Baseball and Privacy: A Canadian Perspective on Wearable Technologies

Two recent articles have highlighted a novel privacy issue regarding the legal implications of wearable technologies in Major League Baseball (MLB). Rian Watt first addressed the issue for Vice Sports, and Associate Professor Nathaniel Grow followed up with a post on Fangraphs about the American implications of MLB franchises collecting biometric data about their players. However, given that the Toronto Blue Jays operate in Canada, a perspective on this from north of the border is warranted.

Briefly put, and at the risk of repeating the two previous authors, certain MLB teams have asked their players to utilize wearable technologies which collect personal information (PI) which can be used by the team for purposes of baseball analytics and team decisions. One such example, a Readiband, collects information regarding an individual’s sleep.

As explained by Watt and emphasized by Grow, wearable technologies and the collection of PI from such devices are not addressed in MLB’s current collective-bargaining agreement (CBA). The matter may be addressed in the next CBA. Without any CBA provisions on wearable technologies in baseball, MLB players are left to rely on privacy rights and labour laws for any possible protection. Grow states that under US federal law, “there is little stopping MLB teams legally from mandating that its players use wearable technology to collect biometric data.”

For Blue Jays players in Ontario, a similar conclusion is likely, so long as the collection and use of the PI from any team mandated wearable technology is reasonable.

There are two potential statutory avenues which, at first blush, could be relevant to the collection and use of PI of Blue Jays players through wearable technologies. Unfortunately, it is unlikely either of these would be fruitful to oppose requirements that a player use wearable technologies, or the collection and use of the resulting information. Thus, common law privacy rights and labour jurisprudence may be the only option for MLB players.

The first statutory regime would be the Personal Information Protection and Electronic Documents Act (PIPEDA), which regulates the collection, use and disclosure of PI in Canada. Biometric data collected through wearable technology is considered PI under PIPEDA, and others have already discussed PIPEDA’s application to biometrics. However, in the employment context, PIPEDA has limited application as it only applies to employees of federal works, undertakings or businesses. PIPEDA would likely not apply to Blue Jays players and the collection of their PI in the employment context and PIPEDA does not appear to pose an issue regarding mandated collection of biometric data by the Blue Jays. An open question, however, is whether the mandated use of wearable technologies outside of regular MLB service time would be exempt from PIPEDA since it is arguable that the information collected in such circumstance would not relate to the players’ employment.

Similar to Grow’s position on the American Health Insurance Portability and Accountability Act, Ontario’s Personal Health Information Protection Act (PHIPA) is unlikely to apply in this situation. Notwithstanding that some of the PI collected through wearable technologies may qualify for the requirements of “personal health information,” the majority of PHIPA’s obligations apply only to “health information custodians.” It is unlikely the Blue Jays and their training staff would meet the exhaustive statutory definition of “health information custodian.”

Outside these statues, and with a disclaimer of the author’s lack of complete knowledge concerning the terms of the CBA, Blue Jays players would be left to rely on the Canadian common law right to privacy and labour law jurisprudence in order to oppose any team mandated use of wearable technologies. In a nutshell, in the circumstances of employee surveillance, case law requires such activity be reasonable in all the circumstances unless the employee voluntarily consents. Given the substantial financial investment made by the Blue Jays in their players, there is an argument that some form of surveillance through the use of wearable technologies is reasonable.

At the moment, the Blue Jays are reportedly employing wearable technologies on an opt-in approach. As Sportsnet Magazine’s (and fellow Western MIT alumnus) Arden Zwelling informally told me on Twitter, the Blue Jays have made some form of wearable technologies available to their players. The ultimate decision to utilize such technologies rests with each individual. Apparently, and as previously reported, Marcus Stroman had no issue with some form of technology collecting his PI during his rehab and recovery from ACL reconstruction; it is unclear whether any technology was used to measure his heart.

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Author: Adam Jacobs

Adam Jacobs is a partner at Hayes eLaw LLP. His practice is focused on intellectual property, privacy, media and technology law.

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