Timothy Liam EPSTEIN'S Article Entitled, "Biometrics increasingly play bigger role in pro, college sports," was published in the Chicago Daily Law Bulletin.

Biometrics is the measurement and analysis of humans’ physical and physiological characteristics. The use of biometrics in athletic competitions and sports is quite common. For example, many runners wear smartwatches to track their heart rate on a run.

However, the use of biometrics does not come without controversy. Specifically, people have become increasingly concerned with government and businesses acquiring biometric data without their consent.

Currently, only a handful of states have passed legislation that regulates biometric data collection. Illinois, with the Biometric Information Privacy Act (BIPA), was the first to do so.

Under the BIPA, private entities cannot use biometric identifiers or obtain biometric information unless it has: (i) obtained written consent from the subject individual(s), (ii) notified the subjects that their biometrics are being collected and (iii) state the duration the biometric data will be collected, stored and the specific purpose of its use. 740 ILCS 14/15(b).

Although states are beginning to take action, there is currently no federal law regulating biometrics. Because of this, players at both the professional and collegiate level are concerned about whether their biometric information is entitled to privacy and whether their data can be used against them.

Professional sports leagues have welcomed biometric information collection of its athletes. In 2017, WHOOP, a human performance company, became the official wearable technology company of the National Football League Players Association.

NFL players received a WHOOP Strap 2.0, which measures an athlete’s biometric data 100 times per second. WHOOP’s founder, Will Ahmend, stated that its partnership will help athletes “become healthier and wealthier by collecting, controlling and ultimately having the ability to sell their own health and performance data.”

WHOOP identified potential privacy concerns and took steps to subdue uncertainties by providing 27 different levels of privacy settings. This means the player essentially controls who has access to his information.

Nonetheless, the opportunity for a young athlete to grant his team access comes with serious concern. Although players may be motivated to share their biometric data hoping the team will use it to optimize his performance, players can severely harm their careers without even knowing it.

The ultimate concern with professional athletes sharing biometric information with their teams is that the team can ultimately use it against them in contract negotiations.

If a team identifies a player’s regression in performance or recovery, substantial money, and potentially the contract itself, may be in jeopardy. This concern extends to collegiate athletes sharing biometric information with their schools for concern over scholarship reduction or loss, although recent NCAA legislation allowing conferences to have their member institutions (i.e. schools) extend athletic scholarship benefits past single season renewable terms has mitigated this concern for NCAA athletes.

If federal regulation similar to the BIPA is enacted, it is possible this uncertainty would be resolved. The BIPA requires that the specific purpose for the collection of biometric data be disclosed. Thus, players would be fully aware of what will occur if they share their data and can ultimately make an educated and informed decision on whether or not to share such information.

Unlike the NFL, the NBA has taken matters into its own hands by addressing the use of biometric data collected by wearable devices through its collective bargaining agreement. Article XXII Section 13(g) of the NBA bargaining agreement requires NBA teams to disclose the following before a player voluntary agrees to have his data collected: (i) what the device will measure; (ii) what each measurement means and (iii) the benefits to the player in obtaining such data.

The NBA also addressed the issue of contract negotiations and biometric data. Article XXII Section 13(h) explicitly prohibits the data from being, “considered, used, discussed or referenced” for negotiations of a future contract.

The NBA’s approach to biometric data privacy can arguably be considered the model approach.

The NBA informs the individual of the collection, explains what the data points mean and demonstrates how that data collection may benefit both parties.

With the NFL’s bargaining agreement expiring after next season, it can be expected that biometric data will be negotiated.

Unlike the NFL and NBA, collegiate athletes are in a susceptible position. Because college athletes cannot unionize and there is no federal regulation on biometric data privacy, college athletes are protected only by state law, school regulations and NCAA bylaws. At this time, the NCAA does not have any overarching regulation on biometric privacy.

There are two key issues that come with the absence of biometric privacy regulation for college athletes. First, as previously discussed, such information can cause athletes to lose a scholarship opportunity. And second, and arguably more importantly, a loss in playing time.

College athletes are more likely to volunteer their data because these athletes want to play. These athletes play collegiate sports because they thoroughly enjoy the game and/or want to pursue the sport professionally in the future. Playing time is of the utmost importance in these circumstances.

With biometric data collection and usage continuing to grow, college athletes require some amount of regulation to ensure their data is protected. Biometrics can provide collegiate athletes, teams and schools with significant mutual benefits. Absent these regulations, schools can go as far as enter into lucrative contracts with third parties that includes access to the college athlete’s biometric data without players’ consent.

With recent developments regarding the NCAA and the potential opportunity for student-athletes to monetize their name, image and likeness, biometric data privacy has become far more important.

If such opportunity becomes real, student-athletes, just as professional athletes, would theoretically be able to commercialize their biometric data. Thus, without proper regulations, biometric data in college athletics may lead to unethical dealings and handling of players’ biometric data.

With self-regulation occurring at the professional level, the need for federal biometric privacy regulations is not as urgent as it is at the college level.

Regardless of the constraints such regulations may impose, any affirmative action by the federal government will help clear up the inherent uncertainties and potential unethical handling of biometrics with athletes.

As more states consider enacting and move forward with enactment of biometric regulations, the likelihood of federal action will continue to increase.

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