Sports wearables: A look at the commercial and legal issues behind Australian Open ban

Sports wearables: A look at the commercial and legal issues behind Australian Open ban

Top tennis players, including Jannik Sinner and Carlos Alcaraz, were recently asked to remove fitness trackers before their Australian Open matches, drawing attention to the increasingly complex relationship between elite sport, data and technology. Health analytical devices, known as 'wearables', are not currently permitted at Grand Slam tournaments. 

Whilst it is not currently clear why players are unable to wear such devices when competing, the situation brings into focus a number of talking points that highlight the legal and commercial considerations that athletes, brands, rightsholders, agents and professional advisers are often navigating.

The rightsholder

As we have previously explored, rightsholders such as Tennis Australia have to be careful when seeking to maximise commercial revenue – either through licensing broadcast rights or through commercial partnerships – that they protect their own attractive product from reputational and/or commercial damage, however it comes about. A likely explanation for this wearables ban is that Tennis Australia, and indeed the other Grand Slams, are prioritising the protection of their commercial partners’ rights and interests. This seems reasonable: for instance, if players begin collecting their own in‑match data through personal devices, it risks diminishing the commercial value of the data produced by these official partners. The Australian Open has an existing partnership with Bolt 6 which operates the Electronic Line Calling system using ball-tracking technology. It is conceivable that as part of the likely exclusive sponsorship agreement between the parties, provisions exist that restrict the tournament from in some way displaying a defined or undefined 'competing' products that could be used to undermine the purpose of Bolt 6's tie-in. Whether the data collected by such wearables could really be seen to be in competition with ball-tracking technology is another question.

The athletes and the brands

From the other side of the court, WHOOP and other fitness tracking brands, meanwhile, have their own commercial incentives tied to the player-generated data of those they sponsor. WHOOP's partnership with women's world number one Aryna Sabalenka, who was also told to remove her device earlier in the tournament, has included utilising insights captured during her matches to market the brand and promote its ability to improve athletic performance. Typically an athlete will negotiate a carve out in a sponsorship/endorsement contract to ensure they are not in breach of their obligations to wear the brand's product or otherwise promote it during competition where they are prevented from doing so by the relevant governing body. Such a scenario becoming a reality will, whilst necessary protecting the athlete, understandably rankle with brands whose devices collect personal data, who argue that the athlete is collecting personal data for their own personal use and development as a sportsperson. A brand's position is often that any commercial benefit they derive is (presumably in the case of Sabalenka) limited to anonymised insights derived from product use and as such does not materially impact on other commercial deals.

The agents and the professional advisers

Agents, accountants and lawyers are nowadays integral parts of the commercial exploitation and licensing process. Agents in particular are almost an extension of the athlete, seeking out the right opportunities for the clients. When it comes to negotiating these deals, lawyers are often asked to wade in not just on the legal risks (such as the examples given above) but also how likely those risks are to arise in the commercial reality. 

For Tennis Australia, it is entirely possible that prohibiting wearables represented a low risk of becoming a major news item. The opposite has been the case and it has become clear that balancing important commercial interests is key to building a cohesive framework for wearable technology in tennis and other sports. For now, though, as stated by Sinner, 'rules are rules'.