Legal Rights In Performance Data: Why Athletes Need To Dig Down For Data Mining

Professional athletes are used to leveraging the law to protect themselves, whether that is their likeness, name, financial arrangements, or private lives. But what about protection from the exploitation of statistics regarding their fitness, training results or performance in competition?

The importance of statistics is not lost on athletes or teams; winning and losing is now more than ever based on precise metrics. Sports clubs are likely to closely monitor and analyse their athletes’ performance and health data. But while athletes may well be used to seeing in-depth data regarding their performance (win-loss ratios, scoring record, injuries, etc.) what they now face is a growing number of external entities who are not only actively monitoring and ‘mining’ this data, but also seeking to capitalize on opportunities to leverage it for financial gain.

The question, therefore, is whether and to what extent athletes’ performance and health data is protected by law? It is a question currently being asked by a group of 850 professional footballers under the banner ‘Project Red Card’.1 The group are reportedly seeking compensation for the trading of their personal data over the past six years by various companies, and they also want an annual fee from the companies for any future use.

This article examines the issues involved in data mining and the potential broader application of the law to such practices. It looks in turn at:

• Project 'Red Card' and data mining

• How Red Card applies to the broader field of play

  • Principle extends to many sports

  • Why individual sports may feel the impact more

  • The international dimension

  • Health data

  • Profiling (data scraping)

• What are my performance data rights as an athlete?

  • Class actions and angles of attack