In language newly added to their 2017 collective bargaining agreement, the NBA and the National Basketball Players Association have agreed to a set of rules governing the use of wearable technology by the league and its players. These rules set important precedents for the use of such technology, and the employer-employee relationship, that will likely resonate far beyond the hardcourt.
In the CBA, NBA players have established the right to their own data, banned the use of such data in contract negotiations, and established standards for the approval of new devices and the punishment of data-use violations. While both parties have yet to answer the critical question of how, and on what scale, player data will be sold to third parties, the adoption of these rules nonetheless marks a major step forward in clarifying the boundaries of a relatively new frontier for athletes.
Wearable technology presents a complex set of challenges and opportunities for professional sports teams and the players they employ. Teams, quite understandably, would like to collect as much biophysical data as possible on their players, while players—equally understandably—are more than a little wary of being asked to wear technology that, for example, literally watches them while they sleep.
The problem, besides a general whiff of Big Brother, is that the incentives don't always line up. Sure, both team and player benefit when an insight gleaned from a wearable—say, about a player's optimal cool-down period, or his ideal recovery strategy—improves player performance. That's a win for all involved. But things become quite a bit less congenial when it comes to things like negotiating contracts. when teams, say, try to use data from wearables to justify lowball contract offers.
If data a team has collected on a player's performance via wearables suggests he's not as good as traditional statistics might indicate, they might be motivated to use that to justify a lowball contract offer. But would they be right? Does the player's contract of employment with the team give that team a right to collect whatever information they want about him, and use it however they like?
Those are the questions I wrote about at length back in May, when I discussed wearables in the context of Major League Baseball, and that league's then-ongoing CBA negotiations. Well, since then, baseball's got itself a new CBA, and we still don't have many answers. Early indications are that wearables language got into the CBA, but since we don't have the full text, we don't know precisely what standards the league and players have set.
The NBA, however, has published the full text of its new CBA online, and so we know not only that wearable technology now has its own section (lucky number 13, and up from literally zero mentions in the previous CBA) but exactly what the new provisions are.
Here's the rub: the NBA's new rules are, generally, good news for the players—they establish, importantly, a presumption that players own all data about themselves, and ban the use of wearable data in contract negotiations. However, they still leave big questions, especially about the future sale of wearables data to third parties, open and unanswered. (VICE Sports reached out to the NBA and the NBPA for comment but did not hear back.)
Let's break it down. The first six clauses of the wearables language are mostly boring, and relate to the establishment of a "wearables committee," which will be responsible for approving the use of new devices and storing data that comes from them. That's all well and good, and a welcome development, but the meat is in the last three clauses.
Clause the seventh establishes that before any team asks any player to wear any wearable, even approved ones, they have to share with the player: 1) what exactly the device measures, 2) what the measurement means, and 3) why wearing the device will be beneficial to the player. Moreover, the player can stop using the wearable at any time. This is a big deal.
One of the major player concerns going into this negotiating period was that teams, with their large and growing analytics departments, would have significant advantage over players in terms of their ability to act upon wearable data, and moreover would be able to coerce players into wearing technology that would mostly be of benefit to the team, and might even harm the player's position in future bargaining.
That's much less likely to happen now, at least in the NBA, because the next clause of the wearables language establishes that a player will have full access to all data collected on him, that that data may only be used to help improve the player's on-field performance, and may not figure into contract negotiations, and that any violation of this clause by a team may result in a fine of up to $250,000, to be awarded by the wearables committee.
Now, there's a bit of wiggle-room for the teams there—if the same people are collecting data and negotiating contracts, as they often are at the senior levels, then how can they possibly just not consider what they have learned about the player when offering him a contract? Overall, though, it's mostly a win for the players, with important allowances for team use of data for improvement and understanding. Violations may be hard to prove, but they are now, for the first time, defined as violations.
So, that's the language about areas of contention—how teams and players use the data for their own purposes. More interesting, and completely unresolved, however, is the language around an area of common purpose: making money.
The final clause relates to the commercialization of wearables data. This, simply put, is the future of the technology. It isn't hard to figure out why ESPN—or any number of third parties—would love to buy information on, say, LeBron James' blood pressure as a game enters its final minutes, or the moment he sees Charles Barkley in the stands. But who has the right to sell that information? James or the Cavaliers?
The new CBA basically punts on the question, saying that the parties are still negotiating and nobody's going to sell anything until they've all agreed on how they'll do it.
That's going to be an important negotiation to watch going forward—not just for professional athletes but for anyone, really. The debates over the terms of these CBAs are, at the end of the day, debates over the nature of the employer-employee relationship. Issues surrounding wearables in the NBA could soon translate to those faced by your average office worker, if they aren't already. Many employers already track employee keystrokes. What would happen if employers decided they also had a vested interest in employee health, and required employees to track their steps, or stand a certain number of hours every day? That question isn't too far off from being asked in real life. And so debates over the limits of employer rights, even within the context of the NBA, are important because they touch on issues of privacy and personal ownership that exist in nearly every domain of life.
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