Professor Jodi Balsam Weighs in on the Legal Issues Raised by Wearable Technology in Sports

07/06/2018

In a recent interview with Law360, Professor Jodi Balsam, a sports law expert and former in-house counsel at the National Football League, discussed legal issues that accompany the use of wearable technology in sports. Wearable devices—such as those from Garmin, Fitbit, and athletic companies including Nike and Adidas—are transforming sports through the collection and use of data to improve performance of individual athletes and teams.

Balsam addressed two areas where the vast amount of information gathered by wearable devices raises legal issues that current laws and labor contracts are not equipped to handle: the potential effect on players’ values and ownership of the data. As she points out, the technology has pros and cons, particularly for professional athletes.

“There is a lot of good that can come from this,” said Balsam. “It also can be another revenue stream for everybody. Players get a share of that too. To the extent that data can be used for enhanced broadcasts, fan engagement, ancillary entertainment products, fantasy [sports] and other things, you can sell it and people are going to pay for it—that is money in everybody’s pocket.”

However, Balsam cautions that the information can just as easily be used against athletes, and there are legitimate privacy concerns. “The risk that players are probably most concerned about is that someone is going to pull this data and pull a “Minority Report” on them,” she said, referring to the 2002 science fiction film in which law enforcement can arrest people before they commit crimes based on predictions from psychics. “You assume that this kind of data can be used to predict future performance and player value…but maybe the data can be misread.”

Another critical question concerns ownership of the data, which has significant implications for monetizing and controlling how the data can be used. Certain metrics, such as speed, can be observed and measured, but wearable devices collect a variety of data on an athlete’s vital signs, such as heart rate. Ownership of this data is likely to be contested among players, teams, and leagues, says Balsam.

“The players are going to say once you get below the skin line, anything that is artificially or mechanically collected that is otherwise invisible and is identifiable, we own it as part of our publicity and you have to buy it from us or get our permission to use it—or even get our consent to collect it,” Balsam said.

Balsam worked for the NFL for 12 years prior to teaching. At the Law School, her courses focus on Professional Responsibility and Sports Law.