Australia—Whether it is collision data being collected from player mouthguards at the Women’s Rugby World Cup, or FIFA’s Football Data Ecosystem tracking and distributing players biometric data in real time, professional sport is pushing the envelope in gathering and using player biometric data and will increasingly come up against player privacy issues.

Global law firm, Dentons, and its Melbourne partner Matthew Hennessy is drawing attention to some of the potential issues faced by professional sports bodies as they utilise ever improving technology that measure athletic performance in more sophisticated and intimate ways.

The FIFA Data Ecosystem, which includes optical tracking systems, provides a live feed of data to a range of sources including teams, media, broadcasters and competition organisers.

Dentons partner Matthew Hennessy said that under Australian law, sports organisations do not in the first instance own player data and have ongoing obligations under the Australian Privacy Act in addition to a range of state specific legislation.

“All sports organisations need to recognise their legal obligations in relation to collecting and using athletes’ personal information,” he said. “Even laws relating to workplace surveillance can be relevant and as gathering this data gets easier the potential for disputes increases.”

FIFA has recognised the potential issue and states that it developed its Football Data Ecosystem according to the stringent European (GDPR) privacy regime, while the US National Women’s Soccer League’s first collective bargaining agreement enabled players the choice of wearing GPS wearable tracking devices and giving them the opportunity to commercialise their data if they wished. FIFA adopted its own Data Protection Regulations in 2019 which are limited in scope to personal data processed by or on behalf of FIFA or one of its Member Associations.

“With the Brisbane Olympics already being positioned as the high-tech games, with smart stadiums and interactive media, we are only seeing the beginning of this issue,” Hennessy said. “As the technology gets cheaper and easier it may also become an issue for recreational athletes.” Hennessy warns that there remains scope for player data to be manipulated and mis-used. He notes that this is a complex area – one where the laws governing the intellectual property rights associated with player data and its exploitation are non-harmonised, overlapping and complicated. He notes that the laws governing these issues are simply not keeping up with the technology.

The Professional Cricketers’ Association recently joined “Project Red Card” – which is an initiative started in the United Kingdom but spreading around the world advocating for athletes to have more control over their data. In July 2023, the global player union, FIFPRO agreed to develop a data management system aimed to give athletes more control of their performance data.

There is pressure on teams to use biometric data for many purposes. Reports surfaced last month in JAMA Network Open about the AFL trialling a headset that measures concussion symptoms revealing that, on average, the changes detected by the headset showed concussions lasted 12 days longer than the players’ symptoms.

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