General
German Law: Is there a Legal Definition of “Esports” and is Esports Sports?
To address the legal question raised, it is essential to find a definition of “esports” in the law, if there is any.
Table of Contents
Introduction and Definition
In Germany, the term “esports” is not clearly defined by law. It is mentioned sporadically in legal texts such as Section 15 of the RennwLottDV (Execution Ordinance to the Racing Betting and Lotteries Act):
“Chess and competitions between people with the aid of computer games, such as esports, are deemed to be sport within the meaning of paragraph 2.”
and Section 22 No. 5 of the BeschV:
“Persons who practise esports in the form of a competition between persons on a professional basis and whose involvement in German eSports clubs or comparable organisations participating in competitions is intended, if they:
[…]
c) the German umbrella organisation responsible for esports confirms the professional practice of esports and the form of eSports practised is of significant national or international importance, […]”
Although it is often used as an abbreviation for electronic sports, esports, its meaning is not consistently understood due to regulatory factors. It typically means participating in the competitive playing of video or computer games, particularly on computers and consoles, following certain rules. The commonly held belief recognizes three basic components:
■ The physical performance of the player at the input device
■ In response to the screen content
■ While simultaneously mentally mastering the game’s sequence.1
Esports can be therefore defined as a
“an area of sport activities in which people develop and train mental or physical abilities in the use of information and communication technologies.”2
Although there is largely consensus on this definition, numerous individual questions remain controversial. This is partly due to the diverse nature of computer games that can be part of esports. Regardless, esports should correctly be defined broadly as “competition between people using computer games.”3
Classification of Esports as Sports
There is also a debate about whether esports should be categorized as “traditional sports”. The German Olympic Committee and legal scholars are currently of the opinion that it is not.4
Defintion of Sports under German law
Similar to esports, sports is a concept that is referenced in multiple laws but lacks a clear legal definition. The only definition can be located in Section 15 para. 2 sentence 1 of the RennwLottDV, specific to the Racing Betting and Lotteries Act and not applicable across the board. A precise definition has not been established by either sports science or legal scholarship. Hence, an interpretation is necessary.
Historical Meaning
The word “sport” comes from the Latin words “disportare” or “deportare,” which mean “to carry away” or “to bring away,” and can be interpreted as “to relax.” Nevertheless, this is not enough to constitute a thorough legal definition.
Sports Science
Sports science has attempted numerous definitions, yet no uniform definition exists.
The now non-existent Global Association of International Sports Federations (GAISF) used a specific definition to recognize sports and their federations, emphasizing a competitive element based on skill, strategy, and physical prowess while excluding luck as a primary factor. The GAISF prioritizes athlete well-being and safety, alongside ethical considerations, including the humane treatment of animals involved in sports. It also mandates that no sport should be dependent on exclusive equipment from a single supplier, promoting fairness and accessibility.
The EU Commission’s White Paper on Sport similarly defines “sport” as
“all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.”
Thus, although there is no standard definition of sports science, there are shared qualities found in various definitions. The idea of sports is based on physical activity as well as the desire for performance, competition, and comparison.
Legal Definition of Sports
Legal academic research has also for a long time aimed to determine the meaning of the idea of sports. In legal circles, it is widely agreed that sports encompass all physical activities done for fun, fitness, enjoyment of competition and performance, as well as adherence to rules and organizational structures. The pursuit of excellence is also recognized by legal scholarship as a key feature of sports. In this context, Section 15 para. 2 sentence 1 of the RennwLottDV defines sports, for its purposes, as
“physical exertion by a person or a person together with a trained or conditioned animal, exceeding usual levels, marked by externally observable efforts or by movements attributable to personal skill.”
Conclusion
Important characteristics of the legal idea of sports encompass physical activity, competition or striving for performance, typically accompanied by rules and various organizational structures, and involvement for the sake of enjoyment rather than with a productive motive.
The legal definition of sports closely mirrors the definition in sports science. Both sectors concur that physical activity is typically pursued as a goal in its own right rather than for financial gain. Nevertheless, the different efforts to define sports show that the concept cannot be clearly defined. Due to the absence of defined boundaries for the legal understanding of sports, a typological method is needed. According to definitions in sports science, important characteristics of the legal concept of sports have been recognized, including physical activity, competition or striving for performance, typically with rules and organization, and involvement for its own sake rather than for productivity.
So does Esports qualify as Sports under German law?
Given the context provided and the analysis of both esports and traditional sports under German law, it is apparent that esports aligns with many fundamental characteristics of what constitutes sports. Specifically:
- Physical Performance: Both traditional sports and esports involve physical performance, albeit in different forms. For esports, physical performance is demonstrated through the agility and precision required at the input device in response to game dynamics.
- Competitive Element: Esports fulfills the competitive criterion essential to sports, where individuals or teams compete under a structured set of rules to achieve victory.
- Regulation and Organization: Similar to traditional sports, esports operates within a framework of rules and is organized into clubs, leagues, and tournaments, indicating a level of formal organization comparable to conventional sports.
- Skill and Strategy: Just as traditional sports require skill, strategy, and physical prowess (excluding luck as a primary factor), esports demands mental agility, strategic planning, and in-depth knowledge of game mechanics.
- Physical Fitness and Mental Well-being: The EU Commission’s definition of sports as activities aiming to improve physical fitness and mental well-being can also apply to esports. Although the physical exertion may not be as intense as in traditional sports, the strategic thinking, quick reflexes, and mental stamina required for esports contribute to cognitive abilities and can influence mental well-being.
- Social Relationships: Participation in esports, like traditional sports, fosters social relationships. Team-based games and the community aspect of esports events create social bonds among players and fans alike.
However, there remains a debate, particularly within bodies like the German Olympic Committee, regarding the categorization of esports as “traditional sports.” This hesitation seems rooted not in the physical versus mental exertion debate but in the historical and cultural recognition of what constitutes a sport.
Given the evolving nature of sports and the inclusion of new disciplines that adapt to technological advancements and changing social dynamics, esports shows considerable overlap with the established criteria defining traditional sports. Despite the current official stance in some quarters, the parallels suggest that esports could be recognized as sports, especially as perceptions and definitions continue to evolve in response to societal changes.
Image source: EScholar
- Francken/Nothelfer/Schlotthauer, NZA 2019, 865. ↩︎
- Shmatenko, eSports – ‘It’s in the Game’: The Naissance of a new Field of International Arbitration (April 29, 2021). 40 under 40 International Arbitration 2021, González-Bueno, Carlos (ed.), 393-410, Available at SSRN: https://ssrn.com/abstract=3836741 ↩︎
- Nothelfer, LR 2020, 276, 278 ↩︎
- Fischer, Rechtsfragen einer Anerkennung des e-Sports als gemeinnützig, 2019, p. 41 ff., and statement by Prof. Dr Carmen Borggrefe and a further 80 sports scientists, https://cdn.dosb.de/UEber_uns/eSport/Stellungnahme-zum-eSport.pdf. ↩︎
