The e-sports phenomenon
E-sports is the activity in which people play video games in a competitive manner. The video games used for e-sports are not limited to sports games such as FIFA, but also include other types of games (e.g. real time strategy – Starcraft, First Person Shooter – Counter-Strike, Multiplayer Online Battle Arena – League of Legends, etc.).
Developers of these video games have invested massively in providing the ability to play these games online, in a competitive matter, with or against each other. The huge popularity of (some of) these games and their competitive element have led these developers to further commercialise their products. Today, tournaments with millions in prize money, thousands of spectators, and major sponsorship deals are hosted at high-end venues. Even though Belgium lags behind in this regard, the same trend is noticeable with, for example, the major Belgian internet service provider, Proximus, involved in the development of three official e-sports leagues and various football clubs hiring their own e-athlete to represent their club.
E-sports at the 2024 Paris summer Olympics?
The International Olympic Committee (“IOC”) has never defined what constitutes a sport and therefore reference is often made to the definition in the European Sports Charter, in which sports are seen as all forms of physical activities which, through casual or organised participation, are intended to express or improve physical fitness and mental well-being, form social relationships or obtain results in competition at all levels.
It is reasonable to assume that the IOC is adopting the position that e-sports can effectively qualify as a sport. Indeed, on 21 July 2018, the IOC organised an ‘e-sports forum’ at the Olympic museum in Lausanne. The aim of the forum was described as setting a platform for future engagement between the e-sports and gaming industries and the Olympic Movement. With the announcement that e-sports will be a demonstration sport at the 2018 Asian Games and the 2024 Summer Olympic Games and will be a medal event at the 2022 Asian Games, it is clear that the IOC is fully-aware of e-sports’ potential and would like to include it in its Olympic programme. Given the predicted e-sports global market revenue of nearly 1,500 million USD in 2020 and the opportunity to attract the attention of an entire new generation, this interest is easily understandable.
However, critics have noted that the Global Association of International Sports Federations (“GAIFS”) holds that, to be considered as a sport, an activity should not rely on equipment that is provided by a single supplier. In e-sports, it is usual that a games developer supplies the essential technology for the activity and that this developer frequently changes the rules of the game. Without the games developer, who holds the intellectual property rights to the game, the activity cannot exist. The question of whether such a concept is compatible with the concept of a sport cannot be easily answered and will most likely trigger many debates in the context of, for example, e-sports’ official recognition as a sport and the question of whether state subsidies, which is common practice in other sports, are desirable.
In my view, GAIFS’ criteria for a sport are overly-formalistic and the dominant position of the games developers in the current concept of e-sports could be addressed through a strong regulatory framework and international federation. The current International E-Sports Federation (“IESF”) and World Esports Association (“WESA”) work on the promotion of e-sports, but still need to take major steps in fine-tuning the rules of the game(s). The games developers’ dominant position is seen by many as a huge challenge in the upcoming years. A strong federation will also be needed to tackle the further legal challenges and opportunities for a fast-growing activity like e-sports.
In light of its rapid growth, it is clear that e-sports will face various legal challenges in the near future. Some of these challenges are similar to the issues that have previously been dealt with in other sports, but others are very specific to e-sports and will require a tailor-made solution.
One issue, which every sport is eventually confronted with, is corruption. With betting companies already heavily advertising for e-sports betting, a clear policy will be needed on match-fixing, cheating tools, betting on ‘own’ games, abuse of ‘inside’ information, etc. Furthermore, the physical skills required for (some) e-sports and the continuous concentration that is necessary for success in e-sports, have led and will lead to the use of performance-enhancing medicines and other types of doping. Games developers, (inter)national federations and other regulating bodies will need to adapt their existing corruption policies towards the specificities of e-sports and might have to issue specific regulations for e-sports.
Next, the concept of e-sports generates various questions regarding intellectual property (“IP”). There are of course the issues arising from building on the IP of other stakeholders, a prime example being the use of the names and likenesses of players in the hugely popular FIFA franchise. In addition, sports events organisers and other stakeholders are likely to try and build exclusivity around their respective contributions, and they often try to rely on IP or related rights (for instance image rights) for doing so. Similar to traditional sports events, unique and personal contributions are also made by the tournament organiser, the broadcaster, the publisher, the games producer, the team, the player and the commentator during e-sports tournaments. It can be quite a burden to find one’s way in the ‘forest’ of existing IP laws. The predominantly territorial nature of IP rights complicates the matter even further, especially in the international environment in which a significant number of (the most important) e-sports tournaments take place. All of these stakeholders are thus well advised to carefully think about IP and IP strategies, not in the least because – as the traditional sports market shows - IP and related rights can be a key tool for keeping control over their contributions and an important source of revenue.
Also, a key consideration is how e-sports players will be properly protected. Whereas some e-sports players in Belgium have today signed their first employment contract with their respective clubs or teams, the vast majority of Belgian e-athletes are termed contractors or have no contract at all. Research shows that further growth in the sector can only be achieved if the athletes are sufficiently remunerated and protected. Consequently, various protection mechanisms including unionising, mandatory employee status, etc. will have to be considered.