Nic Couchman | ‘Biometric data rights’ and the quantified athlete – a new frontier

Nic Couchman, head of sport at law firm Charles Russell Speechlys, considers the possible IP rights implications of biometric data.

Nic Couchman, head of sport at Charles Russell Speechlys.

In the ‘surveillance economy’ of 2020, our personal consumption, viewing and travel habits can now be captured and tracked in real time. Increasingly, our exercise, sports, fitness, nutrition, lifestyles and physical activities are also being monitored and measured, by our phones, wearables, watches and sports equipment. In some countries medical records are becoming digitised from birth. We can have our DNA tested, and our genetic predisposition to disease assessed. AI and quantum computing will only accelerate these extraordinary changes. The ‘quantified human’ is not far from becoming a reality.

High performance humans, elite athletes, are in the vanguard of this data train – the ‘quantified athlete’ has arrived already.

Measuring the health, habits, capability movement and performance of elite sports people is a high growth industry.

The types of data being captured and tracked include everything you would expect – speed, distance, power, strength, lung capacity, heart rate, blood pressure, jump height, reaction time, grip strength, etc. Add cadence, torque, acceleration, body composition, lactic acid, breathing rate, hydration, sleep pattern and many more existing, and yet-to-be-developed measurements, and it’s possible to capture thousands of data points per second per athlete.

Sports science and technology have given rise to a whole new species of data. Athlete Biometric Data (ABD). Few sports bodies, and even fewer sports businesses, are really getting to grips with its implications, but its impact will be powerful and enduring.

Biometric, physical or physiological data have a particular value in professional sport. High performance athletes are valuable assets. Any advantage to be gained from understanding and quantifying their physical capabilities, and weaknesses, is useful.

And the use cases and applications for ABD are expanding from training, coaching, match preparation and injury mitigation, to media-rights exploitation, games, fan engagement and no doubt, eventually, betting.

The availability of aggregated and anonymised biometric data sets could undoubtedly deliver hugely beneficial insights for health, injury reduction and safety research. In the wrong hands, however, it is not hard to see how the misuse, or badly-thought-through use of biometric data could damage careers, distort competition, and undermine the integrity of sport.

From a legal perspective, health data, biometric, and (some types of) physiological information are, typically, private and confidential to the human being to whom they relate. Data protection regulatory regimes acknowledge this, notably the European Union’s General Data Protection Regulation (GDPR).

In the USA, the California Consumer Privacy Act 2018 (CCPA), which came into force on January 1, 2020 and is expected to be something of a template for other US states, also protects biometric data, as does the Health Insurance Portability and Accountability Act of 1996 (HIPAA). US and European laws are becoming more closely aligned in confirming that the power is with the people. Data subjects (i.e. the people in relation to whom the data relates, not the people who collected, measured or stored the data), have the ultimate say over whether and how their personal data can be used, and for what purposes. This will include athletes, both professional and amateur, as much as any other individual. And, under data protection laws, a data subject can withdraw his or her consent on notice.

A new ‘biometric data right’?

So, is a new type of sports right – a ‘biometric data right’ – on the horizon, and, if so, who owns it? There is no express ‘proprietary right’ or IP, in biometric data itself, yet, but the effect of the data protection laws is that, if a data subject says no, a third party can’t use it. In a sports commercial context this effectively gives the athlete the power to license his or her data.

In theory, therefore, the athletes hold the key. However, this is a complex and rapidly evolving area, with multiple stakeholders and potentially affected parties. As sport, fitness and health converge, access to data, and the need for well-informed policies and protocols will accelerate. New standards, approved by the stakeholders, will be required in many areas, for example the validation of wearable technology, the capture and storage of ABD, data security, anonymisation of data, the access of athletes to their own data, and more. Until such standards are established, the uncertainties over ABD ownership and usage could deter investment.

The governing bodies of sport are, or it is to be hoped, will soon be, looking closely at their role and responsibilities in this evolving domain. There is also a big role for player unions to advocate for the players’ position, and in the US, the big player associations are looking closely at this area in relation to their collective bargaining agreements.

Questions around ABD, its relevance, use, ownership and control, are starting to feature in all kinds of sports negotiations, from media and data rights, to player contracts and transfers. Who will own an athlete’s ABD database? Will we eventually see the quantified athlete having their own, portable, ‘black box’ of personal biometric and health data, which they can own, control and exploit throughout their career?


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