Sport – an important sandbox in our changing world
Nandan Kamath loves sport and passionately believes in its power to transform individuals, communities, nations, even the entire world. While not caught up in his lofty dreams and random thoughts, he spends his time as a Bangalore-based lawyer working with athletes, teams, federations and businesses. He is also managing trustee of GoSports Foundation, a non-profit he co-founded in 2008.
Who is male and who is female? Can technology replace judges? Where do private rights end and public interests begin? Questions like these have real consequences in our world. Legal systems and public policy struggle to keep up with the dynamism and complexity involved. Can organised sport contribute to such debates?
Competitive sport is uniquely positioned. It is a global activity with rules and a unified structure that are the same wherever a sport is played. Sports governing bodies such as the International Olympic Committee and its members enjoy a unique ‘autonomy’ – legal, political and commercial – from governments and other state actors when making their decisions. The universality and autonomy of sport have two consequences: First, rulemaking in sport must address – and resolve – any issue or debate that arises anywhere in the world, however fractious. Second, the decision making process is meant to remain independent of local or regional laws, politics and moral standards. This means that rules can look to fundamental principles of fair play, reasonableness and equity for their grounding. Sport has the opportunity to experiment and address contentious issues in ways that other domains might not.
Take the case of the South African middle distance runner Caster Semenya. Her status as an athlete with ‘differences in sexual development’ (DSD) and high testosterone levels has provoked changes in eligibility rules for athletes. World Athletics’ rules now prevent runners like her from competing in the female category of middle distance athletics events. These rules have been challenged, upheld and challenged again in different fora, including the Court of Arbitration for Sport, the Swiss Federal Tribunal and the Swiss Federal Supreme Court. The inclusion of transgender athletes in the gender category they have transitioned into has also caused confusion and consternation in the world of sport. This is especially so when it involves athletes transitioning from male to female categories. This pits values of inclusion and fairness against each other. These are hard cases, but sport has to draw a line.
The gender binary has, historically, been encoded into the design of sports competition. In most disciplines, events are separate for male and female participants. When gender is seen as a continuum, this binary is becoming increasingly difficult to implement. How these – seemingly intractable – issues are resolved is likely to influence how society as a whole responds to matters of gender fluidity. Decisions taken in sport impact societal mores and, yet, are left entirely to private sports bodies to take.
Are we ready to allow artificial intelligence into our courtrooms and judicial processes? The sport of cricket might have some lessons. Traditionally, on-field umpires were tasked with making a wide variety of decisions based on their assessment of the play. In recent decades however, TV umpires have been added to the roster of cricket officials – first, they supported on-field umpires on line-calls like run outs and stumpings but then a more full blown Decision Review System (DRS) was introduced to permit players to challenge on-field calls. Today, the DRS includes features such as ‘slow motion’ replays for line-calls, the ‘snickometer’ (audio monitoring of whether the ball has hit the edge of the bat), and ‘ball-tracking’ that provides contextual simulation of a cricket ball's expected trajectory (used, for example, to assess appeals for Leg Before Wicket dismissals). The decision making unfolds on the live broadcast for the TV umpire and viewers to watch.
We now have many years of DRS data available. What can our justice systems learn from the data? We have enough evidence to show that technology can prevent umpiring ‘howlers’, i.e., obvious errors, and increase overall confidence in the adjudication process. It also trumps the human eye in making binary line-calls like run outs, stumpings and no-balls. When technology takes on these responsibilities, on-field umpires can focus their attention on other areas they must judge. The umpires are, quite naturally, relieved when technology catches their obvious errors, though most prefer to retain some discretion – and a sense of authority – over the proceedings. The rule for overturning an umpire’s decision in close cases accepts that there might be a the margin of error in existing simulation technology. When there are small margins technology currently defers to the umpire’s human judgment. That could change rapidly with leaps in the technological prowess.
Interestingly, the inner workings of DRS technology remain an inscrutable 'black box' to viewers and participants alike. Confidence in its accuracy and reliability primarily comes from the International Cricket Council’s stamp, and its oversight of the private technology operator’s capabilities and processes. It is seemingly inevitable that the technology stack (especially, artificial intelligence and analytics) is going to play an important role in the delivery of justice. How much can technology contribute to the adjudication of disputes? Cricket umpiring provides us a ready laboratory to test – and shape – the rules of engagement, public trust and our perceptions about fair process.
During the Tokyo 2020 Olympic Games, the archery event integrated live heart rate data of the competing archers into the television broadcast. You could see the highs and lows as athletes won, lost, struggled, held their nerve and overcame. This was an unprecedented public display of the inner life of an athlete. World Archery officials described the live heart rate broadcast as an attempt to give the television spectator the feeling of stress, which was not only felt by the athlete but was also palpable to those watching the event on-site.
World Archery’s use of athletes’ biometric data to design a compelling broadcast is not essential to the sport’s game play. It is part of the theatre of sport. Is it necessary, fair and legitimate?
At Tokyo, instead of attaching wearable trackers to athletes, World Archery used high-frame-rate cameras that can detect changes in the skin colour of the athlete, the shape and colour of their face and the position of their pupils to determine archers’ heart rate. Thanks to a combination of artificial intelligence, behavioural data and image technology, what was previously in the category of invasive data became observable data. This meant that the athlete’s consent was not functionally required for data collection (though, in this case, athlete consent was taken in advance by World Archery). Are all data that we can capture fair game for processing? Are there lines that we should not cross? Where do privacy rights end and where does legitimate interest begin? With the commercialization and technologization of competitive sport, the field of play is ripe for more such questions to be asked, and answered.
The decisions made in sport resonate not only through playing fields around the world but also cascade through society at large. What happens in sport is important to us all. Watch this space!
Boundary Lab by Nandan Kamath was published by Penguin Viking in March 2024. More information about the book is available at http://www.boundarylab.plus