Data in sports

 

Data analytics in sports was first popularized by the efforts of Billy Beane during his reign as General manager of the Oaklands Athletics baseball team (also portrayed in the commercial film Moneyball). However, it’s a common practice now for sporting and athletic organizations today to monitor the performance of their athletes. This could involve collecting data such as information about a player’s speed, or how many times the individual passed the ball. In addition, data is being collected from the players during their training sessions and actual matches to better gauge the performances of the players and to determine methods of improving them.

 

Furthermore, football clubs themselves have been actively covering advanced and detailed medical data such as cardiovascular metrics, body composition, distance covered, respiratory patterns in a game and medical history to assess the physical and athletic conditions of the players.

 

However, the lawsuit has taken cognizance of the potentially illegal processing of data by betting companies, fantasy sport companies who utilize the information to predict the performances of players and to determine the odds in a game or over a specific player’s performance.

 

Sports data and GDPR

 

The data collected by these organizations could ostensibly fall within the definition of “personal data” in the GDPR. Some of these statistics may also fall within the definition of “data concerning health” – meaning that they constitute “special categories of personal data” under GDPR, and therefore qualify for extra protections. There are a wide range of entities who are potentially processing this personal data including football clubs, data processing, betting companies, fantasy sports providers and video game developers. Accordingly, the following issues would be of importance when the lawsuit is potentially brought up for trial:

 

Lack of transparency and fairness: The GDPR requires that the data be processed in a “fair and transparent” manner. If these data processing entities have not clearly informed these footballers how they are using their data, this might be evidence of a lack of transparency and fairness. The strength of such a claim would depend on the factual circumstances basis the entities who are engaging in the processing of data and their privacy agreements with such players.

 

Legal processing ground: The GDPR requires that the data be processed with a lawful processing ground. The players could argue the correct processing ground should be consent, which must be obtained before organizations can utilize their data.

 

Processing of Sensitive Data: The GDPR has provided additional protection to individuals whose sensitive data is being processed by any entity. While it may be argued that a large percentage of these statistics are available easily due to the broadcast of the games, medical data, such as energy expenditure or cardiovascular metrics may be considered private to the individual.

 

Consent: The GDPR has delineated the conditions for a consent to be valid. While it may be argued by the organizations that the player’s consent had been acquired at the stage of the contract signing, it could be an obstacle to demonstrate that the request for consent had been presented in a manner which was clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language.

 

Profiling: The GDPR protects the rights of the profiling data subjects and provides them the right to not be subject of such profiling. Betting companies and fantasy sport entities engage in creation of complete player profiles on which they base their services and products.  Moreover, the medical data of the players also form a vital part of such player profiles and would require the express consent of the players for processing. The players can allege that their data profiles have been developed without their consent and seek erasure of the same under GDPR.

 

 Legal protection of image rights in the UK

Image rights are particularly complex under English law. There is no codified or consolidated legislation that protects image rights as such. Instead, sports stars need to rely on a patchwork of laws including intellectual property rights, passing off, privacy laws, defamation and advertising regulations to prevent authorised exploitation of their image.

Passing off

This is perhaps the cause of action in the UK which is closest to an image right and indeed one of the leading cases in the area is sports related; Formula 1 driver Eddie Irvine’s claim against Talksport Radio. It is generally considered the most obvious means of enforcing the image right of a sports star because its three constituent elements appear well suited to the types of scenarios in which sports stars will be wanting to take action. It first requires a goodwill, which when you are dealing with famous sports stars can often seem like a given. Next it requires a misrepresentation, which again can appear obvious when a sports star’s name or likeness has been used to imply their connection to a certain product or service which does not reflect reality. Finally, it requires some damage to have been caused. All sports stars today are acutely aware of the value of their sponsorship and merchandising deals and would immediately point to any situation which could jeopardise their position under those deals as clearly causing them damage.

However, the situation is not as clear cut as it would first appear. The UK courts have been very reluctant to provide sports stars with broad rights merely because they have a high degree of recognition amongst the public. First, being famous does not necessarily equate to having a goodwill, which refers specifically to the power of attraction generated by some business. Sports stars will need to show that they are regularly in the business of commanding fees for product endorsements before a court will agree that a goodwill exists in their name or image. Second, the alleged infringement must involve a genuine deception. Unless consumers are actually likely to believe that the sports star is associated with or has authorised the alleged harm then a court is unlikely to accept that an actionable misrepresentation has occurred. So the evidence required to succeed in a passing off claim often makes such a claim untenable.

Trade marks

Registered trade mark protection is one of the few registered rights which sports stars can obtain to seek to protect their name, nickname or any logos associated with them. For example, Cristiano Ronaldo owns “CR7” and Roger Federer has his “RF” logo. David Beckham owns a huge range of registered trademarks including even SMOKEY BECKHAM (which was assigned to him following a dispute with a businessman who tried to trade mark the name). There was also the famous example of trade mark registrations for Jose Mourinho’s name holding up negotiations regarding him becoming Manchester United manager as the marks were still owned by his former club, Chelsea.

Registered trade mark protection has its benefits; if a third party uses the owner’s identical name on identical goods/services for which the trade mark is registered, the owner does not need to prove that consumers would actually be confused or that the third parties use would take advantage of the owner’s reputation. However, they also have their limits. First, registries are reluctant to accept trade mark applications from sports stars in respect of goods which would simply bear the person’s image rather than designate the origin of the goods. For example, Alex Ferguson failed to secure registrations for his name in relation to goods such as posters, photographs, transfers and stickers for this reason. Ultimately, trade mark registrations are a limited tool which can be used only in quite specific circumstances.

Copyright / Performer’s rights

Copyright is of narrow use in protecting image rights since no intrinsic copyright exists in an individual (e.g. their face or name). The copyright in any photograph of a sports star would belong, in the first instance, to the photographer. However, if the sports star acquires the copyright in any works (such as photographs, drawings, films) of them, then they could exploit those specific works by licensing them to third parties. Performers’ rights, whereby an individual can control the dissemination or exploitation of their performances are not relevant because a “performance” for the purposes of the legislation is a dramatic or musical performance, or a reading or recitation of a literary work, which is a live performance. It would not include, for example, a player’s performance on a football pitch (even though some performances may seem like they could be classed as ‘dramatic’!) although these rights may arise in other sports that are more akin to dance, such as ice dancing or gymnastics floor.

Privacy / Breach of Confidence

Celebrities have successfully relied on the law of privacy to protect commercial image rights in the past (the most famous example being that of Douglas v Hello! which involved unauthorised photographs taken for Hello! Magazine at the wedding of Catherine Zeta-Jones and Michael Douglas). This case led to the recognition of the right to sell private information for profit in order to protect those who have entered into exclusive arrangements regarding the publication of information that would otherwise be considered confidential. However, it was key to that case that considerable control was exercised over the images (and the attendees at the wedding) such that an obligation of confidentiality was created. It is likely that this would apply to photographs taken of sports stars only in very specific circumstances, such as where those photographs were taken at a private event.

Data Protection

The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 impose broad obligations on those who collect and process personal information, the key obligation being to process personal data “lawfully”. It also grants significant rights to individuals in respect of an organisation’s processing of their personal data, including rights in certain circumstances to access what data is being processed about them, to object to the processing and to obtain erasure of their personal data. Sports stars seeking to protect their image may therefore be able to rely on these rights to prevent the unauthorised publication of photographs or film bearing their image.

However, obtaining an individual’s consent is not the only way for commercial parties to process that individual’s personal data “lawfully”. The primary argument that a publisher of an image of a sports star would raise in response to any objection from the individual that they had not consented to the use would be that there is a “legitimate interest” for the publisher’s actions.  This is the most flexible basis on which to justify the processing of personal data about an individual, but it is not always appropriate to rely on it (and it also has not yet been tested in any detail by the courts). In order to rely on this condition for lawful processing, a commercial party must balance its (or a third party’s) interests against the player’s rights, interests and freedoms, including the likelihood of the publication to cause unjustified harm. However, one key consideration is whether the individual could reasonably expect their image to be published. In the case of a sports star, who more than most should be aware that their image taken in their professional capacity is likely to be published extensively in multiple different contexts, an objection on data protection grounds may be more difficult.

Defamation / Malicious Falsehood

If the name or image of a sports star were used without their permission in a manner which is inaccurate and potentially harmful to their reputation, they could consider a claim for defamation or malicious falsehood. However, although a sports star might consider that the use of their name or likeness to endorse a certain product harms their reputation in the opinion of the public, the bar for an actionable claim is set high. Firstly, there must be the publication of a statement or allegation that is false and defamatory, which is not straight forward in false endorsement cases. Secondly, the Defamation Act 2013 introduced a requirement that a statement must have caused, or be likely to cause, serious harm to the individual’s reputation for it to be classified as defamatory. This condition means that the circumstances in which a sports star could bring a defamation claim in relation to the use of their name or image to promote a product are likely to be rare. As for a malicious falsehood claim, although “serious harm” is not required, evidence of “malice” is. That typically requires that the defendant knew that the relevant statements were false, was reckless as to their truth or falsity when publishing them or, even though the defendant believed the statements to be true, their dominant motive in publishing the statements was to injure the claimant’s interests. Again, this seems unlikely to be satisfied in promotional material.

Advertising Regulation

The regulation of advertising in the UK is conducted with reference to the CAP and BCAP Codes^[1],  which contain specific measures dealing with the use of images of individuals that could be relied upon by players in making a complaint to the Advertising Standards Authority (“ASA”) in the event they are portrayed or referred to in advertisements without their permission. Although breaches of the codes would not provide the players with any right to compensation or other remedy from the advertiser, a successful complaint to the ASA would typically result in the ASA demanding that the advertiser withdraw the offending ad and publishing their adjudication against the advertiser. An example of this in the sports world is the ASA complaint lodged by David Bedford (a runner in the 1970s) against a TV advert for 118 118 directory enquiries services, in which he claimed his image had been exploited by the actors caricaturing him. No action was taken against the ads, despite them being held to be a breach of advertising rules, in part because it was not clear that Mr Bedford had actually suffered any financial loss as a result.