back to article Booting up: Footballers kick off GDPR case for 'misuse' of their performance data

A group of footballers – soccer players for US readers – are set to launch legal action over what they consider to be the unauthorised use of their personal and performance data. Industry advisor Global Sports Data and Technology Group, which is backing the group of leather ball kickers, has initially identified 17 major …

  1. Dinanziame Silver badge
    WTF?

    Statistical averages?? As far as I remember, there's no particular copyright or privacy right on publicly available facts. You might as well have Trump declare that his results in the election are private information that the media are not allowed to publish...

    1. Yet Another Anonymous coward Silver badge

      There is, at least in the Eu, "database rights".

      If you have gone to the trouble and expense of collecting and organising "public information" you can have copyright on that collection - but other people can still collect the same facts and publish their own identical list.

      1. big_D Silver badge

        Yes, but if the information in the database includes PII under the GDPR definition, you cannot share the information in the database with third parties or sell it on, without getting the written permission of the identifiable parties.

        The identifiable parties can also request that their information be removed.

        The owner of the database, on the other hand, does not have any obligation to compensate the identifiable persons, unless they have breached the GDPR rules above - and that is also likely to end in a fine from the DPR as well.

    2. JetSetJim

      It's another money grab, pure and simple. There are many companies that watch games and produce many stats - time on the ball, possess completed, shots, tackles, assists, ... The list goes on, and is across many sports. IIRC some of these are automated with player/ball recognition on the video feeds.

      Those companies make money from their efforts, ergo the players/clubs want their cut. No idea what's in the fine print off a ticket, as I don't watch any sports, let alone the overpriced buffoons (YMMV, e.g Rashford) kicking a ball around.

      It will be an interesting case, but one I hope the footballers lose. IANAL, so no prediction from me.

      1. big_D Silver badge

        The question is about the PII gathered. Once gathered, you can use it yourself, but, because it is PII, you cannot legally share it with others or sell it on, unless you have obtained the permission of the identifiable persons in your data set.

      2. martyn.hare
        Go

        It is possible to avoid collecting PII

        Since (shirt number + club) as your combined identifier is technically pseudonymous data. So their case should result in zero future impact on stat collection from sporting events, it just shifts the goal posts slightly when it comes to presenting it.

        IANAL but from what I remember, our NHS data uses pseudonymous linking to allow “opt-out” of medical records sharing. I can’t see a judge risking breakage of essential public sector data collection when making a considered judgment.

  2. bronskimac

    Taken to its logical conclusion, this means reporting of their goals, or any professional sports person's performance, would require their permission and possibly payment for the privilege. Live commentary would be impossible unless the permission of everyone playing, all officials and, very possibly, the crowd watching, was obtained in advance. The death of professional sport, if you can't show it or report on it, why would anyone put any money into it? Personally I'd quite like for sport to disappear from our screens and newspapers, but it might upset a few folk ;)

    1. Gene Cash Silver badge

      Yeah, that's the way it is with Dorna, who own the MotoGP rights.

      Their lockdown of even reporting who won a race is a big part of why MotoGP doesn't fly in America.

    2. Korev Silver badge
      FAIL

      There was a professional surfer a few years ago who decided that he should bill for people using his image so he sued successfully. He then lost all his sponsors and his career ended. Most people forget that than most professional sports people are basically a specialised form of model…

  3. DJO Silver badge

    I don't see how data that anybody who could be bothered to turn up at every game could gather can be considered protected or privileged data, it's 100% in the public domain.

    Any personal data however is a different matter but I doubt if the betting companies are interested in that.

    Data collected behind closed doors (practice sessions etc) is probably owned by the clubs but could be a grey area but again I doubt if there's much that's relevant to the bookies.

  4. Mike 137 Silver badge

    Strange argument?

    "The group's legal team argue that because players receive no payment for the unlicensed use of their data, their rights under UK GDPR are breached"

    I'd be interested in what specific right is supposed be breached by not getting paid. I entirely concede that use of the information should be conditional on one of the GDPR lawful bases applying, but getting paid is not one of them. They may of course be asserting that their wider rights or freedoms have been infringed, which is perfectly reasonable in principle, but whether not being paid amounts to such infringement would be dependent on such factors as any contracts in place.

    However (@Dinanziame) the GDPR applies to the processing of personal data even if it's been made publicly available by others. The criterion as to whether it's personal data is whether a person can be identified from it. So a notable player's individual performance statistics may be personal data if they're unique enough.

    1. tiggity Silver badge

      Re: Strange argument?

      Given that UK footballers are on decent wages (until you descend to the real depths of the football league) this just looks like more of their me, me, me, money, money, money, behaviour that a lot of sports fans (paid a pittance in comparison) are thoroughly pissed off with.

      A quick web search shows a league one 2019-20 average weekly salary was 4.75K , highest 16K

      So average around 250K PA, a lot more than most fans.

      .. and then there's potential extra income such as image rights, sponsorship deals, appearance at events etc.

      For non UK readers, league one is "third tier" of English football, beneath premier league & championship.

      Players in those 2 tiers are on "silly money" to put it mildly

      1. awavey

        Re: Strange argument?

        True, but I dont think most fans are worried about League One player wages, most players only have careers that span 10-15years, and wont end up on the gravy train of the managers merry go round, tv punditry or making documentaries on their addictions, basically end up in their mid 30s on the dole. It's the ones complaining about not earning the extra 250k per week most feel have lost touch with reality.

        So you can see why monetising such data is attractive for lower league players, and theres probably a case to be made that specific health metrics gathered by your club in training with all those sports performance tools & tracking is covered by GDPR and shouldn't at all be traded between clubs without the individuals consent, whether it intrinsically has value to be paid for is another matter and I doubt it has any beyond the impact transfer value of the player.

        But just standard in game metrics captured like goals scored, passes completed, bookings I dont think that's at all something that would be covered by this, the player literally provides informed consent by stepping onto the field of play in front of a potentially global audience. I dont think you can claim a right to privacy of that kind of stuff.

      2. Robert Grant Silver badge

        Re: Strange argument?

        This has nothing to do with anything.

  5. Cederic Silver badge

    interesting one to watch

    Instinctively data captured by someone stood to the side watching can't be private personal data. Even player height is probably caveated in the data T&Cs as "Approximation of player height" as it's based on something other than actually measuring the player. Certainly common sense suggests that the player can't be said to own the performance data collected by observation, as it's data about something they did in public.

    So I don't think they own it, and I don't think they have the right to control it. To use an awful analogy, it's like me suing my neighbour for telling the council I threw the contents of my cats' litter tray over the fence in to his garden. He's sharing information about something I did, against my will, but really it's unreasonable for me to claim I own that fact and demand he respects my privacy by not sharing it (or pays me for the privilege).

    Whether the law agrees is a different matter entirely. I wouldn't like to try and predict this one.

    1. I ain't Spartacus Gold badge

      Re: interesting one to watch

      From listening to sports journalists, I seem to remember that most of the player heights come from the clubs - either press releases or even just the player info on the website. However that height data is often ludicrously inaccurate. Possibly demonstrating that the clubs don't care, or sometimes because the player might be a little insecure about not being tall enough or somesuch.

  6. d4f

    Isn't their argument flawed though? The offended players more than likely are already well compensated for their games to which tickets and distribution rights are sold.

    Taking notes of those already paid-for and licensed performances should be considered illegal?

    1. big_D Silver badge

      Yes and no. That they should be compensated, yes, flawed. That these companies have a right to share and sell the information, no, that is covered under GDPR. If the player is identifiable, the owner of the information has to get permission from the player(s), before they can share or sell it.

      The same is generally applicable for any PII. E.g. if you scrape email addresses from websites and correlate them to identifiable people, through the website and through, for example, LinkedIn profiles or whatever, you can use that yourself (as long as the information is restricted to only those that absolutely need access within your business), but you cannot share it with business partners or sell it on to third parties.

      1. I ain't Spartacus Gold badge

        Does anyone more lawyery than me know much about the public interest bits of the GDPR? I understand that politicians aren't allowed to pull this sort of trick for example, as they're figures of legitimate public interest. And so are less protected.

        Admittedly we don't need to know as much about our footballers. On the other hand there is a legitimate public interest in their footballing activities, in the sense that football is a public game. But I don't recall how the public interest bits are written into the legislation, and I'm too lazy to check.

        Height is more of a grey area, but it seems ludicrous that someone can try to either hide (or monetise through the threat of hiding) the number of goals they've scored.

        Football isn't a stat-obsessed sport though. This would be much worse for cricket, which is. I know baseball and American football are also massively stats obsessed, but obviously they don't have to worry about the GDPR so much.

        1. big_D Silver badge

          Good point, I'd forgotten we were talking about public personalities.

          But that is more aimed at legitimate news services etc. reporting on them. Because they are a public figure, they can't ask for, for example, stories about them to be removed, a private person could.

          If a company has information on a public personality that isn't considered public or is incorrect, the PP can still ask for the data to be removed or corrected, AFAIK.

          As I worked as a DPO for a manufacturing company, PPs were not what I concentrated on...

          The Germans take it to extremes as well. There was a missing girl, who was being searched for. At the weekend and on Monday, a picture of her was shown in all news programmes. On Tuesday, she was found, so they could only show here with her face blurred out...

  7. Pascal Monett Silver badge

    Did I get this right ?

    They are basically trying to kill their fans' access to statistical data so they (the fans) can endlessly argue about who is better, bet on who will come ahead and, generally speaking, stay interested in the sport ?

    If there is an issue with private data, no problem, take it out. Except that their height and weight is a matter of public record, like or not, and GDPR has nothing to say about that, so I really don't really don't see where this is going except another excuse for the players to milk yet more money out of running behind a ball.

    I think they're already largely compensated for that.

    1. Yet Another Anonymous coward Silver badge

      Re: Did I get this right ?

      Or look at it in the extreme.

      You have accurate 3d position and pose of all the players through a match.

      You then replay that position information through CGI figures with their "publicly available" faces textured on and you show the entire match like that.

      You aren't "broadcasting" the match , you are merely replaying publicly available statistical data

      1. big_D Silver badge

        Re: Did I get this right ?

        Using their likeness without permission would be a violation.

    2. big_D Silver badge

      Re: Did I get this right ?

      There is nothing to stop them individually collecting this information. Companies collecting and then sharing/selling the information is a problem, however.

  8. martinusher Silver badge

    Statistics are part of sport

    Whether they like it not participating in a game creates statistical information. The level of detail might surprise many but its common practice in the US where you can find statistics on players that have been dead the best part of 100 years.

    I suspect its a money grab based on unintended consequences of well meaning legislation. The fix is to tweak the legislation.

  9. My other car WAS an IAV Stryker

    I think everyone is making the same arguments

    But I'm going to chime in with a couple of thoughts...

    Here in States-land, the major sports are subject to collective bargaining by the players' unions, which negotiate certain points of the game against the leagues (MLB, NFL, NBA/WNBA, NHL, MLS, etc.). Contracts range from rule changes (especially "video review") to salary caps to number of games a season to media rights. And the players, by having their contracts with their teams, automatically agree to the master collective bargaining agreement (CBA) at the same time.

    1. The leagues -- not the individual players or even teams -- hold copyright on their TV broadcasts, regardless of the network (Fox, ABC, CBS, NBC, ESPN, etc.). Thus, the league holds rights to player imagery, both static and in action. Thus, it could be argued the players have ALREADY signed away rights to statistics developed from the game action -- the league holds the video, so doesn't it hold copyright on the stats encoded in the video?

    2. If there were a case that game/player statistics were separate from game video or actual live-action observation, this would likely fall under the CBA, not under individual contracts. Thus, this is merely another labor dispute. Doesn't association football have top-tier player unions to negotiate things like this?

    1. Yet Another Anonymous coward Silver badge

      Re: I think everyone is making the same arguments

      It gets even crazier in the land of the treasonous colonials

      Students aren't allowed to be paid for performing in multi-million$ college sports because they are poor and black it would spoil the pure sporting ethos.

      They aren't even allowed to be paid when the league licenses their likeness for video games.

      But many of them have tattoos, and the tattoo artists claimed that they held the copyright for those tattoos - so they are paid when a student appears in the EA college sportball video game

      1. My other car WAS an IAV Stryker

        Re: I think everyone is making the same arguments

        I agree in principle that the NCAA profiting off students is ridiculous, but I thought they just revised some of the "image/likeness" rules just this past summer to allow for payments.

  10. IGotOut Silver badge

    Would these...

    ... be the same betting companies that sponsor their clubs and players.... I. E pay their wages?

  11. Anonymous Coward
    Anonymous Coward

    Russell Slade

    Thank you for not mentioning Russell Slade's spell as manager at Charlton Athletic. We don't like to be reminded about that...

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