FERPA Athlete Case Studies Reveal Gaps

TL;DR

FERPA was enacted long before innovative tech and data analytics were used by college sports performance teams. Athletic departments and universities must diligently protect athlete data they collect or risk legal claims from athletes and data collection partners

In college athletics, university sports performance teams collect and analyze athlete health and performance data. In recent years, Athletic Departments have increased their efforts to collect athlete data and leverage data analytics to reveal the best coaching and training regimens to help athletes and teams perform better. Data collection tools include traditional health, injury, and performance information plus assessments of athlete intelligence and emotional intelligence, as well as performance data like biometric, biomechanical, and tracking data. Consequently, today's athletes and teams have valuable insights to play at a higher level. And in today's college semi-pro model, high-performance equals big revenues for top university athletics programs and their universities.

But in this age of sophisticated data collection tools, analytics, and elite athleticism, concerns about data privacy are growing. Athlete data is now collected from sensors, video, and other sources rather than the human eye or health assessments. Skeletal tracking and digital twin capabilities, for example, increase the amount of granular data that is collected from an athlete without being physically invasive or requiring the athlete to be aware that data is being collected. Innovations like these - along with data privacy laws - raise questions about the impact on athlete privacy and university risk.

Scholarship Highlights FERPA's Limitations

The latest scholarship regarding FERPA compliance in the context of athlete health and performance data is drawn from legal, ethical, and sports performance literature.

FERPA (Family Educational Rights and Privacy Act) was enacted to protect the privacy of student education records, including health-related information in many cases. However, the evolving landscape of athlete biometric tracking, wearable technologies, and performance analytics has exposed significant gaps in FERPA’s applicability, especially when intersecting with HIPAA, third-party tech vendors, and coaches' access to sensitive data.

Key concerns include:

• Whether athlete biometric and health data falls under FERPA or HIPAA

• How universities and athletic departments handle consent and data sharing

• Emerging issues around forced waivers, wearable tech mandates, and monetization of athlete data

Key Issues & Themes

Theme	Summary
FERPA vs HIPAA	Student-athlete data may be covered under either law, depending on the source of collection. Conflicts often arise when athletic departments share data with healthcare providers and others.
Wearables & Biometric Data	Tools like GPS trackers, heart-rate monitors, sleep trackers, wearable devices, and other sensor-tech data collection tools that collect biometrics, biomechanical, performance and other sensitive data not fully protected under FERPA.
Consent & Pressure	Athletes often feel pressured to consent to data sharing as a condition of play. Athletes generally do not know about all the data being collected from them, who has access to it, and how it may be used. “Voluntary” agreements may not be truly voluntary.
Commercial Use of Data	Concerns are growing about tech vendors and sponsors monetizing data, sometimes without informed consent.
FERPA Enforcement	Many scholars argue FERPA lacks strong enforcement mechanisms, creating compliance gaps at universities.

Conclusion

Athletic performance data, while immensely valuable for competitive and medical purposes, exists in a legal gray zone when it comes to FERPA. Current laws are inadequate to fully protect college athlete privacy in the age of data-driven sports. Athletes must be better informed about data that is collected on them, the purposes for collection, and how their data will be used. Broad disclosures of data collection once per semester are inadequate. Regulatory updates or specific college sports guidelines may be required to close the compliance and ethical gaps. in the meantime, universities should adopt clear athlete data privacy programs to promote compliance with today's patchwork of privacy requirements and implement best practices specific to college athletes who are also public figures, anticipating the additional innovations, regulations, and athlete data uses to come.

#FERPA #CollegeSports #NCAA #DataRights #Athletes