This two-part feature series on bioethics explores the benefits and possible ethical implications of DNA testing and biometric tracking of professional athletes. This article discusses wearable devices, part 1 looks at genetic testing.
Imagine if Iron Man‘s Tony Stark were real, and his bionic devices were used not to power his role as a superhero, but instead to gain an edge in athletic competition. That world, in which super humans with super abilities can achieve new athletic feats, is what proponents of wearable technology and biometric player tracking envision when they muse about the future.
Technologies such as the Catapult Sports’ chest-mounted trackers or smartwatches from Fitbit, Apple, and Whoop are touted as tools to reduce injury and tweak training to target peak ability. Devices that promise lofty feats do so by monitoring granular levels of performance and recovery. Their invasiveness promises unprecedented levels of personalization that could fundamentally change athletics. Proponents say these technologies will have enormous benefit for athletes, teams, leagues, and organizations. Others, however, warn of the bioethical concerns associated with trackers, and caution their use.
Much like the issues associated with DNA testing, the legal areas surrounding the biometrics gleaned from wearable devices used by pro athletes remain, at best, grey. The Health Insurance Portability and Accountability Act generally ensures that patients maintain control of their data, and can decide who sees what. But a clause in HIPAA states that exceptions can be made by an employer when employees are required to maintain a certain level of physical fitness to do their jobs, making the disclosure of health records a condition of employment.
According to Barbara Osborne, professor of sports law at the University of North Carolina at Chapel Hill, that can empower teams to waive HIPAA’s privacy protections, and compel players to disclose their health information. The complications are compounded when taking into account the fact that athletes’ healthcare professionals are often team or league employees.
Osborne teaches courses in UNC’s department of exercise and sport science. Together with Jennie Cunningham, a higher education law fellow in UNC’s office of university counsel, she wrote an article in the Marquette Sports Law Review in 2017 titled “Legal and Ethical Implications of Athletes’ Biometric Data Collection in Professional Sport.” Osborne said there are currently no federal laws that specifically regulate biometric data collection. That’s partially because biometric and bio-mechanical data are typically not categorized as personal health information under the existing federal framework, though HIPAA does regulate some biometric data when collected by healthcare providers, Osborne said. In the case of athletes, once their private biometric data is considered a term of employment, the contents of that data are no longer considered protected health information under law.
Much of how this market shakes out in the coming years will depend on how well players’ unions defend their members when challenging and renegotiating collective bargaining agreements. The current CBAs that govern the five primary U.S. professional leagues barely touch on biometrics. The NFL’s CBA has specific terms related to injury data, requiring players to waive HIPAA protections and disclose relevant data related to any injuries. That document also allows the NFL to require players to wear on-field sensors, although the league must seek the NFL Players Association’s consent before using those for health or medical purposes. This clause is why every uniformed NFL player is now required to wear Zebra sensors, the devices behind the league’s Next Gen Stats, in his shoulder pads. The Zebra sensors are considered non-invasive since they’re only tracking non-private information such as player location, acceleration, and speed during games.
The only CBA that specifically mentions wearables is that of the NBA. In 2017, the NBA and National Basketball Players Association negotiated a new collective bargaining agreement, adding a provision for tracking devices. The league’s CBA now includes a number of provisions intended to protect athletes from the ill effects of wearables, such as banning the use of athlete biometric data in contract negotiations and ensuring wearable usage remains voluntary. Like the NFL, however, the NBA does have a non-invasive mechanism in place for in-game player tracking via a partnership inked in 2016 with Second Spectrum, though that tracks movement using cameras rather than wearables.
The NFL’s CBA is set to expire in 2020. Though the next wave of negotiations between the league and NFLPA may not have started in earnest yet, a deal between a wearables company and the union last year might offer a clue as to where things could be headed. In 2017, the NFLPA became the first players association in professional sports to partner with a wearable technology company when it invested in Whoop through its athlete-driven accelerator, OneTeam Collective. Under the terms of that deal, NFL players will maintain ownership of their health data, but also may be able to commercialize that data through the NFLPA’s licensing program.
“It’s an interesting space with a lot of grey area and it’s developing quickly,” said Sean Sansiveri, the NFLPA’s vice president of business and legal affairs. Sansiveri oversees the union’s health and safety initiatives and helped orchestrate that deal. “Whoop was an ability to plant a flag.”
As part of the agreement, the NFLPA has distributed Whoop 2.0 bands to current and incoming NFLPA members, enabling players to voluntarily measure and analyze biometrics such as sleep, strain, and recovery. According to Sansiveri, if a market for their biometric data should ever arise, the union will have an established mechanism in place to ensure that professional football players are not only protected but also well-positioned to profit off their private data if they choose to do so. The Supreme Court’s ruling on sports betting in May, and the expanding state-by-state legalization of sports betting, might well create exactly that market.
To date, coaches have mostly been using biometrics to protect players from injury and to train them to reach optimal levels of performance. Trackers are also being used to populate media streams, as we’ve seen with the NFL’s Next-Gen Stats, and to inspire increased levels of fan engagement. But coaches, leagues, owners, and media companies are all in the business of making money. As NFLPA President Ahmad Nassar suggested at SportTechie’s State of the Industry event, that motivation could disproportionately affect athletes if protocols aren’t established that protect privacy and data ownership.
“There’s very little legal precedence,” Osborne said. “The law is always struggling to keep up with technology, and the current structures in place are really limited in providing protection. It’s the Wild West and it probably won’t be fully addressed until someone raises an issue or files a lawsuit.”
Professional athletes have expressed a range of opinions about player tracking technologies ranging from lightheartedness and business savvy to concern and confusion. For them, the use of player tracking and DNA testing will require a constant reevaluation, comparing potential positives against possible negatives.
Despite the legal grey area and the lightning speed in which leagues, players and owners are trying to keep up with innovation, though, there’s evidence that those in control of such regulations are interested in figuring out a way to use technology for the betterment of sport.
In 2016, at the bionics-focused Augmented World Expo in Santa Clara, Mounir Zok, the former director of technology and innovation for the U.S. Olympic Committee and current managing director at N3XT Sports, said that sports are “very, very, very fast approaching the superhero stage.” He predicted a near-term future in which wearable sensors are just as important to elite players as other equipment, with athletes honing their ability using sophisticated sensors and focused high-performance labs.
“Tony Stark is not anymore a science fiction character,” Zok said. “Tony Stark will be on the field of play.”