By Leonardo Neri

It is known that the sports market is one of the largest, largely due to the impact its products have on the world, especially football.

In this sense, the greater the number of citizens engaged in the consumption of a given product, the greater the exposure of personal information involved in said marketing chain. And it is in this flow of data transit that the General Data Protection Law (LGPD) acts.

Furthermore, the most attractive product in the sports segment for consumers in general has been sports betting, which was approved in the country with Law No. 13,756/2018, however the legislation still lacks regulation.

As this is a highly relevant topic with recent repercussions on the national scene, the Mazzucco e Mello – Sociedade de Advogados law firm decided to start a series of articles to address the main points related to the use of data in sports betting, with the rights already regulated by the LGPD, as well as in relation to the gaps in action existing due to the lack of regulation of the Sports Betting Law.

As the subject of the first article in the series, we will address some details of how the LGPD impacts the day-to-day running of the sports betting market.

To better understand the combination of interests of legislation on the same topic – LGPD and the Sports Betting Law – it is important to clarify that the betting product impacts the analysis of data from the entire performance area of a sporting modality.

We will use the example of football to better illustrate this. Current digital platforms use player statistics, as well as team performance and historical information, to calculate probabilities of events, such as the possibility of player X scoring a goal in a match over the weekend. However, this scenario raises concerns due to data protection laws in force in several countries, such as GDPR in Europe and LGPD in Brazil. This is because players, as the owners of these statistical performance data, are often not consulted or give their consent for the use of this data by digital sports betting platforms.

Before addressing the legal issue, it is important to highlight that in this article we will focus on the analysis based on the LGPD, due to territoriality issues. Therefore, when mentioning the lack of consent from athletes for the processing of their statistical data, the suspicion arises that there may be some irregularity in this data processing flow, since the holders were not consulted about the use of their data by the sports betting platforms.

However, we must remember that the LGPD establishes other legal bases for data processing, in addition to consent, such as the legitimate interest in the processing of such data. It is precisely the legitimate interest, combined with the manifestly public nature of the statistical data produced by athletes during a match, that provides the necessary legality for the processing of such data, as analyzed in item IX of article 7 and in paragraph 4 of the same law.

Section IX of Article 7 above establishes the legitimate interest of the controller as one of the viable legal bases for data processing, which applies perfectly to the cases discussed here. Furthermore, paragraph 4 of the same article establishes that, when the data are manifestly made public by the data subjects themselves, that is, by the athletes, consent for the processing of the data is not necessary.

We can see that athletes, when participating in public events such as official football matches, are naturally subject to performance analyses based on their actions during the game. Therefore, it is impossible to argue that data arising from the performance of athletes in these games, when they can be collected simply by observation, are not considered manifestly public.

The National Data Protection Agency (ANPD) has not yet clearly stated the details of the definition of data made “manifestly public by the data subjects”. However, it is difficult to imagine a scenario in which these athlete performance data would be interpreted differently than the one presented in this article.

Furthermore, it is essential to realize that, when we talk about the use of athlete data by these digital platforms, all data is derived from the actions carried out by athletes during these notoriously public events, such as shots, passes, goals, fouls suffered and committed, among others.

In other words, the statistical data used by the platforms does not depend on any form of technology to be collected. It is not necessary for athletes to use chips or any other technological device. It is enough for someone to observe and take notes about the game, which highlights the clearly public nature of these statistical data. This proves the legality of the processing of these data, even in the absence of the consent of the holders (the athletes).

The growth of the market for digital platforms related to sports in Brazil is already evident to everyone, and it is essential to promote a public debate, with the participation of regulatory bodies, such as ANPD, to ensure the healthy and effective development of this market.