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Do players have a right over their performance data that betting companies use to educate punters or online fantasy league put out to help gamers pick their teams?

While Virat Kohli doesn’t have ownership of his run-scoring wagon wheel or his head-to-head record against an opposition bowler but footballers in the UK are pushing the envelope and claiming their right over their numbers.

A group of current and former footballers – over 400 in number – are set to file a lawsuit over the use of their performance data. The main point of contention for the players – many of them from the Premier League – is that betting and gaming companies have not sought their consent. Together, they’ve signed up for ‘Project Red Card’ – a term coined to represent the lawsuit.

The project is handled by former Cardiff City manager Russell Slade’s company Global Sports Data and Technology Group (GSDT), in collaboration with ELIAS Partnership.

“The data in question is the performance data. It’s the sort of thing that lot of data companies are using to inform other companies – betting companies or gaming companies – to make odds or create games, and it’s different to image rights,” Richard Dutton, director of UK-based legal advisory firm ELIAS Partnership said.

To explain his point, Dutton takes cricket’s example. “Now let’s take Jofra Archer. We can say he uses the same run-up to bowl at 95 mph, 90, and even a slower ball at 75. Maybe you’ll notice that his fifth ball is usually the slower one. All of this data is personal performance – tracking data. Lots of companies are using that and helping better understand how many boundaries are going to be scored or how many wickets will be taken,” he says.

There is a fundamental difference between a viewer or spectator watching the game at a stadium or on television and collecting data, and it being compiled to be sold to help punters make informed decisions.

“There is nothing to stop you as an individual from making notes, doing your own research about a player. That’s absolutely fine. But it’s fundamentally different if you were to sell that data,” Dutton explains.

“When you collect that data, it’s potentially your hobby, which is fine. But when you start making money from that data, that’s where the issue lies. It’s a bit like you borrow someone’s car saying you need to go buy groceries, but then you use it as a taxi service and make money from it. It’s the same principle.”

Project Red Card’s argument falls under the General Data Protection Regulation (GDPR), which has been formed by the European Union, and the Data Protection Act of 2018 in the United Kingdom.

But the question does arise that since there are several companies that pay clubs and associations for image rights, do players also need to be paid for use of their data.

“Individuals don’t own data, what they have are data rights,” says Dutton. “What’s happened here is the players’ data rights have been misused. That is the principle behind it. What we’re suggesting is that those data rights have been used unlawfully because they haven’t been provided the consent.”

The other issue players face is that the data collected can be frequently inaccurate.

“There are some very interesting videos of English professional footballers trying to guess what their performance rating is for some of these games. They all have been given ratings for their speed, shooting accuracy, passing accuracy, fitness, and everything like that,” says Dutton.

“Sometimes even their height. A lot of times some of these companies that provide these statistics send people to football grounds and stadia. They key in and send back to the head office in-game statistics. The clubs try to make sure that doesn’t happen. But evidentially, when you’re doing it that way there’s going to be inaccurate data collected.”

In an interview with the BBC, Slade explains the ramifications a player could face due to incorrect information.

“We have found that the (in)accuracy of data is staggering, most of the players on board have wrong data stored,” he states. “I’ve had a centre-back where on one platform his height was down as 5’7”. That wouldn’t be an issue over here (UK) as people would know who he is, but that could have been an issue getting a job abroad.”

There’s also a clear distinction between image rights and data rights.

“Image rights are used for promotion. Virgil van Dijk has his face on a product to help sell the product. Data rights are very different. It’s the performance data,” he added.

Project Red Card is “cautiously optimistic” about a result in court that will grant players remuneration to the tune of ‘hundreds of millions of pounds’, according to The Athletic.

In the meantime though, GSDT and ELIAS Partnership have formed the Player Privacy Rights International (PPRI).

“It’s a data rights company with the purpose of protecting the data rights of sportsmen and women,” Dutton says. “That’s the joint venture we’ve created. One of our objectives is to work with law firms to litigate historic misuse of players’ data.”

In the United Kingdom, based on the GDPR and Data Protection Act, Dutton asserts there is a strong case for Project Red Card. Technology news website Engadget, however, likens this case to the one fought between Major League Baseball (MLB) and CBC Distribution in 2006.

“CBC operated a fantasy league that took player names and stats from baseball games,” according to the website. “MLB sued, saying that player names and the facts of each game were copyrighted, but lost. A federal court found that these statistics were true events that happened, and as such, were in the public domain.”

Based on privacy regulations, however, The Athletic reported that the Project is hopeful of winning an initial settlement by next year, and eventually hopes for each player to be reimbursed tens of thousands of pounds.

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