Competition Law and Athlete Data Ownership and Competition

1. Introduction

Athlete data ownership and competition concerns the interaction between sports data, intellectual-property rights, privacy interests, contractual rights, and competition law.

Modern professional sport generates enormous quantities of commercially valuable data, including:

player statistics;

performance metrics;

biometric information;

GPS and tracking data;

heart-rate information;

injury and rehabilitation information;

tactical data;

video and positional data;

betting-related information;

player identity and profile data;

social-media engagement data; and

commercially generated fan data.

The competition-law problem arises when one organisation obtains exclusive control over strategically important athlete data and uses that control to prevent rival businesses from accessing or exploiting the information.

A crucial distinction must be made between ownership of data and control over data. Data may be subject to contractual rights, database rights, copyright, privacy law, employment agreements, confidentiality obligations or other legal interests without there being a single universal legal concept of "data ownership."

2. Why Athlete Data Has Competitive Value

Athlete data can be an essential input into several markets.

For example:

Athlete performance data → sports analytics

Athlete tracking data → broadcasting

Athlete statistics → fantasy sports

Athlete information → sports betting

Athlete profiles → sponsorship and advertising

Athlete biometric information → sports technology

Athlete video data → media and broadcasting

Consequently, control over athlete data can potentially create market power in downstream markets.

3. Relevant Markets

Competition authorities must first identify the relevant market.

Possible markets include:

A. Official sports-data market

Companies collect and distribute official statistics.

B. Live sports-data market

Real-time information is supplied to:

broadcasters;

betting operators;

fantasy-sports platforms;

analytics companies.

C. Sports analytics market

Companies provide performance-analysis services to clubs and athletes.

D. Sports broadcasting market

Data may complement audiovisual broadcasting rights.

E. Sports betting information market

Real-time data may be commercially important for betting operators.

F. Athlete-performance technology

Companies may compete using:

wearable technology;

GPS tracking;

biometric analysis;

AI performance systems.

The relevant market depends upon substitutability and competitive conditions.

4. Athlete Data Ownership

There may be several competing interests in the same data.

For example:

Athlete

may have privacy and personality-related interests.

Club

may have contractual or employment-related rights.

League

may control official competition statistics.

Federation

may control competition organisation and official records.

Data company

may have contractual rights to collect and commercialise information.

Broadcaster

may possess audiovisual rights.

Therefore, the statement "the athlete owns the data" may be legally inaccurate without examining the applicable law and contracts.

5. Competition Law Is Concerned With Control, Not Merely Ownership

Competition authorities are generally concerned with whether an undertaking possesses and exercises market power.

Thus, the important question may be:

Who controls access to commercially indispensable athlete data?

rather than simply:

Who legally owns the data?

A league could potentially exercise substantial competitive power even if individual athletes have personal interests in information relating to them.

6. Exclusive Data Rights

Suppose a sports federation grants one company exclusive rights to collect and distribute real-time athlete data.

If competing data companies cannot obtain equivalent information, the exclusive arrangement could potentially raise competition concerns.

The analysis would consider:

duration;

market coverage;

exclusivity;

alternatives;

barriers to entry;

importance of the data;

foreclosure effects.

7. Refusal to Supply Athlete Data

A dominant data provider may refuse to provide athlete information to competitors.

Potential examples include refusal to supply:

live statistics;

player-tracking data;

performance information;

official results;

historical databases.

A refusal is not automatically unlawful.

Competition law generally requires additional conditions before imposing access obligations, particularly where the information constitutes protected intellectual property or was developed through investment.

The Bronner and IMS Health principles are therefore relevant.

8. Essential Facility Considerations

Athlete data could potentially become an essential input in a downstream market.

For example, suppose:

one company controls official real-time match data;

betting operators cannot obtain equivalent information elsewhere;

customers require real-time data;

access is technically and economically indispensable.

The question could arise whether withholding access constitutes exclusionary conduct.

However, the high threshold traditionally associated with compulsory access must be carefully considered.

9. Data Exclusivity and Foreclosure

A league could enter into an exclusive agreement covering all official athlete data for ten years.

The agreement could potentially prevent:

competing analytics firms;

fantasy-sports providers;

broadcasters;

betting-data companies.

from obtaining comparable information.

This could constitute a foreclosure concern where the agreement materially restricts competitive access to an important input.

10. Collective Control by Sports Leagues

Professional sports leagues present a distinctive competition problem.

Individual clubs are competitors on the sporting field but may cooperate commercially through a league.

The league may collectively control:

competition schedules;

official statistics;

broadcasting;

licensing;

player information.

Competition law may therefore need to distinguish:

legitimate sporting cooperation

from

commercial arrangements that unnecessarily restrict competition.

11. Sports Leagues as Economic Undertakings

Sports governing bodies can engage in economic activities.

Where they commercially exploit:

broadcasting rights;

licensing;

data;

sponsorship;

merchandising,

competition law may apply to those activities.

The fact that an organisation has sporting or regulatory functions does not necessarily place its commercial conduct outside competition law.

12. Collective Selling of Data

Suppose 20 clubs individually possess player information but collectively agree that only one company may commercialise it.

The arrangement may raise issues under competition rules concerning agreements between competitors.

Potential concerns include:

collective exclusivity;

price fixing;

market allocation;

output restriction;

foreclosure.

The precise legal assessment depends upon the structure and justification of the arrangement.

13. Article 101 TFEU

Under EU competition law, Article 101 TFEU addresses agreements and concerted practices that restrict competition.

Athlete-data arrangements could potentially involve:

collective licensing;

joint data sales;

exclusive distribution;

coordinated pricing;

restrictions on downstream access.

The fact that the agreement concerns sports data does not automatically remove it from Article 101.

14. Article 102 TFEU

Article 102 TFEU becomes relevant where an undertaking holds a dominant position and engages in abusive conduct.

Potential examples include:

discriminatory access;

refusal to supply;

excessive pricing;

tying;

exclusive arrangements;

self-preferencing;

leveraging.

A dominant sports-data provider could potentially use control over athlete information to extend its market power into related markets.

15. Athlete Data and Intellectual Property

Athlete databases may involve:

copyright;

database rights;

trade secrets;

contractual rights.

Competition law does not generally eliminate intellectual-property rights.

However, intellectual-property rights may become relevant to competition law when they are used to exclude competitors.

This creates a balance between:

protecting investment and innovation

and

preserving competitive access.

16. Data Quality and Competitive Advantage

Not all athlete data are equivalent.

A provider might possess:

real-time information;

historical information;

highly granular tracking;

verified statistics;

biometric measurements.

Superior quality can create a legitimate competitive advantage.

Competition concerns become stronger where the provider uses contractual or technical restrictions to prevent competitors from obtaining or developing alternatives.

17. Athlete Biometric Data

Biometric information raises an additional dimension.

Examples include:

heart rate;

body temperature;

movement patterns;

acceleration;

fatigue indicators;

injury information.

Such information can be commercially valuable but also highly sensitive.

Competition law must therefore coexist with privacy and data-protection rules.

A competition remedy requiring unrestricted disclosure of sensitive athlete data could itself create privacy and security problems.

18. Data Portability

Athletes may potentially change:

clubs;

leagues;

agents;

training providers;

sports-technology platforms.

If their performance history remains trapped within one technological ecosystem, switching may become difficult.

Data portability could therefore promote competition where technically and legally appropriate.

However, portability obligations should distinguish between:

personal athlete information;

club-generated information;

league statistics;

proprietary analytical models.

19. Athlete Switching Costs

Suppose an athlete has accumulated years of performance data on Platform A.

If Platform A prevents transfer to Platform B, the athlete may face:

loss of historical records;

loss of performance analytics;

disruption of training;

additional costs.

These switching costs can strengthen platform power.

20. Self-Preferencing

A sports-data company might operate both:

a data platform

and

its own analytics service.

It could give its affiliated analytics business:

earlier access;

greater data granularity;

lower prices;

preferential API access.

This could potentially disadvantage independent analytics companies.

The principles examined in Google Shopping may be relevant to the analysis.

21. Tying

A dominant provider could potentially require customers purchasing athlete data to also purchase its:

analytics software;

betting interface;

cloud services;

advertising services.

Where the relevant legal conditions are satisfied, tying could constitute an abuse of dominance.

22. Discriminatory Pricing

A dominant athlete-data provider could potentially charge:

affiliated companies lower prices;

independent firms higher prices.

Discrimination becomes particularly significant where it disadvantages competitors operating downstream.

Authorities would need to determine whether the differences have exclusionary effects and whether there are objective justifications.

23. Excessive Pricing

Exclusive control over official athlete data could theoretically create opportunities for excessive pricing.

For example, if a sports-data monopoly charges downstream operators extremely high licensing fees, competition authorities may examine whether the pricing constitutes abusive exploitation where the jurisdiction recognises such a doctrine.

However, excessive-pricing cases are generally complex and require careful economic analysis.

24. Athlete Data and Betting Markets

Sports betting creates particularly strong incentives to control data.

Real-time data can determine:

betting markets;

odds;

settlement;

in-play betting.

If one provider controls official real-time data, betting operators may become dependent upon it.

This can potentially create:

upstream data dominance → downstream betting dependence.

25. Athlete Data and Fantasy Sports

Fantasy sports platforms may also depend upon:

player statistics;

goals;

assists;

minutes played;

cards;

substitutions;

performance metrics.

If one undertaking controls those statistics and refuses access to competitors, competition concerns may arise depending upon market structure and legal standards.

26. Key Case Law

1. Magill

Joined Cases C-241/91 P and C-242/91 P, RTE and ITP v Commission

The Court considered refusal to license copyrighted television listings.

Relevance

The case is important for situations where a protected information resource is controlled by one undertaking and competitors require access to compete in a downstream market.

Athlete-data rights could raise analogous questions where legally protected information becomes commercially indispensable.

27. IMS Health

Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG

The Court considered refusal to license an intellectual-property-related structure.

Relevance

An athlete-data database may receive legal protection.

The case demonstrates that intellectual-property protection and competition law can coexist, while exceptional circumstances may justify competition-law intervention.

28. Bronner

Case C-7/97, Oscar Bronner GmbH & Co. KG v Mediaprint

The case concerned access to a distribution infrastructure controlled by another undertaking.

Relevance

If a sports-data provider argues that its information infrastructure should remain exclusive, Bronner provides important principles for assessing whether compulsory access is justified.

29. MOTOE

Case C-49/07, Motosykletistiki Omospondia Ellados NPID v Elliniko Dimosio

The Court considered the interaction between sporting regulatory functions and competition law.

Relevance

Sports organisations can sometimes combine regulatory authority with commercial interests.

This is highly relevant where a federation:

regulates sporting competitions;

controls official athlete information; and

commercially licenses that information.

Competition law may need to examine whether that combined position creates conflicts capable of restricting competition.

30. International Skating Union v Commission

Case T-93/18, International Skating Union v Commission

The General Court considered restrictions imposed by the International Skating Union concerning athletes' participation in competing events.

Relevance

The case demonstrates how rules adopted by sports governing bodies can have competition-law implications when they restrict athletes' economic opportunities or competing sporting activities.

Its broader significance for athlete data lies in showing that sporting rules cannot automatically be insulated from competition-law scrutiny merely because they originate within a sporting federation.

31. European Superleague Company v Commission

Case C-680/21, European Superleague Company v UEFA and FIFA

The Court of Justice considered the application of EU competition law to rules adopted by sports governing organisations concerning competing competitions.

Relevance

The judgment is important for analysing the relationship between:

sports governance;

economic activity;

market access;

regulatory authority; and

competition.

Similar questions could arise where a sports governing body controls access to commercially important athlete-data markets.

32. Piau

Case C-171/05 P, Laurent Piau v Commission

The case concerned regulations governing football agents and their competitive implications.

Relevance

It illustrates that regulations within professional sport can fall within competition-law analysis when they affect economic activity.

Athlete-data rules could similarly require scrutiny where they materially affect commercial access to data markets.

33. Google Shopping

Case T-612/17, Google and Alphabet v Commission

The case concerned the treatment of Google's own service within its search ecosystem.

Relevance to athlete data

A dominant sports-data platform that operates its own analytics or fantasy-sports service could potentially favour its own downstream service.

The case therefore provides useful analytical guidance for self-preferencing concerns.

34. Microsoft

Case T-201/04, Microsoft Corp v Commission

The case addressed interoperability and tying.

Relevance to athlete data

Suppose a dominant sports-data platform prevents independent analytics software from interoperating with its database or requires users to adopt its own analytics product.

The principles in Microsoft may become relevant.

35. United Brands

Case 27/76, United Brands Company and United Brands Continentaal BV v Commission

The Court addressed dominance and economic power.

Relevance

A sports-data undertaking controlling a substantial share of official athlete information could be assessed according to its ability to act independently of customers and competitors.

36. Competition Law and Athlete Bargaining Power

Athletes themselves may also possess economically significant bargaining power.

Elite athletes can generate valuable:

broadcasting audiences;

sponsorship;

merchandise;

social-media engagement;

licensing opportunities.

Competition issues may therefore arise where clubs, leagues, data companies and athletes negotiate collectively.

The analysis must distinguish legitimate collective bargaining from arrangements that unnecessarily restrict competition.

37. Athlete Data and Labour Markets

Athlete data may influence the labour market.

Clubs may use:

performance analytics;

injury information;

biometric indicators;

predictive models.

If one data provider supplies almost all clubs, athletes may become subject to a common information infrastructure.

This could affect:

recruitment;

wages;

contract negotiations;

transfers;

selection.

The relationship between competition in product markets and competition in labour markets is therefore increasingly important.

38. Data Sharing Between Clubs

Suppose competing clubs agree to share detailed athlete information.

Potential benefits include:

injury prevention;

athlete safety;

standardised statistics.

But extensive sharing of commercially sensitive information could potentially reduce competition between clubs.

For example, information concerning:

player valuations;

contract strategies;

wage expectations;

transfer intentions

could become competitively sensitive.

The legality would depend upon what information is shared, why it is shared, who receives it and its effects.

39. Remedies

Potential competition remedies could include:

Non-discriminatory licensing

Competitors receive data under equivalent conditions.

Interoperability

Data platforms must support technical compatibility.

Data portability

Athletes or authorised users can transfer relevant data.

Limits on exclusivity

Exclusive arrangements may be limited where they produce substantial foreclosure.

Separation

In extreme circumstances, data collection and downstream commercial activities might be separated.

Transparency

Clear rules may govern:

data access;

licensing;

pricing;

eligibility.

40. Balancing Competition With Athlete Rights

Competition remedies must not disregard legitimate interests in:

privacy;

confidentiality;

health information;

biometric security;

intellectual property;

athlete welfare.

Therefore, competition law should not be interpreted as creating an unrestricted right to commercialise every piece of athlete information.

The objective is to prevent unjustified foreclosure while respecting legitimate rights.

41. Important Legal Questions

A competition investigation concerning athlete data should ask:

Who controls the data?

What legal rights exist over it?

Is the data commercially indispensable?

What is the relevant market?

Is the controller dominant?

Are competitors able to obtain substitutes?

Is access exclusive?

Does the arrangement foreclose competitors?

Does the provider compete downstream?

Is there self-preferencing?

Are prices discriminatory?

Is there a legitimate sporting justification?

Are privacy concerns involved?

Would access obligations undermine investment?

What remedy would preserve both competition and legitimate data rights?

42. Conclusion

Athlete data is increasingly an economically important competitive asset. Its importance extends beyond sporting statistics to broadcasting, betting, fantasy sports, analytics, sponsorship, recruitment and sports technology.

The central competition-law problem arises where control over athlete data creates or reinforces market power and is used to exclude competing undertakings.

The principal issues include:

exclusive data licensing;

refusal to supply;

essential-facility questions;

collective commercialisation by leagues;

self-preferencing;

discriminatory access;

tying;

excessive pricing;

interoperability;

data portability;

vertical integration; and

control over downstream sports markets.

The cases of Magill, IMS Health, Bronner, MOTOE, International Skating Union, European Superleague, Piau, Google Shopping, Microsoft and United Brands provide important legal principles for analysing these issues.

Ultimately, athlete-data competition requires a careful balance between competitive access, incentives to invest in data collection, intellectual-property protection, sporting autonomy, athlete privacy and the prevention of exclusionary market power.