How Is Sports Performance Data Causing Legal Unrest?

In recent years, the technology and sports sectors have become increasingly linked. This is heightened by the emergence of sports performance data, which has become embedded in sport, and used by athletes and coaches to enhance performance.

As performance data grows in popularity and use, there are legal issues which will develop as a result. This article will consider the current performance data trends, the legal implications and finally, what to expect from the sports data market in the future.

Current Trends

The use of performance data has greatly affected the sports industry on the pitch. Sports clubs have benefited from evolving technology to improve the performance of their athletes, and also to improve engagement with their fans.

Catapult Sports has been a front-runner in the sports performance world, using analytic tools to capture athlete performance. Athletes can wear trackable vests to measure statistics such as their speed and endurance levels in real-time. The technology has already extended to over 4,200 elite teams in more than 100 countries. [1] Additionally, it is becoming more popular at the grassroots level in sports. [2] The technology has played a monumental role in helping athletes gain a competitive advantage in their chosen sports.

Likewise, coaches have benefitted from Catapult’s analytics to make personalised training programs tailored to their athletes’ strengths and weaknesses. This technology has also helped coaches with making tactical decisions, such as knowing when an athlete’s peak performance level will be during a game, and when an athlete is tiring out. [3] This allows coaches to make informed substitutions to increase their team’s chances of victory.

Catapult’s analytics even extend to the treatment table – club physios can use data to identify recurring injury patterns and risk factors, to prevent and mitigate injuries. [4] With the rising number of fixtures in professional football [5], this technology has been and will continue to be of great importance.

Legal Implications

The prominent legal risk of sports performance data relates to whether players’ privacy law is breached in the processing of the data. In the UK, data protection law is governed under the UK General Data Protection Regulation [6] (UK GDPR) and the Data Protection Act 2018 (DPA 2018). [7] Athletes may have grounds to claim for personal data protection if it can be proved that the collection of their data breaches privacy law.

Project Red Card is the most well-reported case of athletes looking to protect their sports performance data. In a case that has yet to be heard, over 850 current and former professional footballers will bring claims forward against gambling and gaming data collection companies for unlawfully processing their data. [8] They will be led by Global Sports Data and Technology Group Limited, and if the case is successful, it could set a precedent which may revolutionise the way sports data is collected. [9]

One of the potential claims players will make is invisible processing. Players may claim that they were not aware they consented to their data being processed by gambling and gaming companies. [10] If this is the case, this would be a breach of Article 5(1) of the UK GDPR, which states that data must be processed lawfully, fairly and in a transparent manner. [11] Each player’s contract will need to be reviewed individually to see if this clause was included. If it turns out the players did consent, the processing will be lawful under Article 6(1a) of the UK GDPR. [12] Gambling and gaming companies may argue that players would be expected to know how their markets operate, and that they arguably shouldn’t be too surprised that their data is processed. Players, however, must pass this first hurdle to have any chance of their case succeeding.

Additionally, the type of data processed will also be a central issue. For instance, data such as goals, assists, tackles and appearances are likely to meet personal data, and this would be lawful if it’s proved the players did consent. [13] However, the processing of data which involves player health would be prohibited under Article 9 of the UK GDPR. [14] As health data is a much more sensitive issue, this could be a deeper problem for gambling and gaming companies to navigate, if this data was processed without player consent.

Another issue which will be central to the case is whether the players will receive compensation if a breach of personal data can be proved. The case of Lloyd v Google makes it clear that when personal data is processed without consent, distress alone will not satisfy the threshold for a claim for damages. [15] It must be proved that there is financial loss. In other words, the players would have to prove they suffered financially due to gambling and gaming companies profiting off their own personal data.

Lastly, the issue of whether processing is necessary may also be at the centre of the case. According to Article 6(1b) of the UK GDPR, if the processing is deemed necessary for contract performance, processing will be lawful. [16] Gambling and gaming companies with schemes licensed by the Premier League, the EFL and the SPFA may argue that their data processing is necessary to perform the contracts they already have in place. [17] However, unlicensed data collectors will have a much tougher task of proving their data processing is necessary, and are much less likely to process data lawfully.

What can we expect in the future?

As it stands, the data processing of elite athletes is likely to only become more prevalent. There has been a recent trend of football clubs partnering with sports data companies to capture player performance data. In April this year, Brentford FC became the first Premier League club to power data-augmented highlights to fans in collaboration with Genius Sports. [18] Brentford’s players now have their shot speeds, shot trails, pitch maps and a number of their in-game statistics on display for fans at the Gtech Community Stadium, in a partnership driven by AI dragon technology. [19]

With the rise in such partnerships, the frequency of data processing of players may reach an all-time high. As the front-of-shirt ban for gambling sponsors starts from the 2026/27 Premier League season [20], there may well be a trend of clubs opting for sports data companies as their sponsors. As a result, the outcome of Project Red Card will be very significant. It will either put restrictions on data processing or it could further open the doors to a data processing frenzy. What will happen next remains to be seen.

Sources

[1] Catapult Analytics, ‘Sports Analytics: What is it and how it improves performance’. https://www.catapult.com/blog/what-is-sports-analytics#:~:text=Sports%20analytics%20is%20about%20using,an%20athlete%20or%20team%20successful last accessed 5th October 2024.

[2] Pitch Pulse, ‘Tech on the Pitch: ‘How Technology is Transforming Grassroots Football’ https://pitchpulse.co.uk/community-grassroutes/technology-transforming-grassroots-football/ last accessed 5th October 2024.

[3] n(1).

[4] n(1).

[5] The Guardian, ‘Feel the burnout: the curse of too much football can only be cured by player power’   https://www.theguardian.com/football/2024/jan/08/feel-the-burnout-the-curse-of-too-much-football-can-only-be-cured-by-player-power last accessed 5th October 2024.

[6] UK General Data Protection Regulation.

[7] Data Protection Act 2018.

[8] Farrer & Co, ‘Inside Project Red Card’ https://www.farrer.co.uk/news-and-insights/project-red-card/ last accessed 5th October 2024.

[9] n(13).

[10] Law Careers.Net, ‘A look at Project Red Card’ https://www.lawcareers.net/Explore/CommercialQuestion/TLT-LLP-Footballers-performance-data#:~:text=Who%20typically%20owns%20performance%20data,the%20processing%20of%20that%20data last accessed 5th October 2024.

[11] n(11) Art 5(1).

[12] n(11) Art 6(1a).

[13] n(13).

[14] n(11) Art 9.

[15] Lloyd v Google [2021].

[16] n(11) Art 6(1b).

[17] n(13).

[18] Genius Sports, ‘Gtech Community Stadium to launch augmented AI-powered in-game highlights.’ https://www.geniussports.com/newsroom/gtech-community-stadium-to-launch-augmented-ai-powered-in-game-highlights/ last accessed 5th October 2024.

[19] Ibid.

[20] The Guardian, ‘Premier League clubs ban gambling sponsors on front of shirts from 2026-27’ https://www.theguardian.com/football/2023/apr/13/premier-league-clubs-ban-gambling-sponsors-on-front-of-shirts-from-2026-27 last accessed 5th October 2024.