Academic journal article Washington and Lee Law Review

Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports

Academic journal article Washington and Lee Law Review

Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports

Article excerpt

Table of Contents

I. Introduction.1568

II. Propriety Information in the Professional Sports Industry.1571

III. The Law of Trade Secrets in the United States and Canada.1581

A. United States.1581

1. Uniform Trade Secrets Act.1583

a. Existence of a Trade Secret.1584

2. Non-Disclosure Agreements.1586

3. Non-Compete Agreements.1588

a. Misappropriation or Acquiring a Trade Secret by Improper Means.1592

4. Economic Espionage Act.1594

5. Defend Trade Secrets Act.1597

B. Canada.1599

IV. Survey Methodology and Results.1601

A. Survey Methodology.1602

B. Survey Results.1603

V. Implications and Suggestions for Future Research .1616

VI. Conclusion.1622

I. Introduction

Seal up your lips, and give no words but mum:

The business asketh silent secrecy.

-Shakespeare1

A veil of secrecy has descended over sports unlike anything the industry has ever seen.

-Matthew Futterman2

Society is currently in the midst of a "big data" revolution.3 Across wide swaths of the economy, businesses are increasingly marshalling previously unimaginable amounts of data to derive valuable new insights in fields as diverse as health care,4 financial services, 5 and transportation. 6 Indeed, through the use of data analytics, firms can more efficiently "anticipate future needs and concerns, plan strategically, avoid loss, and manage risk," all for the betterment of the bottom-line.7

Nowhere has this big data revolution played out more publicly-or, perhaps, more prominently-than in the professional sports industry. Every day, millions of sports fans are exposed to countless new and ever more sophisticated statistics while watching their favorite teams play.8 Meanwhile, behind the scenes, teams in all four major North American professional sports leagues9 are increasingly using statistical and data analysis to not only formulate in-game strategy, but also to evaluate their players' on-field performance, physical health, and even psychological make-up.10

Despite the growing importance of big data in the modern economy, however, surprisingly little is known about the specific manner in which firms-either in the professional sports industry or the economy at-large-protect their proprietary information. Because methods of data analysis are most commonly protected under the law of trade secrecy,11 and because trade secrets generally lose their legal protection if they are disclosed publicly,12 firms have traditionally been understandably reluctant to discuss either the types of trade secrets they possess, or the steps that they are taking to protect this information.13

This Article aims to help fill this void in the existing literature by presenting freshly-collected data from the professional team sports industry regarding both the types of information being subjected to trade secret protection, as well as the manner in which those secrets are being guarded. Drawing upon the results of a survey recently conducted of the general counsels of teams belonging to the four major North American professional sports leagues, this Article sheds new light on the scope of trade secret protection in the modern economy, as well as the steps that these firms are taking to shield their increasingly valuable, but highly sensitive, information.

The Article proceeds in four parts. Part II briefly summarizes the historical evolution of statistical and data analysis in the professional sports industry, describing the various forms of proprietary information that a modern-day sports team may possess.14 Part III follows by offering an overview of the law of trade secrets in both the United States and Canada.15 Part IV then presents our survey methodology and results, providing novel empirical data regarding the manner in which North American professional sports teams are asserting and protecting their rights under trade secrecy law. …

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