Twenty years on from the advent of the “Moneyball” era in US Baseball, data is the new gold across a multitude of sports. Fans of every sport pore fanatically across game, match and individual performance data. But who owns the data and are players and athletes disadvantaged when it is traded and used?
This is a question that has become increasingly contentious and as part of London International Disputes Week 2023 (LIDW) will be explored by our expert panel who will consider why sport is so focused on data to drive decision making and the benefits to players and athletes if data is appropriately exploited by them.
On 17 May 2023, the sport and dispute teams of Ankura and Linklaters will be joined by panel members, including Anya Proops KC (Leading privacy and data protection silk from 11 King’s Bench Walk), Jordan Gardner (M&A and Investment consultant with Twenty First Group), Spencer Nolan (former head of Media Rights, M&A and Partnership at Nielsen Sport) and Jeremy Steele (CEO of Analytics FC), for what promises to be a lively panel with views from all sides of the debate.
If you’re interested to find out more about sports data and disputes, please RSVP to attend the panel event on 17 May 2023 by clicking here.
For now, however, find below a teaser of what you can expect…
1. Types of data
Sports can generate a whole host of data and disputes are starting to emerge as to who “owns” this data. There are two broad categories: (a) “competition data” is the term that refers to the actual outcome of a match, such as the score at the end of a game; and (b) “performance data”, which refers to statistics and details about how the teams and the individual players performed, including anything from heart rates to video footage.
These two categories can also become blurred, which makes it even more difficult to delineate who, in fact, “owns” (or perhaps more accurately “controls”) the data.
2. Is performance data, personal data?
In the UK, the main sources of protection for personal data are the General Data Protection Regulation (‘GDPR’) and the Data Protection Act 2018 (with the UK’s law commonly referred to as the “UK GDPR”). Article 4 of the GDPR defines “personal data” widely, to include any information relating to a natural person who (a) can be identified or who is identifiable, directly from the information in question; or (b) can be indirectly identified from that information in combination with other information. This terminology is broad enough to cover many aspects of the data collected during a match.
Performance data can have many uses, on and off the pitch, including (among others):
- Opposition research: A recent example of this from the world of football came very recently. In a post-match interview, Real Madrid manager Carlo Ancelotti spoke about how his team was able to use data from recent Chelsea games to note that their keeper had a habit of standing off his line at kick-off.
- Gambling and betting: For example, where performance data is used to calculate odds and provide information (including in real time) to those placing bets.
- Player trading: A potential revenue source if well executed, this is the process of buying and selling players. Data analytics might identify trends in performance or physical attributes for players that drive a club to buy or sell.
- Acquisition Strategies: Investors can use data to identify appropriate clubs and franchises to acquire, particularly in multi-club/multi-sport ownership models. Analytics can identify teams with outstanding youth academies and clubs with squad profiles that might fit the strategy of the investors. Analytics can also forecast likely finishing positions and associated revenue.
3. Players’ data
A small number of players have suggested they should have more rights and control over their performance data.
Players have also claimed their image rights are being used without their permission for the purpose of sports video games, such as EA’s long running FIFA series.
These developments have led to player’s interest groups such as FIFPRO (the worldwide trade union for professional football) deciding to develop a Charter of Player Data Rights in consultation with FIFA. The Charter sets out a series of rights that it believes players should have over their data. This is designed to enable players to be able to access, transfer and control how sensitive data is used.
4. Exclusivity of data and gambling disputes
A related question to the claims of who owns the data is the question of who is authorised to collect and distribute it. The most lucrative of these is the market for ‘fast betting’ data which refers to live performance data that is used by both betting companies and gamblers. This data can be collected electronically but is often collected by means of scouts who are physically present at games. In order to protect these exclusive rights, sporting organisations often include terms and conditions on tickets to venues preventing others from collecting this information.
Three cases have arisen in this area:
- SIS / TRP: One of the major cases on this topic was a dispute between The Racing Partnership (‘TRP’) and Sports Information Services (‘SIS’), which went up to the Court of Appeal. TRP accused SIS of unlawfully obtaining and distributing fast betting data from another group which was sending scouts to races. This was alleged to be contrary to the exclusive contract TRP had signed with the owner of the racecourses. The Court of Appeal found: (a) in favour of SIS determining they had not acted in breach of confidence by receiving race day data from another group; and (b) against SIS who was held to be liable under the tort of unlawful means conspiracy. This dispute eventually ended in settlement ahead of any Supreme Court ruling.
- Genius Sports / Sportradar: In football, Genius Sports and Sportradar had a similar dispute over data in the Premier League, EFL and SPFL. Genius Sports had an exclusive contract for data rights in these leagues, signed with Football DataCo, which was the entity set up by the leagues to control data rights. Sportradar initiated a claim in the Competition Appeal Tribunal, alleging the exclusive contract was a breach of competition law. This led to a countersuit by Genius Sports, which alleged that Sportradar was sending scouts to matches and unlawfully collecting data in a manner contrary to Genius Sports’ exclusive license. The parties settled their claims late last year. The terms of the agreement allowed Genius Sports to maintain its exclusivity over fast betting data in these leagues. However, Sportradar was allowed to provide a secondary feed for this data, which would be sub-licensed by Genius Sports. In turn, Sportradar would cease sending its own scouts to games.
- IMG Arena / Stats Perform: IMG Arena has reportedly initiated proceedings in the High Court against Stats Perform. IMG Arena had the exclusive rights to provide fast betting data for the ‘European Leagues’ – a collection of football leagues in 19 countries. IMG Arena alleges that Stats Perform was dispatching scouts to games that it had an exclusive license for and violating the terms of its agreement. If this case does proceed to trial, it could provide further insight into who has the right to collect sports data (and in what circumstances).
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For further information, please contact:
Tom Cassels, Partner, Linklaters
tom.cassels@linklaters.com
