STOP CHASING THEM AWAY: POOR PRIVACY RIGHTS IN THE SPORTS INDUSTRY HAMPERING GROWTH
This post has been authored by Ms. Parul Anand.
Ms. Parul Anand is a second-year student of B.A. LLB. at National Law University, Jodhpur. She is deeply interested in understanding and exploring how technology interacts with law and society. Protecting personal data and privacy rights are the causes she cares about.
INTRODUCTION
The right to privacy and data protection principles have surfaced in the public consciousness ever since Puttuswamy established it as a fundamental right. Like no other, the sports industry stands to gain immensely from such an inclusion. Doubts are raised about whether such an onerous standard could become a disincentive for entry into the industry. However, such an understanding is motivated by a flawed conception of privacy rights catering only to the elite. The Apex court in Puttuswamy refuted such an understanding by taking inspiration from Amartya Sen.
The fundamental right to Privacy and subsequent data protection regulations are necessary not just for the growth of the sports industry but for the growth of any individual itself. Such violations certainly lead to athletes’ resistance towards joining and staying in the industry. For instance, Athletes often choose to opt out of competing at higher levels because of higher publicity and a resultant loss of their privacy rights. They also risk patrimonial prejudice. It is then no surprise that the inclusion of privacy mechanisms in the sports industry becomes necessary for its growth as such a problem of resultant exclusion of athletes is very real and immediate.
EXCLUSION OF TRANSGENDER AND WOMEN ATHLETES
Caster Semenya’s case at the European Court of Human Rights demonstrates a spitting image of the problems faced owing to the interplay between an utter lack of privacy protections combined with strong gender discrimination leading to anti-inclusivity and challenges to the growth of sports. Semenya was subjected to an incredibly invasive examination, the news of which was also leaked to the press. This ordeal resulted in her going into hiding and getting treatment for trauma.
Spanish Hurdler Maria José Martínez-Patiño’s story is equally distressing; where she was expelled from her athletes’ residence, her sports scholarship was revoked, and her running times were entirely erased from my country’s athletics records after an invasive testing and subsequent leak of such personal data to the general public. Such countless incidents serve to jeopardize valuable talent and the future of the sports industry. As D.B., another runner, put it succinctly in a Human Rights Watch interview on November 13, 2019, “They are chasing us away from sport” this lack of constitutionally guaranteed mandates is driving athletes away. Due to extant absent privacy safeguards and discriminatory practices, such statements also illustrate one of the greatest hurdles to growth in the sports industry: the inclusion of transgender and women athletes.
In a country like India, which struggles significantly with including transgender athletes, or even women athletes, a large sect of potential athletic talent is entirely excluded. Dutee Chand’s fight for her privacy and human rights violations is a case in point. Chand was asked to undergo corrective surgery or hormone treatment by the International Association of Athletics Federation (IAAF). Instead, she went to court. By strongly influencing her decisions regarding her own body, especially when such decisions directly impact her sex, a grave privacy violation occurs. The contours of sex have long been held to an entirely private sphere, and autonomy is linked directly with informational privacy. Chand’s recourse then seems entirely reasonable: a position that Switzerland’s Court of Arbitration for Sport (CAS) reaffirmed. These violations inevitably result in disincentivizing such athletes. Such an exclusion results in a loss of a potential chunk of incredibly valuable athletic talent as well as lead to concerning violations of their constitutionally guaranteed fundamental rights: a double loss for a country like India, which struggles both in retention, growth, and inclusion of athletic talent and in major democratic indexes.
DISINCENTIVE TO CURRENT TOP TALENT
It is not only athletes like Caster Semenya who belong to a sensitive gender group that are disincentivized to join owing to a lack of effective privacy and data protection regimes in place but other athletes who are not at a disadvantaged position in society owing to their identity, also raise concerns regarding such privacy violations which discourage entry in the sports industry for them. Eric Cantona, a French footballer, successfully sued “Foot Edition” publishing house after his personal data was used without his consent, which resulted in his great loss. Moreover, initiatives like Project Red Card effectively address this part of the equation. Project Red Card involves players from the English Football League coming together to affect a lawsuit against their personal data and privacy violations. All these illustrate how current talent is highly disincentivized owing to their constant human rights violations hampering industry growth. Strong data protection mechanisms in place thus become indispensable to avoid that.
PRIVACY RIGHTS ENCOURAGING TRANSPARENCY, FAIRNESS, ACCOUNTABILITY AND SPONSORSHIP FUNDING
Data protection measures and rights mechanisms ensure growth by encouraging fairness in player selection. As such requirements make it necessary for personal data to be handled incredibly selectively and cautiously, the chances of discriminatory selections, which form a sure barrier to growth and inclusion in the sports industry, are allayed. Incorporating such a standard will help the whole area become more transparent and accountable, more people are willing to join and continue in the industry. These standards would include better practices with handling athletes’ biometric and personal data and inculcating informed and free consent mechanisms before such collection. Another way in which the absence of data protection regimes at the ground level in the Indian landscape is restricted sponsorship money.
With data protection becoming a staple in the public consciousness, organizations, especially international ones with great resources, have become selective about investing in arenas with such safeguards as investing in data protection becomes a key decision that all businesses are taking. Firstly, they do this because it protects them from loss that could arise from a potential data leak. Secondly, it helps them orient themselves as socially aware institutions. Thirdly, it is legally mandated if they are to operate on an international level owing to compliance obligations arising from legislations such as the European Union’s General Data Protection Regulation and the US Consumer California Privacy Act. Therefore, sponsorship money, one of the most important resources required in the sports industry for its continued existence, growth and expansion, risks substantial reduction owing to inadequate data protection mechanisms, thus jeopardizing sport’s growth.
EFFECT ON PERFORMANCE AND CONCLUSION
Apart from the lack of data protection regulations and implementation acting as a certain disincentive to join the sporting industry altogether, they also have been seen to affect athlete performance. Owing to a heightened concern that the general public has started displaying regarding privacy laws and data protection regimes in general, this educational psychology-oriented study revealed how the mere existence of such regulations and athletes’ awareness of the same conclusively affected their performance.
Such an actual lack, as opposed to the controlled one in the study, spells definite fundamental human rights infringements, much like the ones seen in Caster Semenya’s case and many more undocumented instances. These violations act as constant violations of athletes’ rights: a prospect considerably alarming owing to the inordinate growth of data collection in the sports Industry. Post facto violations arising from such inadequacies in protection after an athlete joins the industry hamper the overall growth by disincentivizing entry and disincentivizing the continued stay in such an area. Initiatives like Project Red Card demonstrate just that. Therefore, the fight for the protection of privacy rights and data should begin as soon as possible to ensure new talent enters the industry and ensure the retention of top talent is also made possible. We should stop chasing them away.
The author can be reached for comments on their email at parul.anand@nlujodhpur.ac.in.
Cite as: Parul Anand, Stop Chasing Them Away: Poor Privacy Rights in the Sports Industry Hampering Growth, Extra-Cover: The Sports Law Blog of India (1st May 2023), Accessed at https://www.extra-cover.org/post/stop-chasing-them-away-poor-privacy-rights-in-the-sports-industry-hampering-growth [Date of Access].