to rely upon data protection legal expertise to guide you when it comes to the justification and management of performance data. Good policies, a sound understanding of data protection law and robust processes and procedures are essential in the modern sports club. The gains of well managed performance data are potentially big, as are the risks if you get it wrong.
The sports performance data industry is expected to grow to be worth £3.6 billion ($4.6bn) by 2025 with the ability of live tracking and analysis fuelling the demand. Cloud technologies are placing the computing power and technology required for enhanced performance analysis within the reach of smaller clubs and organisations by driving down cost. There are many factors you will need consider when choosing platforms for sport performance data not least of which should be the compliance of the system with data protection legislation.
The future of performance data and the benefits it can bring to elite athletes is assured, but you must use this data in an open and transparent way to ensure the trust of the athlete and to protect their privacy and rights as an individual. The rewards can be great for both the athlete and your organisation but getting the legalities right is paramount.
If you need help with using performance data in your club or organisation while staying on the right side of the law, please call me on 029 2000 2339 or email me on andrew@iolis-legal.com today.