Should Your Wearables Be Shareable? The Ethics of Wearable Technology in Collegiate Athletics

Marquette Sports Law Review Volume 32 Issue 1 Fall Article 6 2021 Should Your Wearables Be Shareable? The Ethics of Wearable Technology in Collegiate Athletics Sarah M. Brown Katie M. Brown Follow this and additional works at: https://scholarship.law.marquette.edu/sportslaw Part of the Entertainment, Arts, and Sports Law Commons Repository Citation Sarah M. Brown and Katie M. Brown, Should Your Wearables Be Shareable? The Ethics of Wearable Technology in Collegiate Athletics, 32 Marq. Sports L. Rev. 97 (2022) Available at: https://scholarship.law.marquette.edu/sportslaw/vol32/iss1/6 This Symposium is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact . BROWN & BROWN 32.1 1/10/22 8:50 AM SHOULD YOUR WEARABLES BE SHAREABLE? THE ETHICS OF WEARABLE TECHNOLOGY IN COLLEGIATE ATHLETICS SARAH M. BROWN* & KATIE M. BROWN** INTRODUCTION In the era of big data, data collection in sports is booming not only in the form of performance data, but also biometric and real-time positional tracking data. Such data has ushered in the era of a fully “quantified” athlete.1 Wearable technology (wearables) is a multi-billion-dollar business that has greatly impacted sport competition at all levels. Specifically, professional and amateur organizations, including the National Collegiate Athletic Association (NCAA) utilize wearables, a technology that measures athlete biometric data (ABD) or their physiological measures, like heart rate and body temperature, to gain competitive advantages. Use of wearables has become ubiquitous in NCAA sports, with different teams across all divisions continuously collecting ABD.2 Teams can put the ABD into AI-driven video analysis to aid in personnel and strategy decisions and bring in additional revenue.3 Increasing the level of performance is critical for success, and wearables has enabled universities to do just that. * Dr. Sarah M. Brown is a Clinical Assistant Professor at Southern Methodist University, Dallas, Texas. Dr. Brown earned her PhD from Texas A&M University and her JD from Marquette University Law School. Her research focuses on the marketing and legal aspects of brand management, creation and extension with new technologies and social impact of sport. ** Dr. Katie M. Brown is an Assistant Professor in Sport Management at Texas Tech University, Lubbock, Texas. Dr. Brown earned her PhD from Texas A&M University. Her research focuses on legal issues concerning brand management, intellectual property, and the interfaces of sport marketing, sport law and sport economics. 1. Nick Busca, As Biometric Boom, Who Owns Athletes’ Data Depends on the Sport, WASH. POST (Feb. 2, 2021, 8:00 am), https://www.washingtonpost.com/sports/2021/02/02/athletes-biometrics-dataprivacy/. 2. Alicia Jessop & Thomas A. Baker III, Big Data Bust: Evaluating the Risks of Tracking NCAA Athletes’ Biometric Data, 20 TEX. REV. ENT. & SPORTS L. 81, 87 (2019). 3. Id. at 82. BROWN & BROWN 32.1 98 1/10/22 8:50 AM MARQUETTE SPORTS LAW REVIEW [Vol. 32:1 For example, Oregon State University (OSU) has a data and media infrastructure team that is dedicated to providing resources and tools for its athletic department to collect and utilize data.4 This team helps the OSU baseball coach understand a pitcher’s velocity, performance against left-andright-handed batters, and even a pitcher’s ability to throw strikes during late innings of a game.5 Other universities, such as the University of Nebraska, University of Virginia, and William & Mary have embraced wearables to obtain data-driven insights and results are showing that access to this data is having a positive impact on athlete performance.6 While data collection has been shown to have a positive impact on team success,7 there is also evidence that ABD and collection of such data can be misused or invade on an athlete’s privacy. Smart technologies allow for increased surveillance of players that extends well beyond the playing field.8 For instance, athletic departments such as Harvard and Penn State University are utilizing WHOOP wearable technology for continuous-monitoring of their athletes, including sleep cycles and fatigue throughout the day.9 Additionally, there are already several examples of well-known universities and coaches who blur the line between voluntary and mandatory use of wearables.10 Further, universities, such as the University of Michigan, have included their athletes’ biometric data in sponsorship agreements with companies like NIKE.11 It is evident that universities and even third parties, like NIKE, have an interest in college-athlete biometric data. In fact, data has been collected from college athletes and sold to third parties without bringing college athletes into the conversation.12 This creates an inherent imbalance of power where decisions are made or potentially forced upon athletes to allow access to intimate personal data. Further, college athletes are not protected by labor laws or collective bargaining agreements, like professional athletes. Thus, the purpose of this article is to discuss the use of wearable technology and ABD in college athletics 4. Chris Hayhurst, Data Analytics Helps College Coaches and Athletes Optimize Training and Performance, EDTECH MAG. (Aug. 6, 2019), https://edtechmagazine.com/higher/article/2019/08/dataanalytics-helps-college-coaches-and-athletes-optimize-training-and-performance. 5. Id. 6. Id. 7. Id. 8. Jessop & Baker, supra note 2, at 88. 9. Id. 10. Alex Shultz, Why is This Wearable-Tech Company Helping College Teams Track How Often Athletes Sleep, Drink, and Have Sex?, DEADSPIN (April 4, 2017, 12:32 PM), https://deadspin.com/whyis-this-wearable-tech-company-helping-college-teams-1794218363. 11. Karen Weaver, Names, Images, Likenesses . . . and Data: Another Issue for NCAA Athletes to Take Seriously, FORBES (Jan. 1, 2020), https://www.forbes.com/sites/karenweaver/2020/01/01/namesimages-likenessesand-data/?sh=22b67a9a21cc. 12. Jessop & Baker, supra note 2, at 92. BROWN & BROWN 32.1 2021] 1/10/22 8:50 AM ETHICS OF WEARABLE TECHNOLOGY 99 and the resulting power imbalance, explore any rights college athletes have in their ABD, evaluate current laws and policies in place to protect studentathletes, and finally propose a framework that helps protect college athletes’ rights without sacrificing the benefits of ABD collection. I. WEARABLE TECHNOLOGY AND ABD IN COLLEGE ATHLETICS There are over 400 million wearable smart devices available on the global market.13 Wearables are “small electronic and mobile devices or computers with wireless communications capability that are incorporated into gadgets, accessories, or clothes, which can be worn on the human body, or even invasive versions such as micro-chips or smart tattoos.”14 Despite the prevalence of wearables today, their inception is still very much in its infancy and the industry is expected to grow at more than 20% annually.1 (...truncated)