Competitive Gaming vs. Esports: A Legal Examination for the Informed Practitioner

Definition and Legal Recognition

Competitive Gaming

“Competitive Gaming” refers to any video game-based activity where individuals or teams engage in competition to achieve specific objectives or outcomes within the game environment. This encompasses a wide range of formats, from informal challenges among peers to structured online and offline tournaments. Competitive gaming includes, but is not limited to, traditional head-to-head matches, time-based challenges such as speedruns, and achievement-based contests. In speedruns, participants aim to complete a game or specific objectives within a game in the shortest time possible, often exploiting game mechanics or employing specialized strategies. While competitive gaming can overlap with esports, it is distinguished by its broader scope, encompassing both professional and amateur levels of play, and may not always involve formalized structures, rules, or significant monetary rewards.

Esports

“Esports”, an abbreviation of “electronic sports”, refers to organized, multiplayer video game competitions, particularly between professional players, individually or as teams. These competitions are often facilitated by specific governing bodies and are characterized by structured formats, rules, and regulations akin to traditional sports. Esports encompasses a range of genres, including real-time strategy, first-person shooter, and multiplayer online battle arena games. Participants in esports may enter into formal contracts, receive compensation, and be subject to rights and obligations similar to traditional athletes. Esports events may be broadcasted live, attracting significant viewership both in-person in arenas and online through streaming platforms. The term “esports” distinguishes these formal, professionalized competitions from broader, casual competitive gaming activities.

Contracts and Professional Agreements

Competitive Gaming

Competitive gaming events may involve agreements, such as terms of participation or prize distribution. However, these agreements are often informal and may not always be legally binding. Disputes might be resolved informally or through platform-specific arbitration mechanisms.

Esports

Esports involves a myriad of contracts – player-team agreements, sponsorship deals, broadcasting rights, and more. These contracts can be intricate, stipulating player salaries, behavior clauses, performance benchmarks, and revenue sharing. Breaches can lead to litigation or arbitration, much like in traditional sports.

Intellectual Property and Broadcasting Rights

Competitive Gaming

Intellectual property (IP) concerns in the realm of competitive gaming primarily center around the licensing rights of the games being played and the content generated by users. Game developers typically grant licenses to players, allowing them to play and, in some cases, stream or record their gameplay. However, these licenses often come with restrictions, especially concerning the commercial use of the game’s content. While players might stream their gameplay on platforms like Twitch or YouTube, the avenues for monetization, such as advertisements or sponsorships, can be limited either by the platform’s policies or the game’s licensing agreement. Additionally, user-generated content, like custom game mods or fan-made art, can introduce further IP considerations, particularly if they incorporate copyrighted elements of the original game.

Esports

The IP landscape of esports is multifaceted and can be intricate. At the forefront, game developers retain the rights to their games, which includes the game’s code, artwork, music, and other proprietary elements. However, as esports has evolved, new layers of IP considerations have emerged:

1. Player Performances: Just as a musician holds rights to their live performances, questions arise about the rights to an esports player’s in-game performance. Who owns the rights to a particularly skillful move or strategy developed by a player?
2. Team Logos and Branding: Esports teams, like traditional sports teams, develop unique logos, slogans, and branding elements. These are often trademarked to prevent unauthorized use and to build a brand identity in the competitive landscape.
3. Broadcasting Rights: Major esports tournaments are events with significant viewership. The rights to broadcast these events, both online and on traditional media, can be sold for substantial sums. Unauthorized broadcasts or “restreams” can infringe on these rights, leading to legal disputes.
4. Merchandising: With the rise of esports’ popularity, there’s been a surge in related merchandise, from team jerseys to in-game skins. The sale and distribution of these items are often governed by trademark and copyright laws.
5. Sponsorships and Endorsements: Esports teams and players often enter into sponsorship deals, which can include the use of logos, names, and likenesses. These deals can have intricate IP clauses to protect both the sponsor’s and the team’s/player’s brands.

Player Rights and Labor Laws

Competitive Gaming

Competitive gamers, especially those participating in smaller or informal competitions, often operate outside the purview of structured legal frameworks. This means:

1. Lack of Contractual Protections: Many competitive gamers may not have formal contracts, leaving them vulnerable to potential breaches, such as unpaid prize money or unfulfilled promises by event organizers.
2. Dispute Resolution: In the absence of formal agreements, resolving disputes can be challenging. Gamers might have to rely on platform-specific arbitration mechanisms or informal negotiations rather than legal avenues.
3. No Standardized Benefits: Unlike traditional employment, competitive gaming rarely offers benefits such as health insurance, retirement plans, or paid leave. This can pose challenges, especially for those who consider competitive gaming as a primary source of income.
4. Inconsistent Regulations: The rules and regulations governing competitive gaming can vary widely between events, leading to inconsistencies in player treatment and rights.

Esports

With the professionalization of esports, the industry is seeing a shift towards more traditional employment structures and the associated legal protections:

1. Formal Contracts: Esports players often sign contracts with teams or event organizers. These contracts can stipulate salaries, performance bonuses, behavior expectations, and more.
2. Labor Law Protections: In regions where esports players are recognized as professional athletes or employees, they may be entitled to protections under labor laws. This can include minimum wage guarantees, overtime pay, and mandated breaks.
3. Health and Well-being: As the physical and mental demands of professional gaming become more recognized, there’s a growing emphasis on providing health benefits, including medical insurance, mental health resources, and ergonomic training.
4. Unionization and Player Associations: Recognizing the need for collective bargaining, some players are forming or joining associations or unions. These organizations aim to advocate for player rights, negotiate better contract terms, and provide a unified voice in disputes.
5. Training and Development: Just as traditional athletes receive training and development, esports players are increasingly provided with coaching, game strategy sessions, and other resources to enhance their skills.
6. Retirement and Future Planning: With the transient nature of esports careers, there’s a growing focus on providing players with retirement benefits and future career planning resources.

Regulatory Bodies and Governance

Competitive Gaming

In the realm of competitive gaming, the landscape is vast and diverse, encompassing a myriad of games, platforms, and event formats. This diversity inherently brings about a decentralized form of regulation. Most competitive gaming events are self-regulated, with rules set by individual event organizers or the game developers themselves. This absence of a centralized governing body grants event organizers significant flexibility in determining competition formats, prize structures, and participant eligibility. However, it also means that enforcement mechanisms for rule violations can vary widely. Some events might opt for informal dispute resolution processes, while others might lean on platform-specific arbitration. This lack of standardized rules across different events can lead to inconsistencies, where a particular strategy or game mechanic might be permissible in one tournament but banned in another.

Esports

On the other hand, esports, with its trajectory towards professionalization, is carving out a more structured regulatory landscape, drawing many parallels with traditional sports. Certain esports titles or leagues have established governing bodies that oversee competitions on a global scale. These bodies are responsible for setting standardized rules, ensuring competitive fairness, and handling disputes. As the stakes in esports rise, so does the emphasis on maintaining a level playing field. This has led to the implementation of anti-doping regulations, akin to those in traditional sports, to prevent the use of performance-enhancing drugs or software cheats. Additionally, some esports leagues have introduced player and team licensing requirements, ensuring that participants adhere to a professional standard and the league’s code of conduct. Violations of these rules can result in sanctions, which can range from monetary fines to suspensions or even bans, all in a bid to maintain the integrity of the competition. Beyond just the players and teams, the governance process in esports often involves other stakeholders, including sponsors, broadcasters, and fans, ensuring a holistic approach to regulation.

Conclusion

The digital gaming universe, spanning from grassroots competitive gaming to the grandeur of professional esports, has firmly established itself as a significant cultural and economic force in the modern era. Both domains, though rooted in the world of video games, present distinct legal landscapes.

Competitive gaming, with its diverse array of formats and decentralized nature, often operates in a realm of autonomy. Its regulatory framework is primarily shaped by individual event organizers or game developers, leading to a patchwork of rules and governance structures. This decentralized approach offers flexibility but can also result in inconsistencies, especially when it comes to player rights, intellectual property, and dispute resolution.

In contrast, esports, as it marches towards greater professionalization, is carving out a more structured and standardized regulatory environment. Drawing inspiration from traditional sports, esports is seeing the emergence of governing bodies, standardized rules, player associations, and intricate contractual frameworks. This evolution brings with it complex legal considerations, from intellectual property rights in broadcasting to labor laws for players.

As the gaming industry continues its upward trajectory, the legal frameworks that underpin it are bound to become more sophisticated and nuanced. The distinctions between competitive gaming and esports, while subtle, have profound legal implications. For legal practitioners and scholars, staying abreast of these developments is not just beneficial but essential. As the lines between digital entertainment and traditional legal structures continue to blur, a deep understanding of the intricacies of both competitive gaming and esports becomes paramount in effectively navigating and shaping the future of this dynamic and ever-evolving landscape.

Photo: Yves Tennevin, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons