Betting on Biometrics: The Legal Wild West of Athlete Data in Sports Gambling
By Christian Chase; Photo Credit: N3XT SPORTS
Throughout the history of sports betting, baseline performance statistics—such as points, yards, and shooting percentage—have been the central datapoint in bettors’ decisions to bet on certain outcomes.[1] However, the rise of biometric data could revolutionize sports betting as we know it. Imagine having the ability to look at the heart rate of a Quarterback who is about to attempt a two-minute drill with the game on the line: It spikes? Bet his team loses. It doesn’t? Bet the house on him. Wearable technology tracking this biometric data has made this a scientific and mathematical possibility.[2] But this possibility also raises significant legal, ethical, and regulatory challenges that are yet to be answered.[3]
Biometric data includes but is not exclusive of heart rate, hydration, fatigue, oxygen levels, and muscle exertion.[4] These have been commonly tracked through devices and technologies such as Oura, Whoop, and Catapult—all products available to and used by the public alongside professional athletes.[5] Through time, professional sports teams have utilized biometric data more and more in their player development processes, for performance optimization, injury prevention, and training regimens.[6] Sportsbooks have seen strong potential for these numbers to influence the odds and provide bettors more comprehensive data, but the untouched legal backdrop has prevented this from becoming anywhere near mainstream.[7] However, the possible benefits are clear: live betting would be utilized like never before, bettors could analyze players pre-game to make bets on data points past normalized past statistics, and the betting would be more interactive on average.[8] However, privacy, intellectual property, regulatory, and antitrust concerns loom before this becomes reality.
The first hurdle sportsbooks must overcome involves a mix of privacy and intellectual property concerns.[9] Unlike normal statistics, which are free-use in large part due to their external nature,[10] biometric data is internal and personal to the athlete.[11] Athletes will likely argue their biometric data is a part of their identity and should not be used without their consent; moreover, they could argue that their personal biometric data is protected under the intellectual property doctrine of “right of publicity.”[12] These arguments at the minimum create the question as to whether even the individual leagues have access to this data and can therefore sell it to sportsbooks.[13] Considering sportsbooks thrive on uniform access to player and team statistics, biometric statistics being contingent on player consent creates an issue that could hinder adoption of biometric statistics gambling in the near future.[14] The Illinois BIPA, enacted in 2008, served as the first strict regulation requiring direct consent from the players to use biometric data and this had been a clear trend.[15] Federal and state legislation would need to change the narrative for this to become reality. In contrast, leagues subject to a Collective Bargaining Agreement like the MLB have allowed the use of biometric data, given it is not commercialized; as these leagues develop stronger relationships with sportsbooks, they may push in negotiations to commercialize this data if there is enough projected financial incentive.[16] But these leagues should be wary of the antitrust implications of solely giving these commercial rights to sportsbooks.[17]
Due to the legal hurdles present, biometric betting will need to to surpass these legal hurdles before it becomes mainstream; however, the commercialization of these statistics may be a question of when rather than if.[18]
Christian Chase is a 2L at Vanderbilt Law School. After graduation he plans to practice litigation in Florida.
[1] Christian Frodl, Commercialisation of Sports Data: Rights of Event Owners over Information and Statistics Generated About Their Sports Events, 26 Marq. Sports L. Rev. 55, 64 (2015).
[2] See id. at 59.
[3] See id. at 87.
[4] Kristy Gale, The Sports Industry’s New Power Play: Athlete Biometric Data Domination. Who Owns It and What May Be Done with It?, 6 Ariz. St. Sports & Ent. L.J. 7, 11 (2016).
[5] See, e.g., Adam Loiacono, 6 Wearable Tech to Improve Performance, Adam Loiacono Blog (Jan. 24, 2023), https://adamloiacono.com/6-wearable-tech-to-improve-performance/.
[6] Gale, supra note 4, at 9.
[7] Marc Edelman & John T. Holden, Monopolizing Sports Data, 63 Wm. & Mary L. Rev., 69, 86-87 (2021).
[8] See id. at 87.
[9] See id. at 113.
[10] Gale, supra note 4, at 27; see C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 823 (8th Cir. 2007).
[11] Gale, supra note 4, at 18.
[12] See id. at 36.
[13] Edelman & Holden, supra note 7, at 113; see, e.g., Gregory J. Pelnar, The Antitrust Perils of Sports Data for U.S. Sports Leagues, Antitrust Chron., Apr. 2020, at 28, 31.
[14] Edelman & Holden, supra note 7, at 113.
[15] See Illinois Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq. (2008).
[16] See Edelman & Holden, supra note 7, at 113.
[17] See, e.g., Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98 (1984).
[18] See Edelman & Holden, supra note 7, at 86.