On Federalism and Biometrics: The Balance of Privacy and Proprietary Rights Following Murphy v. National Collegiate Athletic Association

The Supreme Court strikes down a federal Act banning sports gambling but does not tackle issues surrounding privacy and data ownership of players’ biometric information.

by: Ayisha McHugh

Introduction

Professional and Amateur Sports Protection Act (PASPA) Legislative History

Through the Professional and Amateur Sports Protection Act (PASPA), also known as the Bradley Act, Congress attempted to “stem the growth of teenage gambling and protect the integrity of sports by proscribing the development of sports gambling.”[1]  As Senator Bill Bradley noted in “The Professional and Amateur Sports Protection Act—Policy Concerns Behind Senate Bill 474,” the premise behind the bill was the notion that “the revenue earned by the states through sports gambling is not enough to justify the waste and destruction attendant to the practice.  Just as legalizing drugs would lead to increased drug addiction, legalizing sports gambling would aggravate the problems associated with gambling.  As a society, we cannot afford this result.”[2]  In other words, Congress declared the need for a separation between sports and gambling.  The policy concerns at this time focused on the integrity of the game, but also on the activity of teenage gamblers and concerns about their future interactions as sports bettors.  The act made it unlawful for “a government entity to sponsor, operate, advertise, promote, license, or authorize by law or compact,” sports gambling.[3]

Murphy v. National Collegiate Athletic Association (NCAA)

On May 14, 2018, the Supreme Court of the United States found that whether or not “we could afford this result” or the purported damage associated with sports gambling, the PASPA provision prohibiting state authorization of sports gambling violated the anticommandeering rule.[4]  The Supreme Court noted that the Tenth Amendment granted those legislative powers to states that were not conferred on Congress by the Constitution.[5]  Not included in the legislative power conferred on Congress was the power to issue direct orders to the governments of the States, such as a prohibition on sports gambling, which the Court found to be an unequivocal dictation of what state legislatures may or may not do.[6]  Importantly, no provision of PASPA was found to be severable from the provisions at issue that were found to be in violation of the Tenth Amendment.[7]  This Supreme Court ruling marked a turning tide for many States, which repealed old laws and enacted new laws permitting sports gambling.  Notably, while the ruling presented the possibility of additional revenue for many states,[8] initial public dialogue about the prospect of sports gambling focused on who would profit from the legalization.[9]  Yet, the prospect of legalized sports gambling raised concerns from Players Associations.  Prior to the May 2018 ruling, the MLBPA, NBPA, NFLPA and NHLPA published a joint statement on sports betting focusing on addressing the “potential impact of legalized gambling on players’ privacy and publicity rights,” and calling for athletes to have “a seat at the table to ensure that players’ rights and the integrity of our games are protected.”[10]  Much of the rhetoric following the debate over legalized sports gambling focuses on the integrity of the game, a noble issue to contend with; however, issues surrounding privacy and data ownership have not been tackled with precision.

The Amorphous Landscape After Murphy v. NCAA: Concerns Regarding Players’ Privacy

Following the Supreme Court ruling, concerns regarding player’s privacy have been replayed.  Across leagues, Players Association representatives have raised compelling concerns about players’ humanity and privacy.  On July 13, 2018, NFLPA president Eric Winston, a free-agent veteran offensive lineman, told a room of state legislators that “players believe the new landscape [sports gambling] will add to the venom already directed at them by fantasy sports participants and bettors. The ‘dehumanization of athletes’ is a weekly occurrence on social media after games. A lot of people look at us as – I don’t know if it’s subhuman – but not necessarily human, not necessarily having those feelings, those issues that everyone else is having.”[11]  Casey Schwab, VP of business and legal affairs for the NFLPA, used LeBron James’s decision to join the Los Angeles Lakers and its impact on the NBA title odds as an example of the need to protect the privacy of athletes.  The Lakers’ odds were as high as 20-1 prior to landing James, but shortened to 7-2 after the decision.”[12]  MLBPA president Tony Clark, in an op-ed in the Cleveland Plain Dealer, wrote that there is a need to establish disclosure standards “that provide a measure of transparency to gamblers, while preserving player privacy and the game’s competitive integrity.”[13]

An integral element of sports gambling is data.  Data may include biometric information which should raise concerns for players’ privacy and highlight the need for an understanding of the balance between privacy and proprietary rights.  The response to broad legislative responses to the Murphy decision should not solely consider the balance of interest between bookmakers, sports leagues, and potential gamblers but between the balance of private and public life, specifically including the private lives and information of professional athletes.  This paper aims to function as a yellow card, hoping that parties will voluntarily call a timeout to process issues of privacy and proprietary rights.

Part I defines biometrics and identifies what federal protections exist to protect the private identifiable information of athletes.  Part II looks to professional sports leagues’ collective bargaining agreements[14] to identify what measures are in place to protect players’ privacy with regard to the use of wearables, what measures exist to ensure that the information they track is protected, and whether there is a provision expressly addressing the ownership of biometric data.  Part III analyzes recent agreements between professional sports leagues and sports betting data companies.  Part IV addresses the need to differentiate players’ privacy and publicity rights.  Part V conveys recommendations to ensure that biometric data is protected and is not commercialized.  This paper will argue for greater consideration for biometric data because of its unique qualities, embedded highly personal information, and lack of an applicable legislative framework for privacy.

I.                What Are Biometrics: How Are They Collected, Used, and Who Owns “Them”?

Biometrics Defined

Biometrics are “the measurement and analysis of unique physical or behavioral characteristics (such as fingerprint or voice patterns) especially as a means of verifying personal identity.”[15] More specifically, the definition is tied to the method of measuring or analyzing any particular physical characteristic.[16]  Biometric data includes measurements or records that can be used to identify people as individuals.[17]  Biometric data identifiers may be physiological in nature, such as heart rate, temperature, and blood sample analysis, or may be behavioral.[18]  Generally, sport biomechanics focus on measurements of athletes’ body loading, which may include an analysis of the interaction between the athlete and the athlete’s equipment.[19]

Reasons for Athlete Biometric Data Collection

Professional sports teams use athletes’ biometric data for myriad reasons.  The most commonly cited reasons include monitoring players’ health, wellness, and performance; establishing baselines, performing diagnostics, understanding player load,[20] educating coaches (and players) on the effects of training on players; and designing appropriate training and recovery regimens.  In short, biometric data is used to optimize players’ potential, decrease the risk of injury, or monitor already existing injuries.[21]

Athlete Biometric Data Application/Use

Commonly used devices referred to as “wearables”[22] and their associated programs have allowed for teams’ increased capacity to analyze players’ biomechanical processes, including training load.[23]  “Biomechanical data collected by wearables related to player load includes GPS locations, measured by accelerometers, magnets, and gyroscopes contained within the wearable devices.  The GPS coordinates reveal minute direction changes and reflect player speed and reactivity, tracked over time.”[24]

Wearables are commonly used during training and in games. Since 2016, MLB approved two devices, “one a special sleeve fitted with sensors aimed at understanding the stress on pitchers’ arms,[25] and another tracking players heart rate, skin temperature, and sleep cycle.”[26]  Some teams in the NFL use microchips in players’ jerseys to gather similar data (tracking players’ heart rate, skin temperature) in practice but not during games.[27]  On April 24, 2017, the NFLPA and WHOOP, the human performance company, announced their partnership.[28]  Through the partnership, NFL players have access to, ownership of, and the option to commercialize their health data.[29]

Notably as, Warren Zola, associate professor of business law at Boston College’s Carroll School of Management, states, “there is certainly an intrusiveness to wearable technology,” because biometric data provides information that isn’t available “to the naked eye, or even the high-tech-camera-enhanced eye.”  “For teams to finagle the right to strap on sensors, not just during games but during players’ off-time as well, Zola says, would be ‘a recognition that one’s body in professional athletics is a commodity.  That is very much what a team is investing in.  They’re investing in performance, and you get performance through one’s body.’”[30]

Players’ experiences in countries where biometric tracking is already the norm paint a worrisome picture… “With these kinds of devices, your body becomes the property of the team,” says [Alan] Milstein.[31]  “They may be able to determine what you’re allowed to eat, how long you’re allowed to sleep, how much sex you can have, when you’re allowed to have sex.  It’s a long road that we’re just starting to walk down, and I just don’t know who’s going to put up the stop signs.”[32]

Biometrics: Question of Ownership and Regulation

There are three operative parties who have a stake in the answer to the question of the ownership of biometric data, 1) an athlete whose data is being collected; 2) an institution or entity which wishes to use the data, (in the case at hand, the private entity would be professional sports leagues by way of their individual teams) and 3) the vendor providing biometric equipment and services.[33]  Due to potential claims of privacy and property rights, the use of biometrics and tracking likely falls under both federal and state frameworks.  Biometric data may include personal health information, which would provide protection under traditional publicity rights, Health Insurance Portability and Accountability Act (HIPAA),[34] state biometric protection statues,[35] and other privacy laws.[36]  “Under the statutory language of HIPAA, most of the medical staff employed by professional sports teams may be considered healthcare providers subject to the privacy and security requirements of HIPAA.”[37]  Importantly, no federal laws exist specifically regulating biometric data collection.[38]  “Biometric and biomechanical data are typically not categorized as personal health information (PHI) under existing federal framework, although HIPAA does regulate some biometric data when collected by health care providers.”[39] But it is important to note that while the existing regulatory framework for personal health information may be applied to biometric data, the question of ownership remains generally unanswered due to the type of information included in biometric data.[40]  Who owns this data? The following section will discuss provisions within each respective League’s collective bargaining agreement about when “wearables” can be worn, who can access the data, and in some instances whether or not the data can be commercialized.

II.             Professional Sports Leagues Collective Bargaining Agreements (CBA) regarding Wearables

Each professional sports league’s collective bargain agreement (MLB, NBA, NFL, and NHL) regulate healthcare and medical issues pertaining to players. Some leagues additionally address biometric data or the use of wearables in some fashion. The following section analyzes the provisional language regarding the use of wearables. 

National Football League (NFL)

Article 51, Section 13 (C) of the NFL CBA outlines the process for on-field microphones and sensors, stating that “the NFL may require all NFL players to wear during games and practices equipment that contains sensors or other nonobtrusive tracking devices for purposes of collecting information regarding the performance of NFL games, including players’ performance.”[41] Before placing sensors for health or medical purposes, the NFL must receive the NFLPA’s consent.[42] The CBA is silent on who owns the data created from the “sensors or other nonobtrusive tracking devices.”

National Basketball Association (NBA)

Under Article XXII Section 13, the NBA CBA addresses “wearables.”[43] The devices are prohibited in games and use in practice is strictly voluntary and constrained to one of six brands. Any team requesting that a player wear one must explain, in writing, what’s being tracked and how the information will be used.[44] Notably, use of the data is restricted to player health and performance and team on-court tactical and strategic purposes.[45] Additionally, the data may not be considered, used, discussed, or referenced for any other purpose such as in negotiations regarding a future Player Contract or other Player Contract transaction,” under penalty of a $250,000 fine.[46] This is an important inclusion, considering that athletes have expressed concerns about the use of data in future contract negotiations.[47] The NBA’s CBA, importantly, expressly prohibits the use of wearables in games, and “player data collected from a Wearable worn at the request of a Team may [not] be made available to the public in any way or used for any commercial purpose.”[48] Even with regard to the express prohibition of commercialization, there is no clear articulation on who owns the data produced by the wearables.

Major League Baseball (MLB)

MLB CBA’s Attachment 56 addresses “wearable technology,” and includes language similar to the NBA’s CBA provision on “wearables.”[49] Importantly, in subsection (4), the memorialized agreement covers the confidentiality of the information, noting that “any and all Wearable Data shall be treated as highly confidential at all times, including after the expiration, suspension or termination of this Agreement, shall not become a part of the Player’s medical record, and shall not be disclosed by a Club to any party other than…the General Manager, Assistant General Manager, Field Manager, Team Physician, Certified Athletic Trainer, Strength and Conditioning Coach, Rehabilitation Coordinator and an individual hired by a Club to manage the use and administration of wearable technology.”[50] Aside from the explicit prohibition of players wearing wearable technology in games or pregame activities (e.g., batting practice), MLB’s CBA expressly prohibits “any commercial use or exploitation of such information or data by a Club, Major League Baseball, or any Major League Baseball-related entity or third party.”[51]Similar to the NBA, MLB expressly prohibits the commercialization of data but fails to articulate who owns the data produced by the wearables.

National Hockey League (NHL)

The NHL’s CBA is silent on the use of wearable technology.

The analysis of each professional sports leagues’ CBA agreement aims to identify each leagues’ respective level of understanding of the uniqueness of biometric data and examine whether or not ownership of that data is expressly addressed. Focus on ownership of biometric data is used as a proxy. For example, patients technically do not own their medical records; rather, “patients have rights of privacy and access to their records, but neither federal nor state law explicitly extends property rights to patients.”[52] Privacy laws and long-standing professional ethical mandates prevent the sharing of medical information without a patient’s permission.[53] Biometric data functions differently, though there is some overlap with personal health information, and in many ways, the data is in a league of its own. If the understanding of data ownership is in flux or unaddressed, there is room for future violation of individual privacy and unchecked commodification of athletes’ bodies in increasingly subtle ways, especially because of a lack of “long-standing professional ethics.”

While the NBA and MLB have express prohibitions on the commercialization of such data, the NFL does not include such proscriptions, and the NHL’s CBA is altogether silent and fails to address wearables. It should be noted that each of these CBA agreements predates Murphy. With the consideration of increased revenue and prominence resulting from legalized sports betting, it is plausible to consider the integration of future amendments to existing agreements, as well as provisions in new agreements for waiving rights to sensitive information such as biometric data, which does not fit neatly into other expressly defined and protected forms of individual information such as personal health information.

III.           Agreements between Leagues and Sports Betting Data Companies

The NBA has been at the frontier of sports gambling, brokering novel partnerships that will undoubtedly set the trend for other Leagues.[54] In November 2018, the NBA signed the first gambling data partnerships[55] giving two firms, Sportsradar and Genius Sports Group, the right to sell the fastest and most accurate NBA information to bookmakers nationwide.[56] Jack Davison, Chief Commercial Officer of Genius Sport, said: “if you gave many sportsbook operators some raw data from an NBA game, they wouldn’t really know what to do with it because they don’t have the technology, or the resources or the expertise.” “That’s what they get in working with us. We’re adding a whole product layer that turns real-time data into an in-game product.”[57] It is important to consider what this would mean for biometrics, namely that “real-time data” could be included in sports gambling.[58] As of now, some of the modes by which teams acquire biometric data are reserved for practice and training; if there is increased monetary value for this type of data, it is important to consider how that might influence interaction between players, teams and professional sports Leagues. This will likely be a point of negotiation for upcoming CBA negotiations between Players Associations and Leagues.

IV.           Players’ Privacy and Publicity Rights and the Difference with Athlete Biometric Data

Distinguishing Daniels v. FanDuel From the Issue of Athlete Biometric Data

On October 24, 2018, the Indiana Supreme Court provided guidance as to the publicity rights of athletes in the context of fantasy sports, “holding that such online fantasy contests do not violate a player’s publicity rights.”[59] In deciding this case, the Indiana Supreme Court turned to the right of publicity statute, which states, “a person may not use an aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for one hundred (100) years after the date of the personality’s death without having obtained previous written consent.”[60]  The Court focused on the “newsworthy value” exception and concluded that it was applicable in the case at hand, supporting the finding that online fantasy contests do not violate a player’s publicity rights.[61]

As sports gambling progresses and all data related to athletes increases in relevance and monetary value, it will be important not only to respect the rights of athletes, but also to avoid conflating publicity rights with privacy rights and the very personal information encoded in biometric data (which may be included in general statistics if not properly segregated).

V.              Recommendations

Congress recently introduced the Sports Wagering Market Integrity Act (SWMIA) of 2018.[62] As the name of the bill implies, this comprehensive bill aims to provide federal oversight for the ever-expanding legal sports betting market.[63] Notable inclusions in the federal framework are provisions for 1) sports governing bodies’ ability to request that certain types of wagers be prohibited, and 2) requirements for sportsbook operators to use official league data to grade wagers.[64] Considering the proposed requirement for sportsbook operators to use official league data, it is clear that the NBA will continue to be a trendsetter in this area.[65] The NBA’s Agreement with Sportsradar and Genius Sports Group complies with this federal framework and ensures that the league has a courtside seat in this new arena of legalized sports betting.

Importantly, there seems to be no federal guidance on the protection of biometric information to ensure that players don’t unnecessarily lose their privacy. There is some information that should not be commercialized, even if an individual desires to waive their privacy rights. The biometric data described in this paper should be regarded as some of that unconsentable information. Furthermore, professional sports leagues should not have proprietary rights in their players’ biometric data. As Congress responds to the resounding call for a federal framework for sports betting through the introduction of the Sports Wagering Market Integrity Act, there should be guidance included regarding limitations on what data can be used and made public.

Conclusion

A discussion of data ownership and usage following the Murphy decision is inextricably linked to understanding the federal or state-by-state framework for legalized sports gambling. Wagers rely on the use of data, which is why SWMIA’s framework includes a requirement for sportsbook operators to use official league data. While the NBA and MLB prohibit commercialization of biometric data, they also prohibit the use of wearables during games, which seems to suggest a correlative relationship between when the devices are used and sharing that particular information. Commercializing or making public data attained in training, would, in essence, commercialize or make public invaluable training information. The question, then is, what happens when wearables are permitted in games, does that data become a part of the information shared with gamblers? Sports Leagues failure to consider and answer the question of ownership of biometric data poses a great risk, as this data will prove to have significant monetary value and may obtrude athlete’s privacy; especially because there are no federal guidelines as to how biometric data should be regarded. Furthermore, biometric data overlaps but doesn’t fit neatly into already carved out provisions like HIPAA. Recognizing the concerns voiced by Players Association representatives, it is important to consider what framework needs to be employed to protect the privacy and rights of athletes. If not, more than the game they play, their very bodies will become commodities.

Endnotes

[1]The Professional and Amateur Sports Protection Act—Policy Concerns Behind Senate Bill 474, 2 Seton Hall J. Sport L. 5, 5-6 (1992) (statement of Senator Bill Bradley). (Senator Bradley shared his experience as a professional basketball player, remarking on the way the alleged point spread distorted fan behavior during games— “In one game at Madison Square Garden, the Knicks were ahead by eight points with thirty seconds left in the game. We scored a basket, which put us up by ten points. Instead of cheering, however, a portion of the crowd in the Garden booed. The point spread was evidently eight instead of ten.” Senator Bradley’s explanation of the policy concerns behind Senate Bill 474 focused on the protection of sports’ values and integrity, and greatly emphasized the behavior of “one million of the eight million compulsive gamblers…teenagers. [Which] A recent Time magazine article stated that teenagers favor “sports betting, card playing and lotteries.”)

[2] Id.

[3] Unlawful sports gambling, 28 U.S.C. § 3702 (2006).

[4] Murphy v. National College Athletic Association, 138 S. Ct. 1461 (2018).

[5] Id.

[6] Id.

[7] Id.

[8] Charles Lane, States Eye New Revenues After Supreme Court Backs Legal Sports Betting, NPR, (May 15, 2018, 6:16PM), https://www.npr.org/2018/05/15/611374398/states-eye-new-revenues-after-supreme-court-backs-legal-sports-betting [https://perma.cc/LB5U-KHGY].

[9] Id.  (Andrew Brandt (director of sports law at Villanova University) stated “gambling is a huge, huge fan engagement tool.” Nielsen research is quoted estimating that while the average NFL fan who is a non-bettor watches about 15-16 games a year, the average NFL fan who is a bettor watches 45-50 games a year.”)

[10] Players Associations on Sports Betting, NFLPA (April 12, 2018), https://www.nflpa.com/news/players-assoc-on-sports-betting [https://perma.cc/HTP9-GKB7].

[11] David Purdum, NFLPA Exec on Legalized Betting: ‘Serious Consequences’ to Privacy, ESPN, (July 17, 2018), http://www.espn.com/chalk/story/_/id/24098774/nflpa-casey-schwab-says-legalized-betting-affect-player-privacy [https://perma.cc/D42U-8WVE].

[12] Id.

[13] Id.

[14] This paper looks specifically at collective bargaining agreements because they represent an agreement between the Leagues and Players Association and are negotiated for multiple League years. They are the supreme document governing relations between Leagues and their players. The paper focuses on the MLB, NBA, NFL and NHL.

[15] Biometrics, Merriam Webster, https://www.merriam-webster.com/dictionary/biometrics [https://perma.cc/4FRB-M5U3].

[16] Kristy Gale, The Sports Industry’s New Power Play: Athlete Biometric Data Domination, SPORTTECHIE (Mar. 3, 2017), https://www.sporttechie.com/the-sports-industrys-new-power-play-athlete-biometric-data-domination/ [https://perma.cc/A3DB-TK5M].

[17] Barbara Osborne and Jennie L. Cunningham, Legal and Ethical Implications of Athletes’ Biometric Data Collection in Professional Sport, 28 Marquette Sports L. Rev. 37, 38 (2018).

[18] Id. at 41 (2018).

[19] Id. at 38 (2018).

[20] “Player Load” or “Training Load” is defined as “the relative biological (both physiological and psychological) stressors imposed on the athlete during training or competition. Measures such as heart rate, blood lactate, oxygen consumption, and rating of perceived exertion (RPE) are commonly used to assess internal load. On the other hand, external training loads are objective measures of the work performed by the athlete during training or competition and are assessed independently of internal workloads. Common measures of external load include power output, speed, acceleration, time-motion analysis, global position system (GPS) parameters, and accelerometer-derived parameters.” Pitre C. Bourdon, et. al., Monitoring Athlete Training Loads: Consensus Statement, Int’l J. Sports Physiology & Performance. S2-161 (2017); Shona L. Halson, “Monitoring Training Load to Understand Fatigue in Athletes,” 44 Sports Med. 139 (2014). 

[21] Osborne & Cunningham, supra note 17, at 40.

[22] Charlotte Hill, Wearables—The Future of Biometric Technology?, Biometric Technology Today (September 2015), https://ac.els-cdn.com/S0969476515301387/1-s2.0-S0969476515301387-main.pdf?_tid=df1eca10-cd44-4022-b98f-b0be5c417bc6&acdnat=1545186428_e5c162f510f7bd30079eb93263d294b4 [https://perma.cc/YP56-J6NS].

[23] Osborne & Cunningham, supra note 17, at 41.

[24]  Id.

[25] The sensors measure the tension that pitching places on the UCL (ulnar collateral ligaments).

[26]  Jeremy Venook, The Upcoming Privacy Battle over Wearables in the NBA, The Atlantic, (April 10, 2017), https://www.theatlantic.com/business/archive/2017/04/biometric-tracking-sports/522222/ [https://perma.cc/E5LA-7AC9].

[27] Id.

[28] WHOOP Strikes Landmark Deal as the Officially Licensed Recovery Wearable of the NFL Players Association, NFLPA (April 24, 2017), https://www.nflpa.com/players/news/whoop-strikes-landmark-deal-as-the-officially-licensed-recovery-wearable-of-the-nfl-players-association [https://perma.cc/YF3J-EELW]. 

[29] Id.

[30] Venook, supra note 26.

[31] Mr. Milstein is an adjunct professor at the University of New Hampshire School of Law, specializing in sports and bioethics, who suggests that the biggest potential value of biometrics will come from understanding players’ rest and recovery.

[32] Id.

[33] Athletes and Their Biometric Data - Who Owns It and How It Can Be Used, Mintz Levin, (December 19, 2017), https://www.mintz.com/insights-center/viewpoints/2186/2017-12-athletes-and-their-biometric-data-who-owns-it-and-how-it [https://perma.cc/Y9FQ-8DA4].

[34] Department of Health and Human Services, Standards for Privacy of Individually Identifiable Health Information; Final Rule, 45 CFR Parts 160 and 164 (August 14, 2002), [https://perma.cc/9ULZ-6YXZ]. (In response to a comment about the health records of professional athletes, the Department of Health and Human Services (HHS), noted that the records of professional athletes should not be deemed “employment records, even when created or maintained by health care providers and health plans.”)

[35] For example, Illinois has a “Biometric Information Privacy Act,” which states “A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first.” (740 ILCS 14/15) Sec.15. (A). [https://perma.cc/GR6Y-QX2H]; (On May 16, 2017, Washington became the third US State to enact a biometric privacy law.) Hunton, Andrews, Kurth, Washington Becomes Third State to Enact Biometric Privacy Law, (June 1, 2017) [https://perma.cc/KK2F-VXNZ].

[36] Kristy Gale, Sports Betting and Biometrics Will Push the Publicity Rights Envelope, SPORTTECHIE. (July 5, 2018), https://www.sporttechie.com/sports-betting-and-biometrics-will-push-the-publicity-rights-envelope-law-legal/ [https://perma.cc/JFP8-B24N].

[37] Osborne & Cunningham, supra note 17, at 52.

[38]  Id at 46.

[39]  Id.

[40] NFLPA, supra note 28. In a notable exception to the descriptions of most wearables, the NFLPA agreement with WHOOP gives players ownership of data produced by WHOOP. 

[41] NFL-NFLPA, Collective Bargaining Agreement, (August 4, 2011), https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf [https://perma.cc/G2CY-GNEE].

[42] Id.

[43] NBA-NBPA, Collective Bargaining Agreement. 1, 359 (January 19, 2017), http://3c90sm37lsaecdwtr32v9qof-wpengine.netdna-ssl.com/wp-content/uploads/2016/02/2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf [https://perma.cc/52K7-RMS7].

[44] Id. at 359-360.

[45] Id. at 361.

[46] Id.; Venook, supra note 26.

[47] Mintz Levin, supra note 33; Venook, supra note 26 (“Both [Garrett] Broshuis [a lawyer involved with the suit alleging fair-pay violations in the minors] and Jeff Passan say they’ve spoken with players who expressed concerns about teams beginning to use biometric tracking in the minors, which underscores both the importance of unions in professional sports and how vulnerable minor leaguers are to exploitation. Without a union to help secure their long-term future, Passan says, “What it comes down to is, do you want to be seen as the guy who’s not cooperating? Are you going to be punished if you don’t agree to do this testing?” Since even the lightest of pushback could cost a player his job, he says, “the players end up getting taken advantage of, and Major League Baseball looks at the minor leagues as a testing ground.”).

[48] NBA-NBPA, supra note 43, at 361.

[49] MLB-MLBPA, Collective Bargaining Agreement. 1, 334-335 (2017), http://www.mlbplayers.com/pdf9/5450407.pdf [https://perma.cc/QXH3-27YV].

[50] Id.

[51] Id.

[52] Mark A. Hall and Kevin A. Schulman, “Ownership of Medical Information,” J. Am. Med. Ass’n (March 25, 2009).

[53] Id.

[54]  NBA, “MGM Resorts International Becomes Official Gaming Partner of NBA,” (July 31, 2018), http://www.nba.com/article/2018/07/31/mgm-resorts-international-becomes-official-gaming-partner-nba-official-release [https://perma.cc/JQ32-KSXA]. (In July 2018, the NBA announced a multi-year partnership with MGM Resorts International, making MGM Resorts the official gaming partner of the NBA and WNBA.)

[55] Eben Novy-Williams, “NBA Breaks Fresh Ground for Sports With First Gambling Data Deal,” Bloomberg (November 28, 2018). https://www.bloomberg.com/news/articles/2018-11-28/nba-breaks-fresh-ground-for-sports-with-first-gambling-data-deal [https://perma.cc/SB6V-845S].

[56] Id.

[57] Id.

[58] As it stands, the NBA CBA’s provision on “wearables” prevents the use or wear of such devices in games.

[59] O’Melveny & Myers LLP., “Murphy and Athletes’ Publicity Rights” (October 31, 2018),

https://www.omm.com/resources/alerts-and-publications/alerts/murphy-and-athletes-publicity-rights/ [https://perma.cc/SB6V-845S].

[60] Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018).

[61] Id.

[62] David Purdum and Ryan Rodenberg, “What you need to know about the new federal sports betting bill,” ESPN, (December 20, 2018), http://www.espn.com/chalk/story/_/id/25581529/what-need-know-sports-wagering-market-integrity-act-swmia-2018 [https://perma.cc/AT3P-J2FZ]; Zachary Zagger, “Sports Wagering Bill Is a Big Bet on Federal Oversight,” Law360. (December 20, 2018), https://www.law360.com/articles/1113700/sports-wagering-bill-is-a-big-bet-on-federal-oversight [https://perma.cc/4VBT-FAY2].

[63] Id.

[64] Id.

[65] Eben Novy-Williams, supra note 55.

Ayisha McHugh is an associate at Proskauer Rose LLP. Ayisha graduated from Columbia Law School with a J.D. in 2019.