Many of you reading this will be aware of the Bosman ruling concerning the freedom of movement of workers. But how many of you were working in soccer in 1990 when Jean-Marc Bosman first requested a move to Dunkerque or 1995 when the European Court ruled in his favour?
If you’re holding your hand up right now you will remember the huge impact it had on the player transfer market within the European Union, how many column inches it generated for the sports journalists, as well as how many clubs had to reassess the financial and timing impact the ruling had on their transfer decisions moving forward.
Now, 30 years on, we are on the cusp of another transformation in this area, this time driven by the GDPR (General Data Protection Regulation).
You will all have heard of the GDPR, or if you have not you will have experienced the changes it has made to the way we navigate the internet – those annoying cookie notifications the first time you visit a new website that started appearing around May last year for example.
But why am I suggesting these seemingly minor new wrinkles could create a Bosman-size chasm in the way we currently work with soccer players? Well, now those players are afforded new rights as 'data subjects' under the GDPR - as are athletes in any sports where transfers have an impact on their careers.
The new rights for data subjects:
1) The right to access – under this right, any soccer player can ask for access to the records that their clubs have on them. Crucially this includes all their data including biometrics, and any other performance-related information generated during a match, a training session, a medical session, etc.
2) The right to portability – any player can request that their data is made accessible for any other party to be able to access and “take”, transferring it into their own systems.
3) The right to deletion – now any player can ask any club, governing body, or league to delete all the data they have about them. Just like that – years of goal scoring history, performances, red cards, wiped from history. Forever.
So what are the potential ramifications on the transfer market? Primarily because of point two above. Imagine this situation. Club A wants to buy a player from Club B and knowing about the right to portability, asks the player to bring ALL their data with them. Club B refuses because they consider it their data, and Club A says to the player “if you don’t get me your data, I’m not going to buy you”. Club B would then be restricting the player’s ability to get a job. The very same issue at the heart of the Bosman ruling.
Add another level to this, if the player wins the argument and gets their data over to Club A, they then have the opportunity to reverse-engineer the data points and get an insight into Club B’s training methods.
There’s a potential flaw in my discussion here – the right to portability only refers to data that the player gave Club B, not the data that Club B generated themselves. So, would training data, biometrics, etc. be considered data the club generated or data that could only be generated by the player running, jumping, throwing, etc.?
I have tried to open this debate on several occasions with different people ever since Bas Schnater and I first discussed it as case study material for a book I wrote for the sports industry, 'Winning with Data', but there are the two main reasons I have never managed to get traction on the subject:
1) The subject of data is often included in a player’s contract with the club, i.e. ownership is already dealt with. My response to that is while it might be the case, when it comes to the law, it usually sits above any contract between two parties. The player and Club B might agree on one thing, but if the GDPR provides a route to contradict this, surely the law prevails?
2) It is opening a Pandora’s Box and why would you want to do so? Because when May 2018 hit, so many rights holders were not prepared, ill advised, or did not have clarity over what they should do next, and the impact was quite huge. I cannot tell you how many clients we have had to help recover their databases because they thought they had to delete them (they did not) or re-engage their fans because they thought they could not email them (they could).
Surely it is better to be prepared to manage a situation before it happens - to understand all the possible implications, to have a crisis management plan, to have a tried and trusted resource for assistance should we not know where to go?
I’m hoping that as a result of this post, there is enough interest out there to take this discussion one step further and investigate it. I know that the usual practice is to wait for case law – but do we really want to wait until a forward-thinking agent tests the theory with one of their players and the football world goes into freefall as we scrabble around to figure out what to do?
Fiona Green has operated in the sports industry for more 34 years, with the vast majority of her coming on the agency-side representing rights holders in sponsorship, TV rights and licensing. Now a CRM and BI practitioner, Green recently published a book 'Winning with Data: CRM and Analytics for the Business of Sports'. The work was nominated for the 2018 FT.com Best Business Book of the Year award.