A couple of years ago, with apologies to British readers for the reminder, a credit check company ran a cloying set of UK ads starring two versions of the same comic actor.
The theme of the series was the ‘data self’: the composite that lenders pull together from every consumer’s commercial activity. In the best traditions of twee promotional metaphors, the whole concept did little to actually explain how the company’s services worked, but they did evoke the modern idea that each of us has a digital shadow giving up secrets we barely knew we had. These cheery doppelgangers, some noted with irony, also bore their own passing resemblance to a pair of YouTube characters called Dan and Dan.
The point, anyway, is this: personal data is valuable, as shown by the entire workings of the 21st century economy, and people don’t always get the credit they are owed.
Earlier this week, the Athletic’s David Ornstein broke the story of Project Red Card. A group of over 400 players across the Premier League, English Football League (EFL), National League and Scottish Premiership are taking legal action against gambling, betting and data processing companies for the use of personal statistics without payment or consent. The group hope to recover six years’ worth of income, a term in line with the UK statute of limitations.
The spearhead of the case is Russell Slade, who has left his own trail of performance data as the manager of a string of lower-league clubs including Cardiff City, Brighton and Hove Albion, Yeovil Town and Coventry City. He is also the co-founder of Global Sports Data and Technology Group, a firm he set up with Cardiff-based technology expert Jason Dunlop. London-based law firm Freeths is advising.
“I took Jason to a company to have an insight into how data works in sport," explained Slade, speaking this week to the BBC. "In that meeting he simply asked, ‘Who does the data belong to?'
“The guy at the company said, 'we do', and as we left we were going down the stairs and Jason was straight on me, saying the players should own the data as it's personal data. That was the lightbulb moment.”
Dunlop added: “We have no issue with football clubs using the data, nor do the players involved in this case.
“Our issue is where data goes thereafter. We believe it goes into betting companies, gaming companies.”
As indicated by the push for backpay, the Project Red Card initiative is concerned with the existing commercial value of player data as it is processed and sold by clubs, leagues and their partners. That might be for use in generating video game avatars or refining betting odds, or even within the sport for more efficient recruitment. Whatever the upside, Slade does not believe players are seeing it and he believes that is especially damaging to those further down the pyramid, with shorter careers or more limited earning opportunities.
But the case has every chance of becoming more consequential than that. The ownership and manipulation of data is a coming issue in the sports industry, and a relatively untested part of the law in many countries. As Fiona Green, co-founder of CRM and data consultancy Winners, wrote in a recent column for SportsPro, the bearing of the European Union’s 2018 General Data Protection Regulation (GDPR) on athletes has barely been assessed so far.
Green argues that once the implications of GDPR have been unwound, they could have as big an impact on contractual relationships in soccer as any legislation since the Bosman ruling of the early 1990s. As ‘data subjects’, players would have the ‘right to access’ personal information including biometric data, the ‘right to portability’ whereby they would take that data with them to their new employers after a transfer, and the ‘right to deletion’, where they could ask for all of that data to be erased.
That, if not suitably addressed in contracts, is a problem. It is enough of a complication in a sporting context, threatening havoc with the way teams work up analytics and maintain recruitment databases. The resale of that data, or its demonstrable use in cutting costs or driving up revenues, might lead to further exposure.
Project Red Card’s argument will hinge on who can actually be shown to have produced the information and how. To take the average soccer match as an example, a player might perform a series of actions – sprints, shots, successful passes – but if someone else is responsible for recording those actions, or particularly for interpreting or manipulating them in some way, the subject of ownership is always more disputable.
As Daniel Cooper noted this week for the tech outlet Endgadget, discrete facts like scores and fixtures exist in the public domain and cannot be copyrighted. He cites previous cases in the US and the UK – between Major League Baseball (MLB) and CBC Distribution in 2006, and between Yahoo and the English soccer league supplier Football Dataco in 2012 – that have established precedents.
There are plenty of ways of sourcing player data by scrutinising public performances in matches – the most obvious of which would be to watch and take notes, not exactly cutting-edge practice in 2020. Where things get more complicated is in the introduction of personal tracking through performance aids, not least where players contribute to datasets by supplying what amounts to personal medical information, like heart rates and metabolic activity.
Any interaction between those kind of details and more publicly available fare is only going to blur the lines. Still, the real accelerant here in soccer and sports far beyond it is the way in which data can be exploited.
You do not have to go far in the sports industry to find someone who will say the old ways are changing. The growing vulnerability of the live rights model is exercising a lot of minds. There is new money sloshing around. This week also brought the launch by RedBird Capital Partners and Moneyball progenitor Billy Beane of RedBall Acquisition Corp, positioned as the first sports-focused special purpose acquisition company or SPAC – otherwise known as a ‘blank check company’.
Investors of that genre tend to be interested in underexamined sources of value, a description performance data fits handily. Its merit in existing settings might grow as it becomes more sophisticated: think of gaming developers such as EA Sports and Konami building more depth into digital representations based on how age, weather conditions or injuries are known to affect certain players.
Any extension in the data made publicly available – perhaps at a cost – would create new opportunities and incentives. Bettors watching on a tailored over-the-top (OTT) service might pay more for access to biometric information if it gave them an edge. Knowing a team were losing shape as their legs slowed, or that a player’s chest was thumping as he or she took a vital free throw or penalty, might change the course of an in-play wager, or the decision to make one in the first place.
Personal training apps, combined with wearables or the new wave of interactive exercise equipment like Peloton and Mirror, would be another arena in which to stretch that data’s legs. Users could, say, test themselves against elite athletes or – more helpfully in most cases – map their own body type and performance goals on professional equivalents.
However realistic or lucrative those examples turn out to be, even hypothetical conversations around player data need some grounding in legal reality soon. One likely outcome may be that athletes fashion their data rights into a form of commercial leverage without completely undermining the status quo. The way image rights work would offer a vague parallel, with mechanisms established to compensate players in a negotiable but still pretty standardised fashion.
Athletes know well enough what they are worth in competition and in commercial media, and they were bound to wonder at the value of their data selves. The progress of Project Red Card could offer some answers there but they might not yet be definitive.