Trade Secrets: Extra Edges On The Diamond

If a company has competitors, then trade secrets — competitively valuable information (CVI) maintained in confidence — should assume a prominent role in its operations. Yes, that means that just about every company should account for and leverage its trade secrets.

Professional sports teams — quintessential competitors — typically have not been public proponents of trade secrets. That does not mean that trade secrets have not been key assets for those teams. In fact, they probably have been and are for at least two reasons.

First, professional sports teams know the value of intellectual property, as evidenced by their leagues’ and their own pronounced attention to copyrights and trademarks.

Second, 21st century professional sports teams are built to develop and use trade secrets relating to on-the-field play or off-the-field operations. They are cerebral consumers of data and advanced users of analytics and metrics (sometimes referred to as sabermetricians) and have insatiable appetites for competitive advantages.

The Wall Street Journal (WSJ) recently reported that some major league baseball teams are developing and seeking to leverage apparently new types of CVI: “The [Miami] Marlins are trying to ease the toll of air travel and improve their players’ diets. Other teams are consulting with sleep scientists to see if players’ rest habits need to change. Some teams speak only in vague terms about their efforts, fearful of publicizing any experiment that could become a competitive advantage. . . . Last season, the Seattle Mariners hired a company called Fatigue Science to collect data on players’ sleep habits. Players were given wristbands with software developed by the U.S. military to predict fatigue among pilots and soldiers based on their opportunities for sleep.” (Brian Costa, Baseball’s Fight Against Fatigue, Feb. 24, 2015 WSJ, D6.)

That CVI, i.e., experiments, analysis, metrics and resulting strategies, comprises potential trade secrets. In order to comprise actual trade secrets, the CVI has to meet certain legal requirements, including being the subject of reasonable protective measures. Whether such measures have been and are being taken is unknown. If they are not, then that is a missed opportunity.

So, what is next? Will professional sports teams take sufficient protective measures to protect their CVI as trade secrets? They should. Will employee mobility — part of the fabric of all professional sports – be too large an obstacle for teams to develop and leverage their trade secrets? It should not be. Will teams enforce or otherwise leverage their trade secrets through litigation (e.g., against a former employee and his new employer) or a license (e.g., with a team in another sport)? Time will tell. For now, and at the very least, astute professional sports teams will assess their potential trade secret portfolios and, ultimately, make sure they are doing all they can to succeed on and off the field.