Esports: Fixing a regulatory loophole

For anyone who (still) does not know what esports stands for, it can be defined as playing multiplayer video games competitively for a prize money or a reward. Video games such as League of Legends, FIFA or CS:GO are amongst the most famous (and most profitable) of the kind. To give the reader an idea of how esports are thriving all around the world, know that the finals of the League of Legends World Championships of 2018 reached a peak of 200 million concurrent viewers, surpassing the peak viewership of several sports events, including the Super Bowl.

The idea that esports constitutes an emergent growing industry is already an undeniable understatement. However, the development of this area has not been duly accompanied by the expansion and maturing of regulations able to successfully unify the sport. This article intends to shed light on some of these issues, pointing at some possible ways to tackle them.

The problem of recognition

Esports' first and arguably biggest problem is related with its recognition as a sport. This debate is built under three different layers, all led by different protagonists in the sports world.

The first current of thought is led by the average human being. The debate at this stage tends to focus on the perception that people have of esports, compared with the more conventional sports. Let us take a look at some given definitions. Cambridge dictionary defines ‘Sport’ as “a game or activity that people do to keep healthy or for enjoyment, often competing against each other.” Oxford dictionary describe ‘Sport’ as an “activity that you do for pleasure and that needs physical effort or skill, usually done in a special area and according to fixed rules.”

Some people argue that due to the lack of raw and direct physical competitiveness, esports is closer to gaming and leisure than to an actual sporting activity. There are two problems with this line of thought: first of all, esports is indeed a physical activity. Esports athletes sweat, develop a range of musculoskeletal injuries such as tendonitis in the forearms, carpal tunnel syndrome, ‘tennis elbow’ and shoulder stiffness, experience heavy levels of eye strain and fatigue, have specific waking up hours, training schedules and a complete diet, etc; secondly, even if one sees esports as a non-physical activity, what’s to make of chess, a sport recognized as such by the International Olympic Committee (hereafter referred to as ‘IOC’) since the year 2000? Furthermore, if taken into account every identifying marker of a typical sport, such as training, competition, salary, sponsorship, diet, strategy, spectators, they can all be seen in esports.

Rather surprisingly and still regarding ‘Sport’ definitions, SportAccord comes up with the least accurate one. SportAccord is, according to article 1.1. of its statutes, is “previously known as GAISF, the General Association of International Sports Federations, a not-for-profit association, composed of autonomous and independent international sports federations and other international organisations contributing to sport in various fields”. It is considered the ‘umbrella’ organisation for all international sports federations and it’s fully supported by the IOC, which makes its definition even more incomprehensible, in my opinion. SportAccord gives a definition of ‘Sport’ that is premised upon five fundamental pillars: presence of an element of competition; the sport shall not rely on the element of luck; the sport shall not pose an undue risk for the health and safety of its participants; the sport should not in any way be harmful to any living creature; the sport shall not rely on equipment that is provided by a single supplier.

Regarding the first and fifth of the aforementioned pillars there are no objections, although it is worth the mention that some sports are connected with some arguably monopolistic sponsors that appear almost to be the single material supplier of the sports itself. It’s the other three pillars that appear to be tricky. Despite being able to understand the rationale behind the ‘non reliance on the element of luck’ (an attempt at differentiating sports from gambling or betting activities), there is no way one can even imagine sports without luck playing an enormous part on it. Secondly, regarding the safety and health issues, it seems implausible to believe that a high-performance athlete can engage in a sporting career without compromising with their health from day one. Chronic injuries are almost a given on specific sports, in particular within tennis (‘tennis elbow’), running (achilles’ tendon injuries, ‘runner’s knee’), etc. Cristiano Ronaldo himself once said that every footballer plays through pain as it is ‘part of the job’. Finally, considering that a sport shall never be harmful to any living creature and recognizing equestrian sports as such seems rather incompatible, especially when the horse-riding world is so deeply involved in scandals regarding animal doping as it is.

Having said this, it seems safe to assess that not only these definitions are somewhat lacking, but also do not constitute a relevant obstacle on the recognition of esports. For that reason, at least at this point in time, there is no real argument to counter the fact that esports is in fact a sport. The problem of recognition does not rest on the first layer. The second layer refers to state recognition. The first countries to recognize esports as a sport were South Korea, China and South Africa. At this point in time, some of the so-called ‘big’ countries like the USA, Russia and Germany have recognized it. Nevertheless, and despite apparent recognition, just in 2016 a very established esports athlete was denied a U.S. athletes visa and blocked from competing in a tournament in the country. Furthermore, there are over 190 countries in the world, which makes the global recognition of eSports an ongoing challenge.

The third and perhaps most relevant layer is intertwined with international federations and the IOC. Currently, there are two associations that claim their part as an international esports federation. Such are the International esports Federation (hereafter referred to as ‘IESF’), based in South Korea, and the Global esports Federation (hereafter referred to as ‘GEF’), based in Singapore. This fact alone raises some concern. As the reader might know, for the IOC to recognize a sport as such, it must be governed and regulated by an International Federation (hereafter referred to as ‘IF’). Their statutes, practice and activities within the Olympic Movement “must be in conformity with the Olympic Charter, including the adoption and implementation of the World Anti-Doping Code as well as the Olympic Movement Code on the Prevention of Manipulation of Competitions” (Olympic Charter, Chapter 3, Rule 25). Although the esports case is not unique in the world (keep in mind that Boxing, for example, also has more than one IF associated with the sport), it is undoubtedly hard for the IOC to recognize one IF in detriment of another.

Furthermore, the IOC raises some legitimate questions on the complete compliance with the principles of the Olympic Charter, as many of the famous esports games are characterized by the presence of violence. The main issue with the lack of recognition of esports as a whole, is that it makes it highly demanding to create and issue truly worldwide regulations regarding for example the status of the “professional gamer” and its employment contracts, cyber law and data protection, match-fixing and manipulation of competitions, intellectual property, etc. Consider the case of Italy, for example, where “The lack of a specific regulation makes impossible to give a legal status to pro-players who are de facto professionals but actually cannot be considered like that according to the labor law.” (Lucio Mazzei, Luca Viola in Law in Sport). Such flaws open the door to precarious contracts, that almost always favor the stronger party of the legal relationship (typically the eClub) at the expense of unprepared, (sometimes) underaged and unprotected esports athletes. This regulatory vacuum weakens the integrity and credibility of such a major expanding industry.

Fixing the regulatory loophole

Firstly, and preferably, the major international organisations involved in esports would come to an agreement. I am talking about IESF, GEF, ESL and such. Taking the risk of incurring in a utopia, my suggestion would be something on the lines of a “2022 esports Convention”, signed by the relevant stakeholders of the sport, such as IF’s, National Federations, esports teams, athletes, sponsors, publishers, etc. Seductively, from this convention would emanate an entity to be considered the sole esports International Federation, composed by the most relevant stakeholders of the sport, who would share the common goal of drafting and enforcing a document containing universal and uniformizing rules and regulations on the sport. This does not affect the esports IF from having member associations that could, with reasonable and discretion, develop their own specific regulations regarding their own specific games and tournaments. This would predictably work in favor of getting the most wanted recognition from the IOC, if and when the principles of the Olympic Charter were complied with.

The second option, and perhaps the most realistic one, is for esports to be regulated within the corresponding ‘real-life’ version of the game itself, which is somehow the current model in practice. This option is naturally unattainable in games without sporting correspondence in the material world, such as League of Legends or CS:GO. On the other hand, it has good chances of succeeding in games of eFootball, eBaseball, eRacing, etc. Actually, this idea has current echoing in the Olympic Virtual Series, which implied a partnership between the IOC, the IF’s and the game publishers designed to produce “the first-ever, Olympic-licensed event for physical and non-physical virtual sports” (IOC website). To a certain extent, this option is already implemented in the sense that FIFA regulates its own eFootball competitions (FIFAe World Cup, FIFAe Club Series, FIFAe Nations Series...). The problem with this is that the regulations affect only the tournaments themselves, leaving the legal issues previously mentioned without a concrete answer. The Achilles’ heel of this solution is that it excludes some of the biggest games of this industry, falling under a dangerous under-appreciation of the ‘non-sports related’ video games.

Final thoughts

From the two aforementioned solutions, the first one seems to be the winner. The idea of finally unifying the esports governing bodies into one strong and well-represented IF would solve a lot of the previously raised concerns. The current pyramidal system of Sports is compatible with an hypothetical one on esports. Let’s take the example of FIFA and FIFA for a final overview on how the system would work. FIFAe, the subdivision of FIFA in charge of eFootball, would become a member association of the esports IF. Like any other member association of a IF, it should have discretion to organize its own competitions, in which the participants would be the eclubs. Note that eClubs themselves would be members of FIFAe. Finally, the athletes would be the material competitors, each of them associated with an eClub. Every single member of the pyramid is bound by the compliance with the regulations of the higher-up in the hierarchy. Furthermore, this structure would continue to allow the members of the pyramid to pursue legal relationships with private entities, in the form of Licensing Agreements, Sponsorship Deals, Employment Contracts...

In conclusion, the proposed system would assure that the rules and regulations issued by the esports IF would be complied with, all the way down to the professional gamer – the most fragile part in these system (and by far the one that needs more legal protection).

Article written by Eduardo Bartilotti Canavez, International Sports Law Student from Portugal