The prospective sports consumer of the near future has settled into his seat ten minutes into an otherwise uninspiring midweek game. Traffic was wretched, the visiting team not worth the speeding citation.

A $16 snack on his lap, a $12 beer in the holder, he checks the score and notes the players angling toward his end of the arena as he draws a smartphone from his jacket.

A few taps bring him to his app of choice. A few swipes cue up the game before him as digested by the world beyond this downtown arena. Another swipe immerses him in the augmented entertainment reality that legalized sports betting has borne.

So many choices.

Next player to score. Boring.

Next to shoot? Too random.

And then, he’s on to something interesting. Interesting for bettors, but among the more worrisome aspects of legalized sports betting and professional leagues’ embrace of it as a revenue stream: the collection and dissemination of advanced player data, including so-called biometrics, as fodder for betting markets.

“Some people envision that someday people are going to be betting on biometric data,” a source requesting anonymity told Gambling.com. “You know, what is [Alexander] Ovechkin’s heart rate going to be right before or right after he scored a goal?

“On one hand, personally, I think we’re a ways before we get to that point. But it’s in sight.”

Legality, Ethics, Business Await Guidance in ‘Wild, Wild West’

The example is possibly far enough to the edge of current morality and technological boundaries to not be pressing. Professional sports leagues and gambling interests have more immediate priorities following the repeal of the Professional and Amateur Sports Protection Act.

But in a global sports betting market worth as much as $40 billion annually, it will eventually become a major topic. And given the way that sports and wagering enterprises are impacting the other in a society in which personal information is rapidly – by choice or the consequence of convenience – becoming public domain, it is not implausible that bettors could find it not only acceptable but entertaining to wager on pulse rates or testosterone levels.

At the legal, ethical and mercantile nexus of all of it is biometrics, which is understood as the biological and behavioral characteristics that identify an individual. That can include everything from fingerprints to retinal structure to pulse. It can be used for security, or business. Or perhaps, entertainment.

With case law yet to catch up to technological capability and billions in play for sports leagues and sportsbooks, an athlete is likely to lose their rights as a private individual before clarity is attained, Barbara Osborne, J.D. Professor, Exercise and Sport Science and an adjunct professor at the University of North Carolina law school told Gambling.com.

“This is literally the wild, Wild West,” said Osborne, who co-authored a 2017 Marquette Sports Law Review paper entitled ‘Legal and Ethical Implications of Athletes,’ Biometric Data Collection in Professional Sport.’ “We have no idea what’s going to happen until it happens and then we’ll be scrambling to fix it.”

The athlete, Osborne stressed “is the loser once their physical privacy has been completely obliterated.”

“You have to have law in order for precedent to be set,” she said. “And I think that basically there’ll probably be some landmark scandal which will crystallize things and I’m guessing somebody will have to be a victim in some way for people to stand up and pay attention and say, ‘That’s not right.’”

Pro Athletes Gaze Wary Eye at Their Heart Rates

Professional athletes consider their health data a last bastion of privacy even as they live and perform in an ever-widening public domain.

Clarence Nesbitt, general counsel of the National Basketball Players Association, said during a Nov. 15 hearing on sports betting that National Basketball Association players consider biometric information “our data” and not something to be collectively bargained over with management.

“[We] would like some legislation clarifying that between us and the league. That is not yet a settled matter,” he said. “But with these new forms of data and these new data streams, we would think player consent is necessary. And the best way to make sure that voice is heard is by giving us ownership of that data.”

Nesbitt said he preferred federal, but accept state-level, legislation to settle the matter because of “the risk that some valuable ownership right like that could potentially be lost in collective bargaining.”

“Remember,” he added, “it’s bargaining, so you have to give something to get something.”

Casey Schwab, vice president of business and legal affairs for the NFL Players Association concurred, asserting that “our players own their data. So, one side of it is protecting the privacy of our players’ data. The other side of that coin is consent, which sometimes comes along with commercial opportunities.”

Schwab said the last NFL collective bargaining agreement didn’t and couldn’t have accounted for advances in sports technology.

“In 2010, when that was being negotiated, nobody was thinking about compression shorts that can track your rate increase in your metabolism or metabolic rate,” he said. “Right now, we’re thinking about those things, and it, of course is relevant for betting, but it’s also for media. You see SportRadar sells this data out of the market and it’s not just for betting. It’s for media and content.”