By: Mariah Bayless Davis

The advancement of technology has given individuals the false sense of familiarity with people they have never met. Social media users are often motivated to overshare experiences and information about themselves to feel a sense of community on platforms such as Twitter and Facebook. While sharing what you ate is normal in today’s society, sharing your personal health information may not be something one is forthcoming about, rightfully so. The Health Insurance Portability and Accountability Act allows patients to guard their medical records and control the use of such personal health information.[1] However, what is the protection for data that is not deemed, “personal health information?” Information such as biometric data collected from wearable technology is not specifically regulated by federal laws.[2] That might not be an issue for a regular person that uses a Fitbit to track their daily steps, but what happens when an athlete uses wearable technology for rehab and training purposes? Barbara Osborne, a professor of sports law at University of North Carolina, commented on the murky waters that puddle at the intersection of public athletes and privacy by saying, “once [athletes] private biometric data is considered a term of employment, the contents of that data are no longer considered protected health information under law.”[3] How do athletes grapple with being public figures while simultaneously wanting to improve their skills in private with the help of wearable technology? With the introduction of the Motus mThrow sleeve in 2014[4], Major League Baseball and Major League Baseball Players Union attempted to navigate the unpaved roads of wearable technology in professional sports.

In professional sports, injuries are inevitable. Injuries can not only lead to poor performance by a team, but also wasted money in a league like Major League Baseball where contract money is guaranteed. In 2015 alone, the league reported $420 million in pitchers’ salaries “wasted” on the disabled list and pointed its finger at elbow injuries as the main culprit.[5] The sport of baseball is so plagued by elbow injures that the surgery to fix them is known as a “Tommy John procedure,” named after the first player to get the surgery.[6] As the founder of the American Sports Medicine Institute, Dr. James Andrews has had plenty of experience researching elbow injuries and performing elbow surgeries. When asked why he was so passionate about finding a preventative measure to lessen elbow injuries, he said, “I’d like to put myself out of business [one day].”[7] By researching the cause of elbow injuries, one could potentially develop a piece of technology to lessen the popularity of Tommy John surgeries, which “increased by 700 percent [from 2004 to 2010].”[8] That was Joe Nolan’s goal when he and his company, Motus, developed the mThrow Pitcher Sleeve.[9] The mThrow sleeve looks like a common compression sleeve that you could buy at Dick’s Sporting Goods. However, the Motus technology built into the sleeve is what could completely eliminate elbow injuries caused by the force of pitching. To be able to collect data relating to arm speed and release point, the sleeve stretches from the mid forearm to just under the shoulder and nestled inside a slot on the sleeve is a small sensor.[10] As the pitcher throws, the sleeve not only collects data and measurements pertaining to shoulder rotation, but also pertaining to the angles of the elbow and shoulder.[11] Knowledge about the angles of the elbow and shoulder shed light on the stress being put on the ulnar collateral ligament, which if weakened without correction can lead to an elbow injury.[12] Many companies that analyze the mThrow data for players and teams say that the technology is used mainly to “train players to withstand fatigue, rehab them faster and better, and hopefully prevent them from having surgery at the beginning.”[13]

Although the general consensus around the league is that athletes’ biometric data collected from the mThrow sleeve would be used for good purposes, some athletes are skeptical. Andrew Miller, an All-Star pitcher who most recently played for the Cleveland Indians shared his thoughts by saying, “you don’t want a team to treat you differently in some sort of contractual thing because they don’t think you’re not getting enough sleep or sleep poorly…it’s just a matter of how you work [data] in and who do you give access to and in what form?”[14] Alan Milstein, an attorney who lectures on sports and bioethics shares the same sentiment as Miller. He states that the use of the data might actually deter athletes from voluntarily using the technology, “if the purpose is to find out, ‘Geez, is this guy really worth it? Should we sign him to another year? Nah, he looks like he’s really failing. Let’s get rid of him,’ then it’s no longer in the athletes’ best interest to have the team be able to monitor every aspect of their health.”[15] Both Miller and Milstein question the regulations and further perimeters regarding not necessarily the taking of the data, but the use of it. A new Collective Bargaining Agreement was introduced in 2017 and while the agreement provided clarity regarding the technology and data that comes from it, the regulations might increase skepticism.

Attachment 56 of the 2017-2021 Collective Bargaining Agreement summarizes the manner in which new biometric technologies are evaluated and approved, while also making an effort to establish regulations regarding a player’s privacy when it comes to their data, who has access to it, and for what purpose.[16] In 2016, before Major League Baseball updated the Collective Bargaining Agreement, the only people who had access to the biometric data from the sleeve were the pitcher himself, the agency that represents him, and Motus.[17] As set out in the new agreement, “the Club representatives permitted access to a player’s wearable data are: General Manager, Assistant General Manager, Field Manager, Team Physician, Certified Athletic Trainer, Strength and Conditioning Coach, Rehabilitation Coordinator, and an individual hired by a Club to manage the use and administration of wearable technology.”[18] The agreement later regulates the use of the data and says that it cannot be exploited or used for any commercial purposes.[19] Although not explicit, the agreement also prohibits the use of a player’s biometric data as a tool during salary arbitration. Explicitly using the data in the argument during salary arbitration would lead to disclosing the data to outside parties not permitted to access data.[20] Initially the league and player’s union sought out to make the discussion about wearable technology clearer but the regulations point to a loophole that could be used by Club representatives.

During a salary arbitration, Club representatives and the athlete present their cases in front of a panel of arbitrators. While the athlete has his agent there to represent his interests, the Club usually sends two individuals on their behalf: The General Manager and Assistant General Manager.[21] Those two individuals are also amongst the permitted Club representatives who have access to wearable data. Although the GM and Assistant GM are not permitted to explicitly use this information during a salary arbitration, just the mere knowledge of it can point to anchoring bias. Anchoring bias is a human’s natural tendency to rely too heavily on the first piece of information received when making decisions.[22] Is it natural or even possible for someone to use data for one purpose but then not let that same data influence their decisions for another purpose? If the General Manager and Assistant General Manager of a Club can continue to access this loophole to use data in salary arbitrations, that could lead to another problem: abuse of power. As one of the first professional sports leagues to regulate the ownership and fair use of the advanced data[23], the MLB will act as a case study for the National Football League, as conversations regarding commercial use of football players’ data are already happening.

 

[1] See Jen Booton, Widespread Wearable Use Could Fundamentally Change Professional Sports, Sport Techie, (Aug. 28, 2018), https://www.sporttechie.com/widespread-wearable-use-could-fundamentally-change-pro-sports/

[2] See id.

[3] Id.

[4] See Will Carroll, The Sleeve That Could Save Baseball: Exclusive Look at New MLB Technology, Bleacher Report, (July 2, 2014), INSERT LINK

[5] See Tom Goldman, What’s Up with Those Baseball Sleeves? Lots of Data, and Privacy Concerns, NPR, (Aug. 30, 2017), https://www.npr.org/2017/08/30/547062884/whats-up-those-baseball-sleeves-lots-of-athletes-data-and-concerns-about-privacy

[6] See id.

[7] See Carroll, supra note 4.

[8] Id.

[9] Id.

[10] See Tom Goldman, What’s Up with Those Baseball Sleeves? Lots of Data, and Privacy Concerns, NPR, (Aug. 30, 2017), https://www.npr.org/2017/08/30/547062884/whats-up-those-baseball-sleeves-lots-of-athletes-data-and-concerns-about-privacy

[11] See id. See also Will Carroll, The Sleeve That Could Save Baseball: Exclusive Look at New MLB Technology, Bleacher Report, (July 2, 2014), https://bleacherreport.com/articles/2097866-the-sleeve-that-could-save-baseball-exclusive-look-at-new-mlb-technology (explaining the extent of technology and what can be recorded by the sleeve.)

[12] See Carroll, supra note 11.

[13] See Goldman, supra note 10 (explaining how technology could be used to prevent elbow injuries, instead of just using the technology after the fact.)

[14] Mike Vorkunov, Innovation vs. invasion of privacy: MLB wearable technology battle looms, USA Today, (Sept. 21, 2016), https://www.usatoday.com/story/sports/mlb/2016/09/21/innovation-vs-invasion-privacy-mlb-wearable-technology-battle-looms/90783188/

[15] See Goldman, supra note 10 (citing lack of perimeters as a reason athletes might not take advantage of the positives that the technology offers.)

[16] Stephanie Springer, An Update On Wearable Baseball Technology, Fan Graphs, (Aug, 7, 2018), https://www.fangraphs.com/tht/an-update-on-wearable-technology/

[17] See Vorkunov, supra note 14.

[18] 2017 Major League Baseball Collective Bargaining Agreement, attach. 56 (Dec. 1, 2016).

[19] See id.

[20] See id (explaining that the data shall not be disclosed by a Club to any party other than those persons listed as permitted.)

[21] Eric Stephen, Salary Arbitration: A Necessary Evil, True Blue LA, (Feb. 17, 2014), https://www.truebluela.com/2014/2/17/5379764/salary-arbitration

[22] Mohammed, S. (2018). The Hidden Trap of “Anchoring Bias” in Decision Making and The Leadership Lesson From “Moneyball” Movie. [Blog] Medium. Available at: https://medium.com/@shahmm/the-hidden-trap-of-anchoring-bias-in-decision-making-and-the-moneyball-movie-79aa7295f21d.

[23] See Springer, supra note 16.

Image Source: https://www.overthemonster.com/2018/2/6/16979376/mlb-starting-pitcher-rankings-chris-sale