Last week, Rian Watt published a terrific piece at Vice Sports on the growing use of wearable technology by Major League Baseball teams for purposes of collecting players’ biometric data. If you haven’t read Watt’s article, go check it out, it’s fantastic. In short, though, the piece explores the ethical implications of MLB teams asking their players to wear devices — such as the Readiband sleep monitoring system recently employed by the Seattle Mariners — that collect data that can not only be used for purposes of fine-tuning players’ on-field performance, but also potentially for roster- and contract-related decisions as well.
For instance, while the sleep-tracking data provided by Readiband could certainly help players adjust their sleep patterns to maximize their chances of performing at a peak level on the playing field, this data could also give teams insight into a player’s habits undertaken in the privacy of his own home. It’s not hard to imagine a team ultimately incorporating such information, or other forms of biometric data, into their player evaluations in ways that may ultimately harm a player’s career prospects or earning potential.
In addition to the ethical considerations surrounding the use of these technologies explored in Watt’s article, the collection of biometric data by MLB franchises also has potential legal implications as well. As Watt notes in his piece, wearable technology may very well become an issue during this year’s collective-bargaining negotiations between MLB and the Major League Baseball Players Association. Indeed, Pirates’ infielder Cole Figueroa recently mentioned during an episode of the Effectively Wild podcast that a number of MLB players are growing increasingly concerned over the potentially adverse consequences of the growing use of this technology by their teams.
It generally appears that, to date, MLB teams are not actively requiring their players to use wearable technology to collect biometric data; instead, for the time being at least, teams appear to be implementing the use of these devices on a voluntary basis. This makes sense, as neither the use of wearable technology nor the collection of biometric data more generally are currently addressed in MLB’s collective-bargaining agreement, therefore falling within something of a grey area, legally. (As I’ve previously noted, just because the CBA is silent regarding a particular practice does not necessarily mean that it is permissible.)
Outside of the collective-bargaining relationship between the league and players, however, there is little stopping MLB teams legally from mandating that its players use wearable technology to collect biometric data. Indeed, there are currently few, if any, protections afforded to employees — baseball players or otherwise — in this respect under federal law.
Along these lines, Professor Elizabeth Brown has written a helpful paper — forthcoming in the Yale Journal of Health Policy, Law and Ethics — analyzing the legal implications of employers mandating that their employees use Fitbit bands or other forms of wearable technology. And although one might expect that employers would be prohibited from requiring their employees to use such devices under one or more federal laws, no existing statute appears to protect employees from these sorts of requests.
For example, although the Health Insurance Portability and Accountability Act (HIPAA) generally protects the confidentiality of individuals’ health information, it is doubtful that this law would apply to MLB teams’ collection of biometric data via wearable technology. This is because HIPAA requirements generally apply only to entities within the health-care industry, such as hospitals, doctors, and insurance companies. Therefore, data collected by an MLB team, or a third-party vendor such as Readiband’s manufacturer Fatigue Science, typically would not be covered by HIPAA.
Similarly, although the Americans with Disabilities Act (ADA) generally prevents employers from requiring their employees to undergo medical examinations, it’s doubtful whether collecting most forms of biometric data via wearable technology would be considered a “medical exam” under the law. And even if the mandatory collection of some biometric data did legally qualify as a medical examination, MLB teams could potentially argue that it falls within an exception under the ADA allowing employers to require job-related medical exams that are a matter of business necessity (such as the physicals to which players are traditionally subject before signing a contract).
That having been said, MLB teams could theoretically risk running afoul of the ADA if they were to collect biometric data that allowed them to identify players with conditions rising to the level of a “disability” under the law. If, for instance, a team discovered that one of its players had a sleep disorder through its use of Readiband technology, then under certain circumstances that disorder could constitute a disability under the ADA. In that case, the team could potentially be limited in how it used this information when making future roster or contract decisions involving the disabled player.
Finally, although not applicable to most wearable technology or biometric-data collection, another law that could potentially come into play in this realm is the Genetic Information Nondiscrimination Act (GINA). Under GINA, employers are forbidden from discriminating against their employees on the basis of genetic information. This means that teams cannot require a player to undergo DNA testing, for example, and cannot use the results of such a test — or the player’s family medical history more generally — against him when making any contract- or roster-related decision.
At the same time, however, while GINA prevents teams from requiring players to submit to DNA testing, the law does not prevent employers from conducting DNA tests on employees who voluntarily agree to the procedure. So MLB teams could legally request that their players consent to DNA testing, much like they are requesting that players use wearable technology today. Even then, though, teams would be forbidden under the law from using the results of these voluntary DNA tests to discriminate against a player when making any future roster or contract decision.
All told, then, with the exception of mandatory DNA testing, there is currently very little legal protection preventing MLB teams from subjecting their players to the obligatory collection of biometric data. As a result, given the prominent role that wearable technology is poised to play in the industry in the near future, this is certainly an area that the MLBPA would be wise to try to address in the next CBA.
Nathaniel Grow is an Associate Professor of Business Law and Ethics at Indiana University's Kelley School of Business. He is the author of Baseball on Trial: The Origin of Baseball's Antitrust Exemption, as well as a number of sports-related law review articles. You can follow him on Twitter @NathanielGrow. The views expressed are solely those of the author and do not express the views or opinions of Indiana University.