Technology launched a sports analytics revolution. But who owns the data?

Matt Moret: Welcome to Field Study, a podcast about sports and science from the Pittsburgh Post-Gazette. I’m your host, and producer, Matt Moret.

Over the past decade, wearable technology has helped sports teams perfect the art of player development.

For the most part, the influx of technology seems to be working, especially when it comes to baseball. Teams get better performance, players get injured less. It’s a win-win, right?

Well, not necessarily. Behind all of that performance tracking is a big fight over privacy rights.

What information about yourself would you be willing to trade for a shot at a world championship?

For today’s episode, Post-Gazette technology reporter Lauren Rosenblatt took a look at just how complicated that decision is becoming for baseball players across the country.

Here’s what she learned.

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Lauren Rosenblatt: We’ve all met someone worried that Alexa is listening in on our conversations. Or that Facebook is spying on us. But what about the tech we wear around our wrists, the fitness trackers that we use to so meticulously track our exercise, calories and sleep patterns?

Often referred to as biometric data, some people say this health record is as personal as your fingerprint.

Now, what if your job, your contract, your entire professional career was tied to this very personal data? There’s a group of people already starting to face that issue on a daily basis. Elite athletes.

Kristy Gale: Ultimately some have said within professional sports that their goal, kind of the holy grail, would be to have all of this information on the athletes so that they can then determine which athletes are genetically predisposed to be elite athletes and do that from a much younger age.

Rosenblatt: That’s Kristy Gale, an expert in sports law who has been studying the implications of wearable devices since they started to come on the market in the early 2010s.

Gale: I’ve been living and breathing this for four years, but really, we’re really just at the beginning of all of this and nobody has incorporated any of these policies or procedures or tech solutions. They’re still just trying to get ahold of, “Oh, we can collect data, now what do we do with it?”

Rosenblatt: The sheer amount of data has created something like a medical database that keeps a record of each player. But, there isn’t always a specific plan for how to use that information when it’s collected, and players could be getting left in the dark about what ultimately happens to it.

Gale: Everybody needs to understand their role in the sports data ecosystem, and that’s what I do. I help them understand their role: what they own, what they don’t, what they can license and how to do it and create these types of transactions where everybody wins.

Rosenblatt: In an industry filled with names like Josh Bell, Sidney Crosby and Ben Rothlisberger, athletes use FitBits and GPS trackers to monitor their exercise just like the rest of us. The MLB allows sensors that can follow a pitcher’s arm movement. The NFL allows trackers in players’ shoulders pads. But the amount of personal health information used in training programs can go far beyond the field.

Gale: I think with athletes, I think it's hard because with this type of information you can see the substances that an athlete ingests, you can see their sexual activity, you can see so many things and there’s not a lot of rules around what should be public and what should not. So for the athlete, I think that’s what’s going to be messy. There may be more information about them that’s disclosed than they want out there and it could ruin their brand.

I think one thing that could temper that is the leagues and teams are equally vested in protecting information about athletes so that they are not accused of match-fixing or integrity issues when it comes to sports gambling. So that may cause them to circle the wagons a little more and not disclose as much personal health information of the athletes.

Rosenblatt: Elite athletes have some legal control over that data but not very much. Because they are public figures, they don’t have the same privacy rights that you or I would over our personal health information. That’s created a lot of unknowns, Gale said.

They do have legal rights if their biometric data is being collected without their consent, being used to make false claims or being used to make money, like in a sports betting app. But the legal path forward if any of those circumstances were to occur is also unclear.

Gale: There’s kind of a patchwork of privacy laws throughout the United States. And so the teams partner with the data collection companies and the data collection companies understand that the athletes have contracts with the leagues and teams, whether that’s a collective bargaining agreement or individual player contracts — which those agreements do touch on data, the use of data, collection and use of data by leagues and teams.

They’re not robust though because they did not anticipate the current state of where we could collect really personal health information through wearable tech and then monetize it. That’s very different from what’s been done before.

Rosenblatt: The way Gale sees it, there’s risk for every party involved: The companies collecting the data could be targets for litigation if the information is not accurate or secure. The teams could be accused of using the data without the proper consent. And the players risk their revenue and reputation.

But the devices are catching on anyways. Individual players and teams are incorporating things like wrist wearables that monitor rest and recovery, a sleeve that tracks arms motion and a harness that measures workload.

The goal of the wearables is to help athletes train better, maximizing what they gain from each practice and minimizing the risk of injury. Tracking their sleep, for example, can help determine which days they are well rested enough for a tough workout and which days they should take it easy.

Reporter Joe Lemire has been following the evolution of wearable technology for sports news website SportTechie. He told me this story about a device from wearable tech company Catapult:

Lemire: When I wrote about this, it was part of a much larger story about Catapult, I even joked with their CEO. I said, “After I write this story, you’re probably going to want to put it in your promotional brochures.”

Nate Burleson, who’s now a very successful broadcaster, had a number of good seasons in the NFL, and then I think it was 2014, he wanted to play one final year. He signed with the Cleveland Browns. He had been hurt for a lot of training camp, and so it was near the end and he really wanted to make the team. He was wearing one of those Catapult devices, and at some point late in practice he got a tap on the shoulder. His position coach said, “Hey, you’re done.” And he’s like, “What do you mean I’m having a great practice, I really need to make the team.”

[The position coach] was like, “We’ve been monitoring your Catapult workload and you’ve hit the maximum. We’re worried about you getting injured.”

And [Burleson] was insisting, he’s like, “No I really need to prove myself, I’m gonna tear up these [defensive backs,] let me get back out there.”

Literally on the very next route that he ran, he tore his hamstring and eventually got cut, and didn’t make the team. It was so late in his career, he was coming off an injury, he didn’t latch on anywhere else and then he eventually retired. So the last thing he did in organized football was run this route against the advice of the wearable technology and he tore his hamstring and ended his career.

Obviously most of the time, it's not gonna be that clear cut. It’s just sort of giving probabilities. But that was just the one remarkable case.

Rosenblatt: Lemire noticed a shift in the industry around 2015 as players, teams and leagues became more focused on game statistics, analysis and injury prevention.

The technology lives up to its promise, Lemire said. But that shouldn't be the end of the conversation.

Lemire: You know, this is their livelihood, and so there’s certainly a lot at stake, often millions of dollars, long careers, fame, success. And so you can understand reluctance to try anything new that might have a harmful risk. But at the end of the day, it probably ends up being more of a zero sum game.

Let’s take baseball pitchers, probably the most volatile and injurious position you can find — and if you think about that Motus sleeve tracking how many, how you’re throwing the ball — there certainly will be pitchers who are found to have mechanics that aren’t going to last and teams are going to be able to identify earlier in their careers that, “Hey, this guy, he might not be worth a five or six year contract. We think he's gonna have some real trouble.”

But on the other hand, there are gonna be players who are discovered to be far more reliable and far stronger than they anticipated. They're gonna benefit by having that extra investment in their career.

And so I think it's still gonna be the same amount of revenue in each of these sports, the same amount of payroll. It just might get distributed a bit differently based on this data.

Rosenblatt: Lemire’s view is optimistic. He thinks of the wearables as something that could be used to make the game more fair and accessible to even more people. Not everyone shares that mindset.

Dr. Leslie Saxon is a researcher who has been studying wearable devices at the University of Southern California.

Saxon: The reason that I’m so concerned about it is because it’s all so new that we really don’t know what it means yet so you could prejudice. You could cause a lot of prejudice against a player.

You could see a slowing or an aging and think that that means they’re going to need Tommy John surgery or that they’re gonna to degrade. But people have an amazing way of adapting to things that’s very individual. And are you going to trust that decision to some analytics guy with no training, medical, other background because he’s developed a model? I mean, I don’t know.

I don’t think that we know what a lot of this data means yet, so I’m kind of protective of it philosophically because I think until you know, you probably shouldn’t make decisions because you might hurt somebody — or hurt their career.

What we try to do is say ‘OK this is data we’ve never seen before.’ Now, I’m a cardiologist, I’ve been doing this for 25 years, I’m a heart rhythm specialist so I know a lot about that. But the density and the amount of data that you can collect with these wireless tools continuously, it takes you awhile to figure out what it means. You have to benchmark it to something like injury or performance or something else.

Rosenblatt: Dr. Saxon has been working with the Major League Baseball Players Association, which represents all major league baseball players. The MLBPA leads the league’s collective bargaining negotiations, and player data collection has become a large point of debate. The union aims to figure out how the MLB can simultaneously protect player’s rights and use the technology to help players stay injury free.

What can it tell the teams and leagues about how a player is feeling during the course of the 162 game season? And then, how can they deliver a very personalized action plan to optimize each player?

As more players use wearable devices, the industry is confronted with a whole host of questions that no one seems quite ready to answer yet.

There’s the practical side of things: like, how do you verify that the wearable is giving you accurate information? Or, how do you know that it works equally well when a player is at rest and during their peak training?

And there’s the more philosophical side of things: like, how do you ensure the digital paper trail is kept safe from hackers? Or, what happens when a player switches teams? Does the data go with them? How many people have access to the data?

Or, one of the biggest questions: Who really owns it?

That answer might depend on who you ask.

Dr. Saxon thinks of the data as the athlete’s personal health record, and she believes teams have a responsibility to make sure those records are kept secure.

Saxon: So I think if I were a player, I could look at that two ways. I could say, “Well, potentially some players are using that same technology to help them understand how to be better, prevent injury or some other thing.”

But I could also say, “Well, I’d like to know — that’s my medical data, that’s my biomechanical data, that’s the core of me as a pitcher, right, my mechanics — and I’d like to control that.”

In the same way, you might want to control your medical records and not have your employer look at it. Or somebody else who is thinking about hiring you. You might not want them to see your medical record for very legitimate reasons.

Rosenblatt: According to Gale, teams also have a stake in protecting the data.

Gale: I’ve also seen a shift from 2015 where initially the attorneys for the leagues and teams very much took the perspective that they owned the sport. They owned the league. They owned the teams. They owned the athletes via the collective bargaining agreement and individual player contracts. The leagues owned the tech, you know they’re investing in all the tech behind all the data collection, so of course the data is theirs.

And I watched that shift over the following three years to where the leagues softened their position and realized, no the athletes do have some ownership rights, too.

Rosenblatt: To counteract some of the concerns, the MLBPA addressed wearable technology in its most recent collective bargaining agreement. The agreement went into effect December 1, 2016 and will last until 2021.

The collective bargaining agreement states:
Any use of wearable technology will be voluntary and there will be no consequences if a player declines to use it
The club must provide the player with a list of people who will have access to the information
The data will be considered highly confidential and will be deleted if a player requests to do so
The information can not be used for any commercial purposes or exploited and
The wearable technology cannot be used in games or pre-game activities

The MLBPA also formed a Joint Committee on Wearable Technology to review new devices, new uses for wearables and topics like data management, privacy and confidentiality.

Even though the MLBPA has issued guidelines for how to use the wearables, one of the leading companies that has sprung out of the analytics frenzy, DriveLine Baseball, takes a different approach.

Rosenblatt: Joe Marsh is the director of research and development at DriveLine and a former college baseball player at the University of Washington. DriveLine’s approach is that whoever pays for the data has ownership. So, if a team trains at DriveLine together, the team owns the data. If an individual player comes to train on their own, it belongs to them.

Based in Seattle, Washington, DriveLine works with baseball athletes from youth leagues to the professional game. The company’s staff go through an extensive data collection process and then build a training plan for the athlete based on the numbers. Marsh walked me through an example:

Marsh: We’ll see a pitcher who doesn’t have a good arm action, like their arm action profiles as lackluster numbers compared to sort of our elite ranges that we see, and throwers who throw hard and have a kind of clean health record. So we’ll put them, we’ll have them focus, program their drills to be more focused on corrective arm action. And then coming, going into the retest we’ll see that the arm action improves and then we’ll kind of evaluate the next thing to fix.

It’s all kind of based on what’s the lowest hanging fruit. Maybe your arm action isn’t as good as it should be. You have a bunch of, a couple other flaws that could be cleaned up. But you’re also just undersized, weak and like alright let’s just get you stronger first before we kind of worry about any of that other stuff.

We’re all about like transparency and just being honest. We don’t want to sugar coat anything. If you’re bad at something, we’re sure to let you know.

Rosenblatt: Former Pirates trainer Frank Velasquez said he thinks the organization owns the data but that it is up to the player to decide if they want to participate, and consequently, take some of the risks involved.

Velasquez: “It’s nothing that the organization can make mandatory for the player because I think the player doesn’t want that information used against them when it comes to arbitration cases, when it comes to contract agreements. Once you’re paying an athlete, the whole area of sports science isn’t always a slam dunk given.

Even though we know as practitioners some of that information may help the athlete, on the business side of things some of it may hurt the athlete.

Rosenblatt: Velasquez is now the director of sports performance for the Allegheny Health Network based in Pittsburgh. He worked for 16 years in professional baseball and spent nine years working for the Pirates.

Velasquez: Biomechanical analysis systems are fun to work with, and all of this stuff is good, fine and dandy. But unless we’re using that data for something that’s gonna to benefit the athlete, you can start to question is it worth doing. They’re kind of like bells and whistles. We’ve done it for a long time without technology, so someone like myself, who was around during those times, what do we take in with technology and how do we use it? Not just to have it.

Again, I come from the older school where I use my eyes and I use my ears and I’m conversing with the athletes and I can kind of tell. I have a pretty good idea of how they are, the finger on the pulse of what’s going on with them, so to speak. But now we have this objective data to back that up, so when you do go to your manager and say hey you know we think that so and so needs a day off if we can afford to give him in the next week or so and here’s why.

There’s more emphasis on recovery now then there’s ever been because of the length of the seasons and the money that’s at stake, and the use of technology. I mean, it’s just easier to do. I think athletes now are starting to work smarter instead of working harder, which is good. They still work hard, but they’re starting to respect and incorporate more of the science that goes into how well they take care of themselves.

Rosenblatt: Even as the debate on biometric data stalls on these questions, new technology is creating even more.

Markerless motion capture, for example, collects data using cameras and sensors on the field. Since the device isn’t placed on the player, it doesn’t necessarily have the same consent requirements that wearable technology would.

Markerless motion capture hasn’t been approved for use in games yet, but Saxon said it could enable teams to collect information on visiting players, whether for use in competition or to inform trade negotiations.

So even with all of the advances performance tech has already made, this is still just the beginning. Gale predicts the next step is eventual class action lawsuits that will set clear distinctions and pave a path forward.

Gale: The teams and leagues need to be very mindful about how they approach this topic. They need to create ethics around the use of the data, kind of look at public policy or shape public policy. I know other industries are watching the sports industry for how they handle this so that they know how to treat this type of information.

Frankly one of the industries that’s watching how the sports industry manages this is health — pharmaceuticals, medical devices and consumer fit tech, which is one reason I’m really interested in this area.

It will have a trickle-down effect on all of us. If anybody has an Apple Watch or any type of fitness tracker, this impacts you.

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Moret: The MLB Players’ Association declined to comment for this story, stating that wearable tech will be a topic of upcoming negotiations. The Pittsburgh Pirates also declined to comment.