The sports analytics and data market has experienced exponential growth over the past decade, with an estimate that this industry will reach an unprecedented valuation of $8.4 billion by 2026. Several factors have contributed to this rapid development, notably adopting AI and ML technologies that made it easier to collect and calculate player Performance Data.
This growth surge has attracted various data aggregators to capitalize on its profitability through data exploitation, by means of selling or licensing the Performance and Competition Data of the players to data aggregating companies, including bookmakers, punters, game developers, etc. These companies have been utilizing this data to make accurate predictions about match outcomes, odds and player development with unprecedented precision. Athletes who stand witness to the commercial exploitation of their “Performance Data” are now questioning the use of personal data without their explicit consent by such data aggregating companies. In response, many of the companies have asserted that it is not the players’ Performance Data being sold or licensed, but rather the Competition Data of the sporting event.
This has sparked various debates as to what “Performance Data” is and how it is different from “Competition Data”. There is a thin line of difference between “Performance Data” & “Competition Data”. While “Competition Data” refers to the collection of information and statistics of a game such as outcomes, goals scored, and possession percentages and falls within the rights of the sports entity holding the event. While on the other hand, “Performance Data” comprises of medical data of the players including heart rate, blood glucose levels, sleep patterns, and other biometric data captured using the help of wearable devices such as trackers, smartwatches, and patches and falls within the rights of the employing entity under contract. Nevertheless, data aggregating companies justify the use of Performance Data by claiming that information about player health, healing rate, or stamina can also help determine the outcome of a sport event, thereby falling under the category of Competition Data. The growing concern is that athletes are unaware of how their Performance Data is being processed and used let alone its packaged licensing to third parties.
In an effort to point out this acute concern a group of 850 athletes from various football leagues, under the leadership of Russel Slade’s Global Sports Data and Technology Group (GSTD) are proposing to file a lawsuit titled Project Red Card. They have served pre-litigation letters to at least 17 data aggregators claiming the violation of their protected personal data in contravention of Articles 6 and 9 of the General Data Protection Regulation (GDPR), which prohibit processing and exploitation of personal data and special category personal data of an individual without their explicit consent. Richard Dutton, the representative of Project Red Card, during his conversation with Indian Express, explained that “Individuals don’t own data, they have data rights”. While this may be true, the concept of Competition Data blurs this line and provides enough of a lacuna for data aggregators to thrive on the exploitation of personal data under the disguise of Competition Data. Project Red Card gained so much traction that the Professional Cricketer’s Association (PCA) and Rugby players have now joined in on the action carrying their numbers to well over 2000.
The main contention raised is that athletes have not explicitly consented to the use of their data (which consent as per the GDPR is explicitly required to be obtained) by game developers, fantasy leagues, or bookmakers. Project Red Card makes for such an interesting development because of the questions it raises towards the use of personal data and the requirement of explicit consent with regard to the use of Performance Data. Interestingly, rather than seeking to halt the use of Performance Data entirely, GSTD aims to regulate its use, respecting the diverse preferences of athletes. For instance, some athletes, particularly those who follow Islam, oppose the use of their Performance Data by bookmakers due to religious restrictions. Additionally, Project Red Card also seeks compensation for the use of Performance Data over the past six years, emphasizing the need for fair and transparent data practices in the sports industry which will not only prove beneficial to players but also to data aggregators who wish to avoid litigious claims. To tackle and streamline the problem, data subject access requests (DSAR) are proposed to be circulated to the players, which will provide the athletes with detailed disclosures in relation to utilization and exploitation of their Performance Data. Once the DSAR are submitted, the players can have the option to provide their explicit and informed consent on the utilization and exploitation of their Performance Data.
Project Red Card is a pivotal moment in the sports tracking and analytics industry. As athletes seek to reclaim control over their Performance Data, the case will address critical questions about consent, ownership, and the ethical use of Performance Data. This legal battle could set a precedent for claiming damages, use, and management of Performance Data by data aggregators. The outcome of this case will not only impact the athletes involved but also shape the future landscape of data rights and privacy in the sports industry, potentially leading to stricter regulations and better protection for athletes’ personal information.
Authors: Shaanal Shah, Parth Shah & Vishal Menon