(Chinese Version)

At present, the competition within the field of wearable technologies is heating up to an unprecedented level. And even the sports industry is also participating into this grand game with many sport events are adopting wearable gadgets. For instance, sport events like NFL, NBA, NHL, MLB, football, tennis, and even college football leagues are using wearables. The rapid rise of wearable technologies brings forth many legal problems subsequently. In this case, we must know how kind of impact that wearable technologies is bring to professional sports and the legal issues are yet to come.

Gym lovers are in fact geared with wearable gadgets to collect data while doing sports. For instance, joggers put on wearable gadgets to monitor their running distance, duration, and heart rate to better adjust their jogging pace. It’s reported that wearable companies are teaming up with professional tennis and golf club to develop feasible cutting-edge technologies in service of the sports and collecting data. At present, the competition in the field of wearable technologies is extremely fierce as most sport fields are trying out wearable gadgets.

In America, many professional sport events are starting to adopt wearable technologies.

For example, NFL started to cooperate with Zebra Technologies in the last season and launched Next Gen Stats event. In this event, the organizer will have sensors installed in the venue during the Thursday Night Football. By season 2015, all venues will be equipped with such sensors. Radio-frequency identification (RFID) transmitters will be placed inside of players’ shoulder pads to provide detailed data on players like never before. The activity tracking system, developed by Zebra Technologies, is better known as Next Gen Stats. It will allow broadcasters and fantasy football fans alike to track the exact position, acceleration, speed and distance covered by each player on the field on each and every play.

Zebra Technologies uses the activity tracking system to collect and process data and sends statistics reports to NFL’s broadcasting partners. The football team’s partners, NFL’s application, and Xbox One can also receive these data. It’s fair to say that this technology will have a prominent impact on changing the football industry as a whole. Whether the audience watch the game at home or in the stadium, they can all have access to players and the team’s performance data.

These data collected from actual football games can be used to improve the gameplay experience in simulation games. Whether it’s seasonal football games or the daily ones that are becoming more popular, they will all benefit from the data. It’s reported that Zebra Technologies’ original intention of developing this technology is enhance football fans’ viewing experience in the game. But as it further develops and matures, it’s also used in coaching, training, and medical service in the field.

NHL is currently working with Australia-based Catapult to develop a tracking system. Catapult gained itself a reputation by successfully providing an efficient tracking technology for Australian football teams. According to the cooperation agreement between two parties, the final product should be a wearable gadget that can analyze the load capacity on ice, the velocity of the players, the collision force, and even should be able to detect which leg the player uses more force on.

Wearable technologies: big data, big money, or big troubles?

There are twenty NBA teams using Catapult’s OptimEye system or similar technologies right now in order to track and analyze players’ performance. OptimEye technology is basically putting a sensory system on players’ clothes. A movement tracker will be placed between players’ shoulders and with the GPS tracker and in-door antenna, players’ velocity and movement can be analyzed in a 3-dimension way.

The development and innovation of wearable technologies will completely transform the layout of the global sports industry. Many thought leaders estimate that wearable technologies are able to gather information, enhance fan experience and engagement, reduce injuries occurred in the field and optimize the training model for players. However, the application of wearable technologies will not only bring forth benefits, but also issues.

Without a doubt, the development of wearable technologies is based on large amount of investment. According to report from IHS, the wearable industry has reached a scale of 100 million dollars and it’s still developing fast. IHS also estimates that the revenue the sport, gym, and activity tracking industries are generating will jump from 1.9 billion dollars in 2013 to 2.8 billion in 2019.

However, big data, which wearable technologies are based on, also brings about legal issues. The adoption of wearable technologies in the sports industry is still in the gray area in law. In this case, while more and more sport teams are using wearable technologies, lots of legal problems also come along.

Data privacy, information security, and the use of information

The most difficult issue about wearable technologies is probably the use of information collected from the users. The technologies we are talking about here will collect personal information, or, let’s say, data, from the players, including the whole teams’ data and the league’s as well. When professional players are using wearables and data are collected, who will be the owner of these data? At present, the answer is the people who collect the data: information and data on the league, players. People who collect the data at least own the original data, and the data after analysis. However, it doesn’t necessarily mean they have the right to use the data.

Data collected during professional players’ training session belong to their employer. It’s a matter of information privacy, security and the use of information, and therefore it’s hard to define what kind of information should be classified as private information of the players. It remains unknown whether players should be able to make their information private, which includes information on the team and league as a whole. It’s also uncertain whether the data analysis can be shared to broadcasting partners, sport commenters, and analysts. Besides that, video game developers would also like to get their hands on the data. But are they allowed? Can people sell all those data to virtual sport participants? Anyhow, in NFL’s case, the answers would be yes.

In the fields of professional sports, there’s no regulation or any written rule about players’ information security in the virtual world. As the data collected by wearable gadgets gets more detailed and specific, more people start to fear that these data might be stolen by hackers or abused by employers, or insurance companies, eventually leading to endless lawsuits.

Labor relationship problems

The issue of whether the league and the team have the right to use players’ data should be one of the keys things to discuss about when in negotiation about players’ employment agreement. It should define which third party can use the data, what kind of data they can use, and if the players themselves and their agents have the right to use the data generated by wearable technologies and statistics after analysis.

Apparently, when in negotiation about the salary and contract, players’ performance data and other statistics play a key role. However, so far the main method to predict players’ future performance is assessing past performance, personal information such as age, medical record, and injuries record.

As such data are becoming more accessible, analysts might be able to receive information that haven’t been able to get, such as biological status data, data on players’ reflex, long term health condition, and other data that could be used to predict players’ health in the future. With these data on their disposal, even in their peak time, players would be able to predict the time they might have bad performance and provide statistic when negotiating with employers about their salary and contract. The National Basketball Players Association has already noticed such issues and reveals that some teams are already using data collected through wearable technologies as references in negotiation about players’ contract.

The patent war and secret of business

With more and more investment pour in, companies focus on wearable technologies are starting to fight to protect their intellectual properties in service of insuring more investment will come. Given the circumstances, it’s not surprising to see lawsuit about patents are happening everywhere. In California, FitBit and Jawbone, two wearable technologies companies, are at war in court. Jawbone accused FitBit of patent infringement and business information theft. Jawbone claimed that Fitbit’s HR staff had contacted over 30% of Jawbone’s staff and had already reached some employment agreements with them in order to steal business information from the company. According to Jawbone, these staff had brought essential business information to Fitbit.

Another case took place in June 2015. Jawbone believed that Fixbit’s the system of a health wristband from the company was violating Jawbone’s intellectual property. Fixbit counterattacked that this act was merely a strategic lawsuit to hold the company back. After that, Fixbit went public on the stock market for the very first time. Jawbone also then proposed a arbitration to the ITC in hopes of having the authority investigated Fitbit’s six infringement acts. ITC claims that they will start looking into the matter very soon. However, there are still a lot of uncertainties in such cases in terms of the sphere of application and other potential problems.

Agilent Technologies once suited Adidas and several defendants claiming that there had been acts of patent infringement, for instance, Adidas’s miCoach sport clothes. The defendants argued that such patent had already been abandoned 8 years ago. And therefore, Adidas applied for summary procedure believing that the plaintiff was stalling the trial, thus should be treated with collateral estoppel and doctrine of laches

Such lawsuits will only pile up. If professional sport teams’ cooperating companies are also involved, then it’s incredibly hard to say what kind of impact the lawsuits will have on the development of wearable technologies and whether it will affect the adoption of wearable gadgets among sport teams and leagues.

Although there are still black space waiting to be filled in law for wearable technologies, wearable gadgets have already become indispensable in professional sport career of many.

The prospect of wearable technologies is attributed to its capacity to enhance fan experience and engagement, improve sport teams in many ways, boost players’ performance, and even better protect players from potential injuries and illness. However, whether it’s the professional sport market or consumer market, the lack of regulation, relevant law, and guidance still exists. In the near future the wide adoption of wearable technologies will definitely generate lots of conflicts, lawsuits and other issues. It’s for sure that wearable technologies will have a prominent impact on the labor law, privacy protection law and intellectual property law.

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[The article is published and edited with authorization from the author @YutangSports, please note source and hyperlink when reproduce.]

Translated by Garrett Lee (Senior Translator at ECHO), working for TMTpost.