The Next Frontier of Baseball and the Law by Sheryl Ring December 11, 2018 Perhaps the subject most frequently discussed in the chats and pieces that appear at FanGraphs is what the next great baseball innovation will be. Most teams have caught up on the analytics revolution heralded by Moneyball; even longstanding holdouts like the Orioles and Giants have surrendered to the inevitable and embraced the modern game. So what comes next? In an age in which everyone has access to advanced metrics, where will the next advantage be found? One could argue that it’s already here and has been for a few years already, developing right under our noses. This movement actually started not in baseball, but in the National Basketball Association (NBA), which, in the past five years, began the gargantuan undertaking of incorporating biometrics – that is, the measurement of the bodies of the players themselves – into the fabric of the league. To see how this works, let’s take a look at this excerpt from a Tom Haberstroh ESPN story about how biometrics changed the career path of NBA star Kawhi Leonard. When [Adam Silver] took over for David Stern [as NBA Commissioner], he made a series of changes to sharpen the NBA’s measurements. For the 2013-14 season, the league partnered with Stats LLC and installed SportVU player-tracking cameras in every arena. Now player speed, distance traveled and acceleration can all be cataloged and chewed on by data-crazed NBA fans and teams. The cameras even track potential assists. In one sense, this sounds like the NBA version of Statcast. But it’s significantly more than that. More quietly, in 2014 Silver hired a sports science institute called P3 Applied Sports Science to modernize the league’s draft combine. Beyond using tape measures, P3 puts players through a series of movements assessed by high-tech force plates embedded in the floor and cameras shooting from multiple angles, all feeding data into laptops. The founder, Dr. Marcus Elliott, says P3 asks not just how high do you jump but also how do you land and how high and how quickly can you jump a second time. The goal is to find patterns that predict injury. If a player lands on his right leg with disproportionately more force than his left, for example, that might be a signal of weakness in his left ankle. Even the smallest hitch in a player’s running pattern could, over time, create a chain reaction of physical breakdowns, a human butterfly effect. So it is that the NBA has become primed to optimize a player with the right unique mix of physical attributes — the type of player who might have been overlooked just a few years ago. In other words, while Statcast is looking at the metrics of what happened, the NBA has started looking for predictive metrics based on a player’s own physiological attributes. During his second NBA season in 2012, Leonard was sidelined for 18 games with quadriceps tendinitis near his left knee. That offseason, the Spurs sent him to P3 to assess his vastus medialis, a teardrop-shaped muscle in the quads that powers the knee joint. “They focus on trying to balance out your body,” Leonard explains. “You don’t train there. I learned more about the body.” When P3’s evaluation showed imbalances from his injury — the particulars of which P3 refused to reveal to ESPN — Leonard and Shelton devoted that summer to ensuring his quads weren’t just strong but symmetrically and multidirectionally strong. “Most players are linear; they can run in a straight line and jump vertically,” Shelton says. “But with Kawhi, we focus on perfecting change of direction.” The success of the NBA’s biometrics endeavors led the league the expand the initiative further – much further. In 2014, Eric Freeman wrote for Yahoo Sports that teams had begun monitoring their players’ sleep, and were proposing regular blood tests. [T]he Golden State Warriors [are] having Andre Iguodala and others wear wristbands to monitor their sleep. In truth, most of the examples are fairly innocuous and involve players undergoing tests that would figure to improve their performance with minimal invasiveness. Every player mentioned also seems to take the monitoring and its results seriously, to the point where the information revealed could not be used against them in any obvious way. However, the piece also includes several statements, like those from the Kings front-office members mentioned above, in which NBA decision-makers indicate that they would much prefer to track players’ fatigue levels with invasive procedures like regular blood tests. The stated goal is to keep players healthier so that franchises don’t lose money in salary via games spent on the bench, but the authors are right to suggest that the same information could easily be used against players in contract negotiations. . . . Rather, the question is if teams extracting data (or, as the recently retired Shane Battier fears, all bodily fluids) from players represents too much oversight and a breach of proper relations between employers and employees. And last year, Jimmy Golen wrote for NBA.com that teams were now assessing players’ vital signs as they played, capturing that data and using it to predict injury and improve performance. It is no longer enough for a basketball team to know how many shots a player makes, or even where he was standing when he made it. Sports data is going biometric, tracking players’ heart rates, movements and energy levels to get a better picture of what’s going on inside their bodies as they run, jump and even sit on the bench. And, device-makers say, the technology can help coaches decide who needs a rest, who needs more work, or who might be most at risk for injury. “Do you have eyes on every single athlete, every single session?” said Calvin Torres, a sports scientist with the tracker and data company Catapult, who’s heard all the complaints from old-time coaches who insist that they can do the same thing with their eyes and their instincts. “If you put a monitor on them, you do.” These efforts have been so successful that teams in other leagues have joined them. As Golen wrote, “Catapult is already working with 16 NFL teams, 15 in the NBA and four in the NHL, along with more than a thousand in high school, college, national and pro teams in dozens of countries and sports from rowing to rugby and badminton to bandy.” By last year, NBA teams were talking about quantifying injury risks based on movement pattern analysis. What’s missing in this strategy is objective, reliable information about a prospect’s injury risk factors and physical proposition. Unfortunately, there is not yet a mandatory pre-draft test that supplies such data. That’s where movement pattern analysis technology comes in – technology that provides coaches with a virtual team of biomechanical experts that output valuable insights that can lead them to making a more informed draft selection. With the latest solutions offering quick & automated assessment, teams need no more than a few minutes to obtain this imperative piece of knowledge during personal pre-draft workout sessions. By getting a complete picture of a player’s capabilities — how strong his knees are, how stable his ankle movement is, how refined is his jumping technique — teams can greatly increase the likelihood that their pick will remain healthy and able to perform daily, and develop training plans that will enable turn them into the superstar they were yearning to get. Adding this piece to their puzzle, NBA decision-makers can sleep just a bit more soundly at night, knowing that they are way ahead of the curve. This is the newest frontier in professional sports – and in major league baseball. And it’s easy to see why: the ability to quantify player injury risk, movement, and health is tantalizing. Imagine if teams could predict, based on movement pattern analysis, a pitcher’s risk for ulnar collateral ligament damage? Or if a team could anticipate injuries like Prince Fielder’s ultimately career-ending spinal damage before he signed his $214 million mega-deal with the Tigers? And the applications go beyond just injuries. Range could be quantified for infielders not just based on Statcast, but on physiological capability. Lateral movement and first-step quickness could be improved and predicted, not just measured. Age-related decline could be predicted with exacting accuracy based on measurable bodily degradation. Simply put, such technological advances could revolutionize professional sports. But it’s not that simple. Why? Because teams are players’ employers. Think of the privacy concerns that could arise from your employer measuring your breathing, your heart rate, your blood levels, and even your sleep patterns, sometimes when you aren’t on the job. Suddenly, employees never have true off-time, because their employer knows their physiology whether they’re on the clock or not. If health information leaked to the press, it could be embarrassing or worse. There’s a reason that Congress passed the Health Insurance Portability and Accountability Act of 1996, which you probably know as HIPAA; in the United States, health information is and should be private. FanGraphs’ own Rian Watt wrote for Vice Sports last year that the issue is rapidly approaching a critical point. Imagine an office job wherein every keystroke, every mouse movement, and every roll of the desk chair is tracked and logged. Or don’t—such jobs already exist. Then add a heart rate monitor, a live video feed, and the inability to leave for another employer to that picture and you have a general sense of life as a professional baseball player in the biometric future. The issue is that while HIPAA regulations say an employer generally can’t require an employee’s healthcare provider to turn over medical records, those regulations don’t prevent an employer from asking the employee to tender those records. In other words, HIPAA likely doesn’t stop baseball teams (or the NBA, or the NFL) from collecting biometric data. As Barbara Osborne and Jennie Cunningham wrote in an excellent article for the Marquette Sports Law Review: Under the statutory language of HIPAA, most of the medical staff employed by professional sports teams would almost certainly be considered healthcare providers subject to the privacy and security requirements of HIPAA. . . . However, [the Department of Health and Human Services] issued a response during the notice and comment period that communicates the opposite effect: DHHS first noted professional sports teams were “unlikely to be covered entities” that would need to abide by HIPAA privacy rules. Further, even if teams would be covered or partly covered, DHHS noted that—although it did not condone a blanket reduction of privacy for an entire group of individuals (like players), it is fully within the purview of employers to “mak[e] an employee’s agreement to disclose health records a condition of employment” (as is maintaining a certain level physical fitness). DHHS adopted language “excluding employment records maintained by a covered entity in its capacity as an employer from the definition of ‘protected health information.’” Operationally, the effect of the guidance is to affirm teams’ power to compel players to disclose health information (waive HIPAA privacy) and subsume the information into the employment record of each player. Once considered part of the employment record, the contents of the record are not viewed as protected health information. Recognizing this, the National Basketball Players’ Association (NBPA) negotiated language governing biometric data into their latest collective bargaining agreement with the NBA. Article XXII of the NBA’s CBA, governing Player health and fitness, guarantees that all player health information will remain confidential and the property of the player, and limits its allowable uses. And biometric data obtained from wearable technology cannot be used in contract negotiations. Data collected from a Wearable worn at the request of a Team may be used for player health and performance purposes and Team on-court tactical and strategic purposes only. The data may not be considered, used, discussed or referenced for any other purpose such as in negotiations regarding a future Player Contract or other Player Contract transaction (e.g., a trade or waiver) involving the player. In a proceeding brought by the Players Association under the procedures set forth in Article XXXI, the Grievance Arbitrator will have authority to impose a fine of up to $250,000 on any Team shown to have violated this provision. The National Football League Players’ Association (NFLPA) also sought protections for its players in its most recent CBA, including language saying that “players must agree to disclosure of their injury relevant HIPAA information…” But so far, the MLBPA’s approach has been curiously divergent from that of the NBPA and NFLPA. While those unions have been working to limit the use of wearable technology and biometrics, the MLBPA has been slow to seek any protections for MLB players. And given how wearables and biometrics entered baseball in earnest in 2016, that’s somewhat distressing, particularly when you consider the warning Nathaniel Grow gave when he covered this topic most recently: 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. And in August, Stephanie Springer wrote for The Hardball Times that MLB has approved nearly a dozen different wearable devices for in-game use, collecting data on everything from sleep patterns to heart rates. Now, that doesn’t mean that the MLBPA has necessarily been asleep at the switch. Attachment 56 to the latest CBA, which governs wearable technology and data, guarantees the confidentiality of data obtained from wearable technology. Any and all Wearable Data shall be treated as highly confidential at all times, including after the expiration, suspension or termination of this Agreement, shall not become a part of the Player’s medical record, and shall not be disclosed by a Club to any party other than those persons listed in this Paragraph 4 without the express written consent of the Player and the Association. In addition, all such Data must be destroyed or permanently deleted in the event a Player requests to have such Data destroyed or deleted, in which case a Player may request a copy of his data prior to its destruction or deletion. This language is based, in part, on an Illinois statute called the Biometric Information Privacy Act (BIPA), and mirrors the language of the Illinois law. But there are differences. For one thing, biometric data is defined much more narrowly in Attachment 56 than it is in BIPA, giving MLB significantly more latitude. And Attachment 56 conspicuously omitted this language from BIPA: A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first. Absent a valid warrant or subpoena issued by a court of competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines. And there are some other notable omissions. While the most recent CBA does guarantee that wearable data cannot be used in salary arbitration, there is no prohibition in the CBA on using it in contract negotiations generally, or in trades. Unlike the NBA’s CBA, there is no provision providing a penalty for violations. And unlike both the NFL and NBA agreements, the MLB CBA does not contain strict language stating that medical records are the property of the player. Now, the CBA does provide a prohibition on public disclosure: A Club Physician or Certified Athletic Trainer treating a Player . . . shall be prohibited from making any public disclosure of a Player’s medical information absent a separate, specific written authorization from the Player authorizing such public disclosure. That this language is less stringent than the NBPA negotiated has real effects, because it transfers the burden from the League to the player. And perhaps most significantly, the MLB CBA and Attachment 56 do not include minor league players within their scope, meaning that major league teams seemingly can lawfully compel minor leaguers to surrender data from wearable technology. As Nicholas Zych wrote for the DePaul University Journal of Sports Law, “In the approaching battle over [biometrics data] ownership, rights-holding Clubs will have a strong upper hand over MiLB players.” And that’s another reason why the current CBA scheme is so flawed from the player perspective. If teams already know sensitive information regarding minor leaguers’ health – information which they are not required to keep confidential given the exclusion of minor leaguers from the CBA – it could give them a plausible-seeming reason to delay promotions and stunt service time accrual, and perhaps even manipulate trade value. And major leaguers could see their earning potential reduced by medical and biometric data dating from when they were in the minor leagues. When players are called up to the major leagues, sensitive data regarding their health may already have been compromised without remedy, giving further ground to a team which wishes to exploit it. “With all of this, player consent is critical,” says Alan Milstein [to Watt], a New Jersey-based attorney who practices in both bioethics and sports law. . . . “A young player, 19 years old, when he sees the team physician, is going to be under the impression that that physician is his physician, and that there’s going to be some kind of doctor-patient relationship with some kind of fiduciary duty that the physician owes to him,” Milstein notes. “But that physician really works for the team, and that creates a lot of ethical issues.” So what’s the solution here? This is one issue where the MLBPA needs to take a much firmer stance, not only on behalf of major league players but minor league players as well. Thus far, the MLBPA has notably been the least active union when it comes to these issues, and also the only one which provides such limited protections to future high-end professionals; the MLBPA CBA gives no defense to minor leaguer whose biometric data is being collected until the day he is added to a 40-man roster. That is simply not tenable, particularly given the incentive it gives teams to extract as much data as possible from minor leaguers for as long as they can. The MLBPA has essentially provided a route by which teams might one day have a staggering amount of private health information concerning its members, almost none of which will be subject to legal protection.