General
Takaze’s Take: The Rise of American Esports—and the Fall of the NCAA
In this article, Takaze discusses the NCAA’s legal challenges. The future of Division I sports, and the future of American esports.
Table of Contents
The University of Arizona recently announced that its esports program has been de-funded.[1] The esports program “can no longer continue without the additional funding and has lost its varsity status.”[2] There are three categories of collegiate esports programs: Varsity, Non-Varsity, and Club.[3] Varsity esports programs are led by directors, and their success is “based on recruitment and competitive placement.”[4]
“40% of esports programs live under the athletics department.”[5]
Non-Varsity esports programs are led by directors, and their success is “based on recruitment and on-campus student engagement.”[6] “60% of esports programs are housed outside of athletics.”[7] Esports Clubs are led by students, and their success is “based on community development and student leadership.”[8]
Esports are not the only programs struggling.[9] In fact, athletic “departments around the country are struggling to generate revenues capable of offsetting runaway expenses. Inflation, NCAA deregulation, and COVID-related loan obligations have all driven up the cost of operation in recent years.”[10]
‘The cost to colleges and universities in student-athlete recruitment and acquisition is higher than it’s ever been. Then you add deregulation, more liberal transfer guidelines and chaos in NIL, it makes these commitments more like a series of one-year contracts.’[11] ‘Then you face the cost to retain student-athletes including developing deep NIL resources, and making massive experience investments which is another challenge entirely.’[12] “College sports insiders estimate that ~75% of Division I athletic departments now rely on some form of institutional support, with some receiving tens of millions in subsidies annually.”[13]
Takaze’s Take
The NCAA is experiencing death by a thousand cuts. We ought to be cheering. Once the Death Star is destroyed, the New Republic can usher in a just regime. We prefer to cover up or deny our institutions’ transgressions in America. If America does take action to correct wrongdoing, it is half-measures.[14] The term “student-athlete” is derogatory. The NCAA has used this term to justify their misconduct.[15]
Supporters of the term student-athlete should be considered bigots. The athletes in the top tier of Division I collegiate athletics are professionals. Denying these are professional leagues because of the athlete’s age is asinine. In America, age doesn’t determine whether an athlete is a professional. The United States has no issue sending young women to compete in the Olympics.[16] Anyone opposed to Division I athletes earning salaries that accurately reflect the value of their abilities must self-reflect. What emotions are you feeling?
Old Men Yelling at Clouds
Nick Saban’s comments about NIL have garnered a lot of attention. Recently, he said it’s “fantastic that players get to make money now. But every single coach, in every single revenue sport, if you’re paying attention, is saying the same thing. This is the only thing that any recruit is asking about now when they come on visits. And I don’t believe it’s pearl-clutching to wonder if maybe that’s not ideal.
Maybe something about the school and your development there as a human being oughta comment on your process there and your line of thinking because overwhelmingly those athletes are going to have to find a job that isn’t football when they leave.”[17] Given that these athletes are being asked to play professional sports without receiving a salary, no coach should be surprised that athletes want to maximize the area they can profit from. The universities should not be the only party that profits.[18]
Saban isn’t the only noteworthy individual upset about these professional athletes demanding fair wages. Senator Tommy Tuberville is outraged as well. Senator Tuberville said, “the last time I looked, they’re not employees. These students are student-athletes… Coaches right now have a little bit of control of the football team or the basketball team or gymnastics… Problem is [if] unions get involved, they will go on strike before a championship game. They will hold hostage the people that are paying the bills.”[19]
Senator Tuberville’s comments are absurd. Senator Tuberville’s words are belittling and condescending. However, his position is understandable. Right now, everybody in the equation wins except for the athlete.[20] Treating these professional athletes fairly is terrible for business. The NCAA and the Universities are in complete control. If these professional athletes don’t toe the line, the NCAA and/or the University can crush them.[21] It’s a sweet deal for the NCAA and the Universities. Senator Tuberville is right; these professional athletes are “going to kill the goose that laid the golden egg.”[22]
Stay In Your Lane
A University cannot manage a professional sports team. There has been significant discussion of Title IX’s impact on NIL and athlete pay. “Title IX prohibits sex discrimination at educational institutions that receive federal money. It plays an instrumental role in college sports. Among other effects, Title IX requires that athletic departments provide equitable treatment to men and women athletes.”[23]
The expectation is colleges “that pay football and/or men’s basketball players but not other athletes [will] undoubtedly face Title IX litigation. They might also face claims under the Equal Pay Act and Title IX of the Civil Rights Act, laws that prohibit sex discrimination in compensation and employment.”[24] The NCAA is scrambling to find ways to compensate women’s basketball programs.[25] The NCAA needed five years to name a partner for the NIL Registry.[26] Why should we ask these young women to wait for whatever half-baked plan the NCAA unveils?[27] The NCAA is not taking action to right a wrong. The NCAA recognizes that their chickens have come home to roost.
Thanos Warned Us
Pay-for-play is inevitable. Scholarships are no longer the be-all and end-all. “At many programs, players are receiving NIL as a way of going above the NCAA scholarship limit of 85 per team. It’s a way to have a deeper roster and keep veteran players around.”[28] The performance of these professional athletes is worth more than what the university bills for a semester’s or an entire school year’s tuition. A scholarship’s actual value is that of a deal sweetener. The time when a scholarship could be used as a weapon against these professional athletes has passed.[29]
The NCAA should seek an honorable death. The jig is up. The players are seeking “monetary damages for being denied three things: a share of broadcasting revenue… the opportunity for revenue that would have been possible in college sports video games and NIL opportunities prior to 2021. They also want NCAA rules changed to allow the Power Five to negotiate with players going forward for their appearance in televised game broadcasts and the removal of NIL restrictions related to direct school and conference payments.”[30]
The NCAA is understandably afraid. “The fundamental risk for the NCAA in permitting colleges to make direct NIL payments is the moment one of those payments is exposed as compensation to attend, or not later transfer from, a school. Such a payment wouldn’t be NIL, but instead pay-for-play-a payment the NCAA has long insisted is an anathema to the student-athlete model and a threat to amateurism.”[31] The NCAA’s value was in its ability to restrict profit sharing.
University Athletic Directors (ADs) appear prepared to sacrifice the NCAA to save themselves. Some ADs believe that the “system is broken, and I don’t know how much more we can break it… This is forcing a traditional model to look outside itself, and that’s a good thing.”[32] Apparently, the NCAA is the only party that cannot see the writing on the wall. Some ADs claim this has “been on our radar for quite a while now…
While the terms haven’t been resolved, or if they will be resolved if this doesn’t go to trial, you think about the changing model of college athletics all the time… [College athletics] is going to look different in three years than it does today, but I don’t think any of us have a clear vision of exactly what that is, other than knowing that times are changing.
A lot of colleagues can complain about that, but at the same time, it’s exciting too. It’s an opportunity to be part of the new world of college athletics when it arrives.”[33] The NCAA is outmanned and outgunned.[34] Professional athletes are asserting their rights. Universities have abandoned the NCAA. Now, Uncle Sam has added himself to the NCAA’s dance card.[35] The Federal Trade Commission has forbidden the use of noncompete clauses.[36] The IRS is targeting NIL collectives.[37] The NCAA has mistaken NIL as its safety net. NIL is the harbinger of death.
Ready to Form Voltron?
Conflict is essential to bring about change.[38] The public execution of the NCAA is good for the sports world. Charlotte and Stephen Jones of the Dallas Cowboys recently reminded us that asserting your rights is good for business.[39] How much longer will the Power 4 Conferences exist? The Pac-12 was hunted until it became an endangered species.[40] The ACC is on the verge of imploding.[41] The B1G and the SEC are not devoted to the College Football Playoff (CFP).[42] So, who has next?
In the football world. The College and professional games have increasing commonalities. On the field, Helmut communication and the 2-minute warning have arrived.[43] Regarding business transactions, players have essentially been granted free agency.[44] Furthermore, NIL opportunities allow players to delay declaring for the NFL draft.[45] Some believe the Power 4 conferences must break up with the NCAA.[46] The College football “Super League” is generating considerable attention.[47]
There would be eight divisions, and the “seven permanent 10-team “Super League” divisions consist of every Power Five school plus Notre Dame, and are organized geographically: west, southwest, plains, Midwest, northeast, south and southeast. In large part, the effort appears to preserve or reunite historic rivalries, a number of which have been shattered by conference realignment.”[48] Is an eighty-team “Super League” the same show with a different title? Will a committee determine which teams earn postseason berths instead of wins, losses, and tiebreakers? Hopefully, the goal was to suggest something silly to ensure consumers pay attention to detail.
Some believe that
“a distinct separation of NCAA Division I college football by a minimum overall program/athletic budget needs to happen. In other words, it is not the have and have-nots. It is the have and never-will-be’s, and nothing will really change that simply because of financial efficacy. It does not make financial or competitive sense for many schools… to play in a sandbox where they cannot compete.”[49]
Let this be the moment when Americans stop embracing half-measures. The top tier of Division I sports are professional leagues. At best, seven to ten football teams can win a title in Division I. Perhaps there will be more parity after the league is reborn. Take the top 30-32 teams and establish a formal professional league. Division I professional sports are the only major American sports leagues with over 40 teams.
Implementing a system of promotion and relegation will create suspense and generate excitement. Embracing a system of promotion and relegation forces programs to prove they belong in the top tier and silences critics.[50] Determining who belongs in the sandbox is best done on the field, not in meeting rooms. Players can unionize once a formal professional league is created, and collective bargaining can begin. The NFLPA, NBPA, and WNBPA can assist or house the newly formed unions. Finding owners for these new teams will not be difficult.[51]
The universities will get their piece of the pie. Stadiums and arenas can be leased.[52] The narrative surrounding public funding for stadiums and arenas is changing. “The battle for public funding is highly competitive and the tendency historically has been for municipalities to allocate those dollars to “more visible” stadia… Tier two and three properties, and minor league organizations, particularly those in secondary markets, have gotten overlooked. But that mentality is starting to change.
Broad demand for live entertainment nationwide, and an influx of smart money into these teams… has brought on a newfound willingness amongst elected officials to allocate public dollars.”[53] Elected officials’ support for funding stadium projects is not intrinsically evil. “Taxpayer support of sports isn’t inherently bad: Fair and thoughtful deals between cities and teams can result in situations where the public sees a return on their investment.”[54] The universities’ logos and jerseys can be licensed.[55] Let’s do this right—no need to cut corners.
Trust The Silver Surfer
NBA Commissioner Adam Silver can be trusted with the fate of the basketball world. Silver’s handling of NBA business issues has been masterful.[56] For those wondering what March Madness would be like without the NCAA, some believe there would be little change. “The players would still play for their teams, fans would still watch, and non-fans would fill out brackets for their office pools. The difference would be found off the court. Players would be paid for their labor and the use of their name, image, and likeness on broadcasts, merchandise, and apparel…
TV networks, sneaker companies, and other businesses that profit from the tournaments would have to share in the money, just like they share with the NBA and WNBA players through group licensing.”[57] Silver is undoubtedly lined up, waiting for the swell. The author believes the top 30-32 Division I basketball teams should establish a formal professional league. Moreover, the author insists implementing a system of promotion and relegation will create suspense and generate excitement.
Betting companies will argue that Cinderella and a large postseason tournament are essential. However, the NBA isn’t a stranger to this space.[58] The NBA is considering expanding into Europe.[59] Hopefully, the entire universe acknowledges that basketball’s future is brightest under the Surfer’s stewardship.
Are The Stars Aligning?
The streaming wars are being waged in the sports world.[60] The framework for sports media rights deals is evolving; this is the perfect time for a revolution. “The NBA is ‘seeking a new decade-long – or longer’ – media rights contracts that will ‘alter how it traditionally delivers games, with streaming becoming the principal distribution method.’”[61] The NBA has the framework for a deal with Prime Video.[62]
The NBA’s commitment to streaming is forcing companies to adapt-or-die.[63] The NBA is head-and-shoulders above the other major American sports leagues in terms of progressive thinking and business savvy.[64] “Remember, the beauty of streaming is that the platforms have the capability to capture more about who is engaging with the content, and how they’re doing it.”[65] The sports world is metamorphosizing; lean in.
A Phoenix Rising From The Ashes
“Esports is growing across the Globe. Mature markets like North America and Western Europe are continuing to grow. However, over the last year, audience numbers were most affected by growth markets in the Middle East, Africa, Asia-Pacific, and Latin America.”[66] Despite the NCAA’s distasteful business practices, esports have succeeded in North America. “Schools are mostly trying to make revenue through esports by increasing enrollment. If your cost of attendance is USD 35,000 or USD 40,000 per student, and you only have to invest maybe USD 5,000 or USD 10,000 per student for the esports program, then that could be a revenue generator.”[67]
The demise of the NCAA is the salvation the esports world has been praying for. The NBA is active in this space.[68] The Surfer is ready to strike. The NBA’s ability to take over the space will bring suitors to compete with the Saudis. [69] Once the NFL catches up to the NBA, esports will have the momentum it needs to become an Olympic sport.[70] Madden tournaments are 1 v. 1.[71]
The author is unsure if 11 v. 11 matches are feasible; nevertheless, 7 v. 7 matches are. Ideally, the NFL will recognize the value of establishing a league like the NBA’s 2k League. Investing in Madden and Flag Football will assist the NFL in achieving its international ambitions. We have to do this, and we should want to—let the NCAA burn.
[1] Emma LaPointe, University of Arizona Cuts Funding to Esports Program, THE DAILY WILDCAT (Apr. 1, 2024), https://wildcat.arizona.edu/154624/news/university-of-arizona-cuts-funding-to-esports-program/.
[2] Id.
[3] Chris Postell & Kris Narayan, Trends in Collegiate Esports Report Lite, 10 (4th ed. 2024).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] JohnWallStreet, College Sports’ Rising Costs Becoming Institutional Level Problem, JohnWallStreet (Jan. 23, 2024), https://blog.johnwallstreet.com/p/college-sports-rising-costs-becoming-institutional-level-problem.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] See Jack N. Rakove, Original Meanings (1997); Angela Y. Davis, Freedom Is A Constant Struggle (2016); Mary L. Dudziak, Cold War Civil Rights (2011); Risa L. Goluboff, The Lost Promise of Civil Rights (2007).
[15] See Josh Eidelson, NCAA Abuses ‘Student-Athlete’ Term to Deny Rights, NLRB Alleges, Bloomberg Law (Dec. 18, 2023, 4:47 PM), https://news.bloomberglaw.com/daily-labor-report/ncaa-abuses-student-athlete-term-to-deny-rights-nlrb-alleges.
[16] Nick Zaccardi, Olympic Women’s Gymnastics Median Age in 20s for First Time in Decades, NBC Sports (July 14, 2021, 4:42 AM), https://www.nbcsports.com/olympics/news/olympic-gymnastics-average-age; See Louise Radnofsky, U.S. to Pay Victims of Larry Nassar $100 Million Over FBI Failures, The Wall Street Journal (Apr. 17, 2024, 12:15 PM), https://www.wsj.com/sports/olympics/larry-nassar-fbi-failures-18067a65?st=3hjy9s61m3wicmt; See also Juliet Macur, U.S. Rowing Rescinds Ted Nash’s Honors After Abuse Investigation, The New York Times (Apr. 30, 2024, 6:20 PM), https://www.nytimes.com/2024/04/30/us/ted-nash-jennifer-fox-abuse-investigation.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=c-cb.
[17] Seth Emerson, What Nick Saban is Wrong, and Right, About in NIL Debate, The Athletic (Mar. 13, 2024), https://theathletic.com/5339689/2024/03/13/nick-saban-nil-college-sports-congress/.
[18] Cork Gaines, The 23 Universities That Make At Least $125 Million Annually From Their Sports Teams, Business Insider (Jan. 25, 2024, 4:56 AM), https://www.businessinsider.com/college-sports-revenue-ncaa-ohio-state-buckeyes-texas-football-2024-1; See also NCAA Finances: Revenue and Expenses by School, USA Today (Mar. 14, 2024, 10:05 AM), https://sports.usatoday.com/ncaa/finances.
[19] Daniel Libit, Tuberville Says Dartmouth Union Will Kill NCAA ‘Golden Goose’, Sportico (Mar. 6, 2024, 6:00 PM), https://www.sportico.com/leagues/college-sports/2024/tuberville-dartmouth-union-vote-1234769673/.
[20] See Eben Novy-Williams & Brendan Coffey, Auburn’s Under Armour Stock Deal Fell By $8.6M. Now It’s a Nike School, Sportico (Apr. 9, 2024, 2:00 PM), https://www.sportico.com/business/commerce/2024/auburn-nike-under-armour-equity-1234774545/; Timothy Rapp, Colorado Sees Record-Breaking Application Numbers After Deion Sanders’ 1st Year as HC, Bleacher Report (Mar. 9, 2024), https://bleacherreport.com/articles/10112333-colorado-sees-record-breaking-application-numbers-after-deion-sanders-1st-year-as-hc#.
[21] Michael McCann, Threat to Strip LSU Athletic Scholarships Raises Legal Questions, Sportico (Apr. 3, 2024, 10:10 AM), https://www.sportico.com/law/analysis/2024/louisiana-governor-threatens-athletic-scholarships-anthem-skip-legal-questions-1234773631/.
[22] See supra note 19; See also Labor Cases at Dartmouth, USC Start of Larger Dispute Over Athletes’ Employment Status, Sports Business Journal (Mar. 19, 2024), https://www.sportsbusinessjournal.com/Articles/2024/03/19/college-labor-cases?hl=labor+cases+at+Dartmouth&sc=0&publicationSource=search; David Cobb, Reggie Bush’s 2005 Heisman Trophy Reinstated as Former USC Trojans Star Wins Long Battle, CBS Sports (Apr. 24, 2024, 11:17 AM), https://www.cbssports.com/college-football/news/reggie-bushs-2005-heisman-trophy-reinstated-as-former-usc-trojans-star-wins-long-battle/.
[23] Michael McCann, Biden’s Title IX Rule Lands as NCAA Athletes Gain NIL, Employee Rights, Sportico (Apr. 22, 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/biden-title-ix-regulations-nil-employee-1234776305/.
[24] Id. See Daniel Libit, Oregon Denies ‘Any Control’ Over Nil Collective In Title IX Defense, Sportico (Mar. 5, 2024, 9:00 AM), https://www.sportico.com/leagues/college-sports/2024/oregon-title-ix-defense-division-street-nil-phil-knight-1234769273/; See also Daniel Libit, Oregon, Division Street Play for Kicks Amid Title IX Nil Litigation, Sportico (Mar. 29, 2024, 8:00 AM), https://www.sportico.com/leagues/college-sports/2024/oregon-division-street-shoe-partnership-title-ix-nil-litigation-1234772918/.
[25] Andrea Adelson, NCAA Mulls Ways for Women’s Basketball Teams to ‘benefit financially’, ESPN (Apr. 7, 2024, 4:34 PM), https://www.espn.com/womens-college-basketball/story/_/id/39895247/ncaa-mulls-ways-women-teams-benefit-financially.
[26] Daniel Libit & Eben Novy-Williams, NCAA Names NIL Registry Partner After Five-Year Process, Sportico (Apr. 25, 2024, 3:53 PM), https://www.sportico.com/leagues/college-sports/2024/ncaa-nil-registry-administrator-teamworks-1234776842/.
[27] See Biden: ‘Even if You’re the Best, Women Are Not Paid Their Fair Share’ in Sports, Sports Business Journal (Apr. 17, 2024), https://www.sportico.com/leagues/college-sports/2024/ncaa-nil-registry-administrator-teamworks-1234776842/; Lindsay Crouse, Even Clarkenomics Can’t Solve Sexism in Sports, The New York Times (Apr. 18, 2024, 1:38 PM), https://www.nytimes.com/live/2024/04/16/opinion/thepoint?searchResultPosition=1#caitlin-clark-salary; Jacob Feldman, After Caitlin Clark, Women’s Sports Fans Are Done Compromising, Sportico (Apr. 16, 2024, 5:55 AM), https://www.nytimes.com/live/2024/04/16/opinion/thepoint?searchResultPosition=1#caitlin-clark-salary.
[28] Austin Meek, Seth Emerson, & Mitch Sherman, In College Football’s NIL and Transfer Portal Era, Does the 85-Scholarship Limit Matter?, The Athletic (Apr. 18, 2024), https://theathletic.com/5424013/2024/04/18/college-football-scholarship-limit-nil-portal/.
[29] See supra note 21.
[30] Michael McCann & Daniel Libit, Athletes’ Motion in NIL Case Pits Baker’s Words Against NCAA, Sportico (Apr. 4, 2024, 12:42 PM), https://www.sportico.com/law/analysis/2024/ncaa-nil-class-action-summary-judgment-1234773887/.
[31] Michael McCann, Direct NIL Payments Could Be Final Nail in Amateurism’s Coffin, Sportico (Apr. 8, 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/direct-nil-payments-colleges-ncaa-1234774185/.
[32] Ben Portnoy, College Admins Gear Up For Potentially New Budget Lines As House Case Potentially Nears Settlement, Sports Business Journal (Apr. 30, 2024), https://www.sportsbusinessjournal.com/Articles/2024/04/30/house-v-ncaa-settlement-college-administrators-react?hl=College+Admins+gear+up&sc=0&publicationSource=search.
[33] Id.
[34] See Michael McCann, Details Matter: NCAA Settling House and Carter Won’t End Legal Woes, Sportico (Apr. 30, 2024, 7:31 PM), https://www.sportico.com/law/analysis/2024/ncaa-settlements-house-carter-legal-problems-1234777448/.
[35] See Guy Lawson, ‘The Death of College Sports Will Be Fast and Furious:’ The Scandal That Could Kill the NCAA, RollingStone (Mar. 24, 2024), https://www.rollingstone.com/culture/culture-commentary/ncaa-college-sports-corruption-scandal-1234993227/.
[36] Michael McCann, FTC Noncompete Ban Looms Over Sports Execs, Coaches, NIL, Sportico (Apr. 23, 2024, 8:26 PM), https://www.sportico.com/law/analysis/2024/ftc-bans-noncompetes-sports-implications-1234776614/.
[37] Daniel Libit, IRS Letter an ‘Indictment’ of NIL Collectives’ Exempt Status, Sportico (Apr. 6, 2024, 3:43 PM), https://www.sportico.com/law/analysis/2024/ftc-bans-noncompetes-sports-implications-1234776614/.
[38] See Kathy Miller Perkins, Creative Conflict: Tips for Change Leaders, Forbes (Sept. 18, 2023, 7:33 PM), https://www.forbes.com/sites/kathymillerperkins/2023/09/18/embrace-constructive-conflict-tips-for-change-makers/?sh=13737461755f. See also Bernard Mayer, Staying With Conflict (1st ed. 2009); Bernard Mayer, The Dynamics of Conflict (2nd ed. 2012); Bernard Mayer, The Conflict Paradox (1st ed. 2015).
[39] Eric Jackson, We Sued the League for $700M: How the Cowboys Reshaped the NFL, Sportico (Mar. 11, 2024, 6:14 PM), https://www.sportico.com/leagues/football/2024/we-sued-the-league-for-700m-how-dallas-cowboys-reshaped-the-nfl-1234770381/.
[40] See OSU, WSU Finalize Financial Settlement With Departing Pac-12 Schools, Sports Business Journal (Mar. 26, 2024),https://www.sportsbusinessjournal.com/Articles/2024/03/26/pac-12-financial-agreement?hl=Pac-12&sc=0&publicationSource=search.
[41] Amanda Christovich, Everything You Need to Know About the Legal Attempts to Kill the ACC, Front Office Sports (Apr. 21, 2024, 11:39 AM), https://frontofficesports.com/everything-you-need-to-know-about-the-legal-attempts-to-kill-the-acc/; Eben Novy-Williams, FSU Seminoles Eye $327M From Revenue Bonds Amid ACC Fight, Sportico (May 4, 2024, 5:12 PM), https://www.sportico.com/business/finance/2024/fsu-athletics-bonds-seminoles-acc-fight-1234777813/.
[42] See Ben Portnoy, Same Network, New Questions As ESPN Extends College Football Playoff Deal, Sports Business Journal (Mar. 25, 2024), https://www.sportsbusinessjournal.com/Articles/2024/03/25/college-football-playoff?hl=college+football+playoff&sc=0&publicationSource=search; Doric Sam, SEC, Big Ten Would’ve Left CFP If New Contract Wasn’t Reached, Say Sankey and Petitti, Bleacher Report (Apr. 22, 2024), https://bleacherreport.com/articles/10118001-sec-big-ten-wouldve-left-cfp-if-new-contract-wasnt-reached-say-sankey-and-petitti#:~:text=SEC%20Football-,SEC%2C%20Big%20Ten%20Would’ve%20Left%20CFP%20If%20New%20Contract,Reached%2C%20Say%20Sankey%20and%20Petitti&text=Prior%20to%20reaching%20an%20agreement,Big%20Ten%20from%20the%20postseason.
[43] Chris Vannini, Helmut Communication, 2-Minute Warning Coming to College Football, The Athletic (Apr. 19, 2024), https://theathletic.com/5424958/2024/04/19/college-football-helmet-communication-2-minute-warning/#.
[44] See Nicole Auerbach, NCAA Changes Transfer Rules, Formalizing Era of Immediate Eligibility: How We Got Here, The Athletic (Apr. 16, 2024), https://theathletic.com/5419130/2024/04/16/college-football-transfer-portal-rule-changes/.
[45] See Scott Dochterman, How Name, Image and Likeness is Impacting NFL Draft Decisions: ‘That is Guaranteed Money’, The Athletic (Apr. 19, 2024), https://theathletic.com/5423892/2024/04/19/nil-college-football-nfl-draft-depth-salaries-contracts/.
[46] See Joe Moglia, The Time Has Come for Power Five Football to Break From NCAA, Sportico (Mar. 27, 2024, 5:55 AM), https://www.sportico.com/leagues/college-sports/2024/time-for-power-conferences-break-from-ncaa-1234772535/.
[47] See Daniel Libit & Eben Novy-Williams, College Football ‘Super League’ Pitch Deck Details Breakaway Plan, Sportico (Apr. 16, 2024, 2:00 PM), https://www.sportico.com/leagues/college-sports/2024/college-football-super-league-pitch-deck-1234775652/; See also Group of Five School Administrators Considering Separate Playoff, Sports Business Journal (Apr. 24, 2024), https://www.sportsbusinessjournal.com/Articles/2024/04/24/college-football-group-of-five-playoff?hl=college+football+playoff&sc=0&publicationSource=search.
[48] Id. See also Andrew Marchand & Stewart Mandel, Inside the College Football ‘Super League,’ One Powerful Group’s Idea to Fix a “dead’ System, The Athletic (Apr. 3, 2024), https://theathletic.com/5383639/2024/04/03/college-football-super-league-cst-realignment/.
[49] David Ridpath, Super League Proposal Can Be Giant Step Forward for College Sports, Sportico (Apr. 24, 2024, 8:30 AM), https://theathletic.com/5383639/2024/04/03/college-football-super-league-cst-realignment/.
[50] See Derek Reese, What is Promotion and Relegation?, World Soccer Talk (Apr. 29, 2023), https://worldsoccertalk.com/news/what-is-promotion-and-relegation-20230205-WST-417286.html; How is European Soccer Structured With Leagues and Cup Competitions?, Bundesliga, https://www.bundesliga.com/en/faq/what-are-the-rules-and-regulations-of-soccer/how-is-european-soccer-structured-with-leagues-and-cup-competitions-10568.
[51] See Tom Lamont, So, You Want to Buy a Pro Sports Team? Here’s How, GQ Sports (Jan. 16, 2024), https://www.gq.com/story/how-to-buy-a-pro-sports-team; Dan Moore, What’s Behind the Exploding Prices of Pro Sports Franchises?, The Ringer (Nov. 28, 2022, 8:28 AM), https://www.theringer.com/sports/2022/11/28/23472636/sports-team-franchise-valuation-sale-prices; See also Brendan Coffey, CVC IPO Offers Glimpse Into Private Equity Giant’s Sports Strategy, Sportico (Apr. 24, 2024, 5:55 AM), https://www.sportico.com/business/finance/2024/cvc-ipo-shows-sports-strategy-1234776582/; Jacob Feldman, Steve Ballmer Announces Halo Sports & Entertainment Portfolio, Sportico (Mar. 7, 2024, 10:00 AM), https://www.sportico.com/leagues/basketball/2024/steve-ballmer-halo-sports-entertainment-portfolio-1234769658/; Kurt Badenhausen, Harris, Blitzer Launch Youth Sports Firm Unrivaled as TCG Invests, Sportico (Mar. 27, 2024, 5:55 AM), https://www.sportico.com/business/commerce/2024/harris-blitzer-youth-sports-unrivaled-tcg-1234772563/.
[52] See Peter A. Carfagna, Negotiating and Drafting Sports Venue Agreements, (2nd ed. 2016).
[53] JohnWallStreet, Secondary, Tertiary Markets Investing Billions in Stadium Construction Projects, JohnWallStreet (Apr. 9, 2024), https://blog.johnwallstreet.com/p/secondary-tertiary-markets-investing-billions-in-stadium-construction-projects; See also Andy Peters, Colleges Race to Build Athletic Training Facilities and Expand Stadiums, CoStar News (Aug. 28, 2023, 6:16 PM), https://www.costar.com/article/1700575423/colleges-race-to-build-athletic-training-facilities-and-expand-stadiums.
[54] Brendan Coffey, How American Taxpayers Support Sports Teams and Athletes, Sportico (Apr. 17, 2024, 8:00AM), https://www.sportico.com/business/finance/2024/how-american-taxpayers-support-sports-1234775732/.
[55] See Frequently Asked Questions (FAQ), Purdue University, https://www.purdue.edu/trademarks-licensing/faq.php.
[56] See Eben Novy-Williams, Disputed T-Wolves Sale May Force NBA Rule Change, Silver Says, Sportico (Apr. 10, 2024, 4:58 PM), https://www.sportico.com/business/team-sales/2024/nba-adam-silver-timberwolves-sale-arod-lore-glen-taylor-1234774828/; Lev Akabas, NBA’s Load Management Policy Reduced Missed Games by Stars, Sportico (Apr. 16, 2024, 12:00 PM), https://www.sportico.com/leagues/basketball/2024/nba-awards-load-management-adam-silver-1234775529/.
[57] Michael McCann, The Last Dance of ‘Amateur’ March Madness, Sportico (Mar. 18, 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/march-madness-the-last-dance-1234771163/; The College Basketball Crown is the new tournament in town. See Eric Fisher, Fox Adds to Jumbled College Hoops Postseason with New Tournament, Front Office Sports (Apr. 3, 2024, 6:08 PM), https://frontofficesports.com/fox-adds-to-jumbled-college-hoops-postseason-with-new-tournament/.
[58] Jacob Feldman, NBA G League Team Ignite Shuts Down Amid NIL Changes, Sportico (Mar. 18, 2024, 12:00 PM), https://www.sportico.com/leagues/basketball/2024/nba-g-league-ignite-future-nil-recruits-1234771262/.
[59] Kurt Badenhausen, NBA Explores Europe Options, Including Launch of New League, Sportico (Mar. 11, 2024, 5:55 AM), https://www.sportico.com/leagues/basketball/2024/nba-europe-new-league-euroleague-1234770112/.
[60] See Michael McCann, ESPN, FUBO Push Dueling Arguments In Streaming Antitrust Case, Sportico (Apr. 11, 2024, 7:37 AM), https://www.sportico.com/law/analysis/2024/espn-fubo-antitrust-lawsuit-1234774891/; Brendan Coffey, FUBO CEO Says TV FEE ‘Bullying Has Got To Stop’, Sportico (Mar. 6, 2024, 5:55 AM), https://www.sportico.com/business/finance/2024/fubo-david-gandler-sports-tv-bullying-1234769411/; See also JohnWallStreet, ESPN, FOX, WBD Product Just Another Virtual in Crowded Entertainment Marketplace, JohnWallStreet (Feb. 14, 2024), https://blog.johnwallstreet.com/p/espn-fox-wbd-jv-just-another-virtual-in-crowded-entertainment-marketplace; JohnWallStreet, Local Influencers, Content Creators Now Necessary Part of Sports Media Ecosystem, JohnWallStreet (Apr. 2, 2024), https://blog.johnwallstreet.com/p/local-influencers-content-creators-now-necessary-part-of-sports-media-ecosystem.
[61] Report: NBA Looking to Alter How it Delivers Games in New Media Deals, Sports Business Journal (Apr. 22, 2024), https://www.sportsbusinessjournal.com/Articles/2024/04/22/nba-new-media-rights-plans?hl=Report%3a+NBA+looking+to+alter+how+it+delivers&sc=0&publicationSource=search.
[62] Andrew Marchand, Amazon Prime Has Framework Deal for NBA Broadcast Rights, Per Sources, Putting Pressure on TNT, NBC, The Athletic (Apr. 26, 2024), https://theathletic.com/5450064/2024/04/26/nba-broadcasting-rights-amazon-prime-video/.
[63] See Anthony Crupi, WBD Preps NBA Counteroffer As Sir Charles’ Waiting Game Continues, Sportico (May 3, 2024, 5:21 PM), https://www.sportico.com/business/media/2024/charles-barkley-tnt-wbd-preps-nba-counteroffer-rights-deal-1234777749/; Anthony Crupi, NBA Rights Renewal Race Could Pose Existential Threat to WBD, Sportico (Apr. 30, 2024, 4:59 PM), https://www.sportico.com/business/media/2024/nba-rights-renewal-race-warner-bros-discovery-existential-threat-1234777393/.
[64] See Eben Novy-Williams, NBA, WNBA Media Rights Better Off Sold Together: Adam Silver, Sportico (Apr. 11, 2024, 12:22 PM), https://www.sportico.com/business/media/2024/nba-wnba-media-rights-sold-together-separate-1234774937/. See also Anthony Crupi, NFL’s Rolapp Stands by TV in Face of Streaming Questions, Sportico (Mar. 21, 2024, 3:01 PM), https://www.sportico.com/business/media/2024/nfl-brian-rolapp-tv-streaming-super-bowl-1234771936/; Anthony Crupi, NFL Helps Peacock Book $1.1 Billion While Streamer’s Losses Narrow, Sportico (Apr. 25, 2024, 11:34 AM), https://www.sportico.com/business/media/2024/peacock-revenue-1-billion-nfl-wild-card-game-1234776809/; Dylan Manfre, Want A Day Off After the Super Bowl? So Does Roger Goodell, Sportico (Apr. 26, 2024, 4:09 PM), https://www.sportico.com/leagues/football/2024/roger-goodell-super-bowl-schedule-change-nfl-1234776986/; Brendan Coffey, NFL Teams Take Advantage of New Debt Limits, Float $1.5B in Loans, Sportico (Mar. 28, 2024, 6:38 PM), https://www.sportico.com/leagues/football/2024/nfl-debt-fitch-ratings-1234772992/.
[65] JohnWallStreet, Cord Cutting Could Be The Best Thing To Happen To Pro Leagues, JohnWallStreet (Apr. 23, 2024), https://blog.johnwallstreet.com/p/cord-cutting-could-be-best-thing-to-happen-to-pro-leagues.
[66] Werner Geyser, The Incredible Growth of eSports [+ eSports Statistics], Influencer Marketing Hub (Jan. 30, 2024), https://influencermarketinghub.com/esports-stats/.
[67] Adam Stone, Maximizing ROI: Lessons from Collegiate Esports Investments, EdTech (Feb. 23, 2022), https://edtechmagazine.com/higher/article/2022/02/maximizing-roi-lessons-collegiate-esports-investments#:~:text=Schools%20are%20mostly%20trying%20to,could%20be%20a%20revenue%20generator..
[68] See League Info, NBA 2k League https://2kleague.nba.com/league-info/.
[69] See Kevin Hitt, How Can Saudi Money Help Stabilize, Grow Esports over the Long Term?, Sports Business Journal (Apr. 4, 2024), https://www.sportsbusinessjournal.com/Articles/2024/04/04/saudi-esports?hl=how+can+Saudi+money+help+stabilize%2c+grow+esports&sc=0&publicationSource=search.
[70] See Flag Football, International Olympic Committee https://olympics.com/en/sports/flag-football/; Jason Wilson, NFL Sees 2k Playmakers As Both A Second-Screen Experience, Year-Round Engagement Tool, Sports Business Journal (Apr. 25, 2024), https://www.sportsbusinessjournal.com/Articles/2024/04/25/nfl-sees-2k-playmakers-as-second-screen-experience-and-engagement-tool?hl=NFL+sees+2k+players+as+both&sc=0&publicationSource=search.
[71] Official Rules, Madden Championship Series https://www.ea.com/games/madden-nfl/madden-nfl-24/compete/official-rules.
General
ESPORTS – LEX SPORTIVA OR LEX MERCATORIA?
This article is dedicated to the question of possible application of Lex Sportiva in esports related disputes by arbitrators. The article examines similarities between the traditional sports and e-sports, the sporting merits in those and the extent of possible applicability of Lex Sportiva. It also studies the “rules of the game” of esports from traditional sports perspective and other analogies and comparison between the two industries.
Table of Contents
Introduction
Esports is self-organizing, community-based activity with its own ecosystem. The debates on whether esports is sports or other activity are not fading. This question was already discussed at many levels by different organizations and scholars. The International Olympic Committee (IOC), while having made moves to recognise virtual gaming as a sport, limits itself to games that simulate actual sport, saying that video games that have a violent nature do not fall in line with its core values. It also has qualms with the lack of traditional physical skill found in esports.[1]
But what is inherent to esports in the same way as it is in traditional sports is the fact of competition, the event includes competition of two or more participants to find out the winner within the framework of game rules. Put differently, the meaning of competition is to find out the strongest.
It can be said that the current consensus achieved is as follows: esports is not traditional sport but is subject of interest of traditional sports. The question of the esports being sports-related activity within the light of Article R27 of the CAS Code of Sports-related Arbitration of CAS is questionable. From the merits perspective it seems to have the characteristics of sport, but for falling under the scope of R27 the characteristics are not enough. Consequently, the question arise, what type of dispute resolution shall be chosen for delivering the best possible quality in resolution of such disputes in order to safeguard the values, aims, sustainability of the industry as a whole.
Many authors have agreed over time that the most convenient form shall arbitration. For that reason, it already the World Esports Association (“WESA”) and the Arbitration Court for Esports was created in 2016. Is it enough? Do its rules reflect necessary mechanism to consider specificities of sports? This will be the subject for review here. For that reason, the following questions shall be raised:
- Is there Lex Ludica in esports?
- Are there any similarities of characteristics of esports and traditional sports industries?
- Is it subject to Lex Mercatoria or Lex Sportiva or both?
Raising and reviewing these questions will help to identify what requirements the dispute resolution system like arbitration shall take into consideration.
Is there Lex Ludica in esports?
Any sport includes a competition, which is being conducted under certain rules. These rules are inherent to the essence of the competition. there are voluntarily accepted by the parties wiling to compete under the specific framework therein. The match officials are granted an extent of autonomy to assess the processing of the competition/match in compliance with those rules. Ken Foster develops this concept as Lex Ludica and defines it as follows:
“The Lex Ludica is a concept that is employed to signify that there are sporting matters that are outside legal intervention, and as such are simply not suitable for arbitration by the Court. It is a zone of autonomy for match officials and federations in so far as they are dealing with the rules of the game, a Lex Ludica that is defined by its non-application by the Court of Arbitration for Sport.”[2]
In other words, these are the set of rules, which are purely under the autonomy of match officials and national federations and are not subject ot be legally challenged, in football – those are “Laws of the Game” adopted by IFAB, in basketball – “Official Basketball Rules” adopted by FIBA and so on.
However, the autonomy behind it is not absolute, the wrong application of the rules by match officials or the violations committed by the athletes may cause disciplinary consequences, which already fall into the scope of legal challenge subject to the pertinent regulations of the corresponding sport governing body. These rules already fall under scope of Lex Sportiva. The latter can be described as rules and regulations drawn up by the international sporting organisations and CAS arbitral awards that do not stand in isolation from these rules.[3]
Now back to esports, there is no any Lex Ludica as the competition is conducted in a closed virtual or augmented environment, and the “rules of the game” are the actual programmed rules available within the game. Therefore, there is no need of any Lex Ludica and/or autonomy of match officials appointed to safeguard the match processing. All the process can be regulated by simple anti-cheat. For esports athletes, in order to understand this a following example can be brought: many, if not all fighting games, which are competitive are locked at 60 frames per second.
This is required to properly establish, program and foresee the entire balance of the game: “startup frame” – the time period from when the attack starts, up until the active frames begin; “Attack Active Frames” – the time during which the attack motion has a hitbox; “recovery time” – the period after the active frames have ended, until the character can move again.[4]
Moreover, nowadays the developers provide the full spreadsheet of this data or built them in the game or the community collects this information on its own.[5]
Now, in additional to the skills sharpened over the years the competitive players clearly know the data of the game programmed therein, For instance how long is the recovery time of the opponent’s move, which was blocked by the player? This knowledge helps the player to execute the proper “punishment” in milliseconds. Nowadays, this data can be changed from time-to-time by the game developer’s updates issued over the air.
Players know that technical equipment can affect the input and output of the move in milliseconds, but never in frames, therefore the frames, hit-boxes and the animated physics therefrom make the game predictable and foreseeable for the players, therefore the compilation of this programmed conditions within the game are exactly the “laws of the game”. Therefore, there is no any match official to assess if the frames or animated physics work correctly within the game during the competition as everything is programmed in advance.
Before the competitions, the participants exactly know the version of the update of the game. Thus, the classical approach of Lex Ludica does not exist in esports due to virtual environment, which obeys the rules of the closed systems.
According to Dr. David S. Walonick:
“A closed system is one where interactions occur only among the system components and not with the environment. An open system is one that receives input from the environment and/or releases output to the environment. The basic characteristics of an open system are the dynamic interaction of its components, while the basis of a cybernetic model is the feedback cycle. Open systems can tend toward higher levels of organization (negative entropy), while closed systems can only maintain or decrease in organization”.[6]
In other words, the programmed environment is enough to exclude the need of match officials or their autonomy of interpretation within the game. This should not be confused with the competition rules, sanctioned by the competition organizer. The set of these regulations is the supra layer following the actual game/match process. In other words, even if there is Lex Sportiva in esports, the focal point to start are the competition rules sanctioned by the competition organizer, which can be the publisher, or independent organizer entitled to organize such competition.
In traditional sports, the violation of Lex Ludica generally leads to disciplinary sanctions, which subsequently fall under the disciplinary law. In esports, it is different, as these laws are framed and programmed, they fall under “cheating” or “technical cheating” (edoping)[7].
Why is this important?
It was already mentioned, that Lex Ludica is part of the Lex Sportiva, which is compiled not only by the rules and regulations of the particular sports, but also the CAS awards. Over the years CAS established a set of conduct, which may be perceived as minimum requirements in sports industry subject to the relations being disputed at its level. For that and in order to understand if that set of conduct can be applied to the esports industry, it is needed to be understood if esports has characteristics similar to traditional sports compared to traditional sports.
Similarities of characteristics of esports and traditional sports industries.
The similarities can be divided into two categories – 1) category of organizing the events, 2) characteristics inherent to athletes. For the sake of comparison, the football industry shall be taken into comparison from traditional sports and “Tekken World Tour 2024” (TWT Rules)[8], sanctioned by Bandai Namco Entertainment America Inc. (BNEI) as an esports event. Of course, the induction method is not correct to assert completely, but for the reference it is more than enough as these principles can be found in vast majority of organized sports.
- From the event organizing standpoint – competition[9], integrity requirements (anti-doping,[10] fight against match fixing[11], and other disciplinary matters), the employment or commercial matters (including broadcasting)[12], status of the athlete,[13] fast pace of the industry (transfers, quantity of events)[14]; and
- From the athletes’ standpoint – development of skills inherent to the athlete specifically, image (personality) rights of the athlete,[15] freedom of association (establishing and/or joining trade union) or employment (or service providing)[16], commercial matters (including sponsorship and/or merchandizing), very short period of career,[17] high density and level of stress.
Regarding the density and level of stress it should be underlined that it is a common opinion that eSports is not physically exhausting or intense. However, a study amongst German eSports players showed that they are exposed to high levels of stress which are common for traditional sports. Up to 400 precise clicks on keyboard and mouse per minute are not uncommon.
This uses different brain regions that are not accessed that much in any other sport. Furthermore, it was found that the cortisol level was similar to that of a racing driver. Also, a high pulse of 160-180 beats per minute was measured, which is almost on par with a marathon runner.[18] In football, the bpm reaches 192 ± 9.[19]
These characteristics are of a paramount importance as they serve as fundamental pillars for the reasons of creating CAS. One of the reasons of creating CAS was the need to create a specialised authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure.[20] CAS has been applying general principles of law to sporting institutions, and it has been also creating specific principia sportiva.
Secondly, the CAS plays a significant role in interpreting sports law, thus influencing and conditioning rulemaking activity by sporting institutions. Thirdly, the CAS greatly contributes to the harmonization of global sports law, also because it represents a supreme court, the apex of a complex set of review mechanisms spread across the world: for instance, doping case decisions issued by national anti-doping panels can be appealed to the CAS.[21]
Apart from the controversial topic if CAS is entitled to accept the dispute under article R27 or R47 if the requirements stipulated therein are met, this derives us to the point where it can assumed that the arbitration in esports can at least take into consideration the standards developed by CAS in its jurisprudence.
For the proper functioning of the industry within the light of the legitimate expectation, it’s worth to highlight the following already developed standards: the employment contract cannot be terminated or the salary be reduced upon sporting performance,[22] principle of interpretation of the rules and regulations,[23] definition of the “supporter”[24] and alike awards, which have already set a long standing jurisprudence.
This complex of approach envisaged in those awards may be applied to comfort the uniformity of the industry, whilst taking into consideration the similarities of the industries mentioned above and create its own jurisprudence subject to specificities of esports not falling under the scope of the abovementioned similarities. For instance, the specificity of media rights belonging to the developer/publisher. This fundamentally different approach to media rights management makes competitive gaming unique in comparison to almost every other professional sport. Critics claim that this difference prevents the esports industry from maximizing its potential to profit from the leveraging of media rights for its competitions.[25]
Now, coming back to the arbitration esports. In esports as in traditional sports, there are different arbitration courts available.[26] Some authors correctly highlight that an eSports arbitration court would have a more thorough understanding of specific games and their rules and be able to reach the appropriate decision in cheating allegations.[27] But, these principles derive from the fair competition in sports and are used in traditional sports for thousand of years. There is no need in inventing wheel again, where there is already well-established jurisprudence by CAS in terms of traditional sports. These principles deriving from Lex Sportiva are inherent to any event engaging a competitive element between two or more parties with the aim of winning in such event.
WESA arbitration court was established in 2016. However, due to WESA’s close connection to the largest eSports company in the world, the ESL (Electronic Sports League), many players felt that it was not an independent institution so that the WESA Arbitration Court never succeeded.[28] It should also be noted that some standalone relations fall under the CAS as well, for instance the Seoul based International ESports Federation (IeSF) is a signatory party of World Anti-Doping Agency, and stipulates CAS competence CAS in case of an appeal related to anti-doping rules violations.[29]
The same TWT rules set an arbitration jurisdiction clause American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes.[30] Thus, we see that the esports arbitration is not systemized. But this a different topic of discussion. The question is what law should be applied by an arbitrator, when dealing with a dispute related to an esports, what law should be the focal point for application: Lex Sportiva, Lex Mercatoria or both?
Is the esports subject to Lex Mercatoria only or Lex Sportiva only or both?
Before answering to this question, it should be noted that Lex Sportiva is a part of Lex Mercatoria in global sense. Both terms are part of transnational legal order. Despite appearances, the term Lex Sportiva is neither old nor proper Latin but relatively recently created from the term Lex Mercatoria. By making this connection, Lex Sportiva positions itself in the context of transnational legal orders and by way of comparing itself to Lex Mercatoria, lex Sportiva draws on the pedigree of its older and more well-established cousin.[31]
Consequently, taking into consideration the similarities mentioned above, the following can be assumed. in terms of the disputes related to:
- purely sporting factors such as doping, “edoping”, other disciplinary matters – Lex Sportiva is to be applied;
- employment or service providing – Lex Sportiva and + are to be applied, subject to the specificities pertaining the facts at hand and the connection of regulations between the event organizer, federation and the athlete;
- commercial matters, such as intellectual property, broadcasting and sponsorship – Lex Mercatoria is to be applied.
Put differently, Lex Sportiva can be applied to the extent, which esports shall permit by establishing the necessary legal framework for it.
Conclusion
The creation of the Supreme Court of world ESports as a phenomenon, alike CAS for traditional sports might help to establish its own jurisprudence comforting a uniformity in the industry. Until, then the arbitrators are free to consider the well-established jurisprudence of CAS, which are cornerstone of the industry and the facts at hand and the characteristics of the dispute, and its object have similarities with the dispute of esports. Eventually, the rich arbitration practice will filter the differences between the characteristics of the industries and finally resolve the self-identification of esports in between the commercial activity and the sports industry.
[1] Camilleri Neil & Huk Iryna-Mariia Mykhailivna, “CAS for esports: reality or utopia?” Lex Sportiva, M. M. (2023) (1), 19, 20
[2] Ken Foster, ‘Lex Sportiva and Lex Ludica: the Court of Arbitration for Sport’s Jurisprudence’, in: Siekmann, R., Soek, J. (eds) ‘Lex Sportiva: What is Sports Law?’ (ASSER International Sports Law Series. T.M.C. Asser Press, 2012) 144, https://doi.org/10.1007/978-90-6704-829-3_7 /
[3]Antoine Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19(6) European Law Journal 822, 827.
[4] https://game.capcom.com/cfn/sfv/column/131432?lang=en accessed 26 May 2024
[5] Street fighter 6, available at https://www.streetfighter.com/6/character/jp/frame accessed 26 May 2024
Tekken 8, available at https://tekken8framedata.com/ accessed 26 May 2024
[6] David S. Walonick, ‘Organizational theory and behavior’(1993).
[7] Leonid Shmatenko, ‘eSports — “It’s In The Game”: The Naissance of A New Field of International Arbitration’ in Carlos González-Bueno (ed), 40 under 40 International Arbitration (Dykinson SL 2021) 393, 402
[8] https://www.bandainamcoent.com/legal/community-events/official-rules-twt accessed 25 May 2024
[9] Cf. art. 45 of FIFA World Cup Qatar 2022 regulations, adopted on 11 Aug. 2022 by the Bureau of the FIFA Council (FIFA WCQR) with art. 2 of TWT Rules, adopted on 15 March 2024 by BNEI
[10] Cf. ch. III of FIFA Anti-Doping Regulations adopted on 25 June 2020 by FIFA Council with para. 13 of art. 10 TWT Rules
[11] Cf. art. 20 of FIFA Disciplinary Code adopted 16 December 2022 by FIFA Council with para. 14 of art. 10 TWT Rules
[12] Cf. art. 44 of FIFA WCQR and para.3 of art. 7 and para. 4 of art. 11 of TWT Rules
[13] Cf. art. 2 of FIFA Regulation and Status and Transfer of players adopted on 17 Dec. 2023 by FIFA Council with art. 6 of TWT rules
[14] In football, season is ongoing every year, see FIFA Worldwide Registration Periods Calendar Available at https://digitalhub.fifa.com/m/32d2905602f855be/original/Transfer-Window-Calendar.pdf accessed 26 May 2024 and TWT started in 2017 and is organized annually, see https://liquipedia.net/fighters/Tekken_World_Tour
[15] These relations are purely of civil legal and contractual nature.
[16] For instance, ‘League of Legends Championship Series Players Association’ founded in 2017, https://www.lcspa.org/about accessed 25 May 2024, in football – FIFpro, founded in 1965, https://fifpro.org/en/who-we-are/our-organisation/history accessed 25 May 2024
[17] In e-sports, the athletes career starts to fade in mid 20s. See, Franz Christian Irorita, Retirement in esports: Why do esports players retire so early? (2020)Available at https://clutchpoints.com/retirement-in-esports-why-do-esports-players-retire-so-early accessed25 May 2024.
In football the retirement age is between the mid-30s and early 40s. See, Aidan White, ‘The Retirement Experiences of Former Professional Footballers: An Exploratory Study’ (Doctoral dissertation, Dublin, National College of Ireland, 2019), 7
[18] Sebastian Block and Florian Haack, ‘eSports: a new industry’ (2021) 92 SHS Web of Conferences, https://doi.org/10.1051/shsconf/20219204002 , 3
[19] Neil Dallaway, ‘Movement Profile Monitoring in Professional Football’ (September 2013) School of Sport, Exercise and Rehabilitation Sciences, University of Birmingham, 21.
[20] https://www.tas-cas.org/en/general-information/history-of-the-cas.html#:~:text=Another%20reason%20for%20setting%20up,flexible%2C%20quick%20and%20inexpensive%20procedure. accessed 25 May 2024
[21] Lorenzo Casini, ‘The Making of a Lex Sportiva by the Court of Arbitration for Sport’, in Siekmann and Soek (eds), Lex Sportiva: What is Sports Law? 157, https://doi.org/10.1007/978-90-6704-829-3_8
[22] CAS 2009/A/1784, MSK Zilina v. Velimir Vidic, award of 27 August 2009
CAS 2012/A/2844, Gussev Vitali v. C.S. Fotbal Club Astra & Romanian Professional Football League (RPFL), award of 7 June 2013
CAS 2010/A/2049, Al Nasr Sports Club v. F. M., award of 12 August 2010
[23] CAS 2020/A/7008, Sport Lisboa e Benfica SAD v. Fédération Internationale de Football Association (FIFA) (180009) & CAS 2020/A/7009, Sport Lisboa e Benfica SAD v. FIFA (180010), award of 10 May 2021
CAS 2017/A/5006, Harold Mayne-Nicholls v. FIFA, award of 14 July 2017
CAS 2019/A/6330, Sara Castillo Martínez v. World Skate, award of 18 February 2020
[24] CAS 2007/A/1217, Feyenoord Rotterdam v. UEFA, award of 20 April 2007
CAS 2014/A/3944, Galatasaray Sportif Sinai A.S. v. UEFA, award of 30 July 2015
[25] John T. Holden and Thomas A. Baker III, ‘The Econtractor? Defining the Esports Employment Relationship’ (2019) 56(2) American Business Law Journal 397.
[26] It should be noted that in United States U.S. Olympic Committee (USOC) bylaws designate the American Arbitration Association to administer arbitrations between the USOC and athletes or representative sports organizations regarding (1) athlete eligibility and (2) a National Governing Body’s (NGB) franchise status, or recognition as an Olympic sport.
[27] Ryan Boonstra, ‘Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry’ (2018) 10(1) Arbitration Law Review 106.
[28] Shmatenko, ‘eSports — “It’s In The Game”’ in González-Bueno (ed), 40 under 40 International Arbitration 394
[29] Ibid. 405
[30] TWT Rules, art. 13(b)(III)
[31] Johan Lindholm, ‘Cour Suprême du Sport Mondial’, in: ‘The Court of Arbitration for Sport and Its Jurisprudence’ (ASSER International Sports Law Series. T.M.C. Asser Press, 2019) 8, https://doi.org/10.1007/978-94-6265-285-9_1
General
Russian Esports Federation’s World Championship Qualifier Boycott Over Flag Ban
In 2024, Russian esports athletes will abstain from the International Esports Federation (IESF) World Championship qualifiers due to a prohibition on displaying their national flag. This decision was confirmed by Dmitry Smith, President of the Russian Esports Federation (RESF), who criticized the IESF Secretariat’s actions as illegitimate.
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IESF’s Decision
The conflict stems from IESF’s Secretariat mandating that Russian athletes either participate without their national flag or withdraw entirely. This ultimatum is in line with broader sanctions and rulings imposed due to Russia’s invasion of Ukraine. Smith expressed frustration over this directive, pointing out what he sees as bureaucratic delays and pressure tactics aimed at RESF.
Chronology of Events
The issue first arose in August 2023 when the IESF permitted Russian teams to compete internationally under their national anthem and flag. This decision faced immediate backlash from the Ukrainian Esports Federation (UESF), which threatened to leave IESF. Subsequently, in January, following Ukraine’s complaint about RESF’s activities in newly incorporated Russian territories, IESF suspended Russia’s membership.
On 27 April 2024, RESF received formal notice of their suspension for refusing to sign the no-flag agreement. Despite presenting legitimate documents to IESF’s Board on 7 May, the Secretariat maintained its stance, issuing an ultimatum for compliance by 15 May.
International Reaction and Implications
The decision has caused controversy mainly among Russian officials and athletes, but it is seen as a necessary measure by many in the international community to uphold sanctions. The IESF, consisting of 143 member countries, aims to enforce fair play and compliance with international sports regulations. The qualifiers for the 2024 World Championship, including titles such as Counter-Strike: Global Offensive, Dota 2, Tekken 7, eFootball, PUBG Mobile, and Mobile Legends: Bang Bang, are set to begin in June. With Russian teams opting out, the competitive landscape is set to shift, potentially impacting the tournament’s outcomes and viewership.
Legal and Ethical Considerations
The Russian boycott highlights the complex intersection of sports, politics, and international esports law. IESF’s decision to enforce the flag ban aligns with broader trends of geopolitical influence affecting global sports governance. While the Secretariat’s actions are framed as compliance with sanctions, the RESF argues they violate the principles of fair competition and non-discrimination in sports. However, these measures are supported by rulings from bodies like the IOC, which have imposed restrictions on Russia in response to its geopolitical actions.
Further Developments
The resolution of this dispute remains uncertain, but most likely, Russian athletes will not be present in Riyadh later this year. The IESF General Assembly, where all member nations can participate, will play a crucial role in determining RESF’s future in international esports. The outcome will not only affect Russian athletes but also set a precedent for how international sports federations navigate political conflicts.
Conclusion
The boycott by Russian esports athletes highlights the ongoing struggle between national interests and international sports governance. As esports continues to grow in prominence, the IESF’s handling of such disputes will significantly influence its credibility and the sport’s integrity. The broader esports community will be watching closely to see how this situation evolves and what it means for the future of competitive gaming on the global stage. The decision to enforce a flag ban is not controversial in the context of international sports law and geopolitical sanctions, but it remains a point of contention for Russia, reflecting the broader political tensions at play.
General
ESIC Unveils FairPlay Academy: A Pioneering Effort in Esports Integrity and Ethics
The Esports Integrity Commission (ESIC) has launched the FairPlay Academy. This innovative online learning platform aims to provide critical educational programs to esports participants and stakeholders worldwide.
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A Vision for Integrity
The FairPlay Academy represents a significant leap forward in ESIC’s ongoing mission to uphold integrity across the global esports landscape. By offering an extensive range of free tutorials, the platform seeks to educate players, coaches, organizers, and fans on maintaining the highest standards of conduct and fair play. This initiative is grounded in the belief that knowledge and education are essential to fostering a culture of integrity in esports.
Stephen Hanna, CEO of ESIC, emphasized the importance of the FairPlay Academy, stating,
“The introduction of the FairPlay Academy marks another step forward in our ongoing efforts to champion integrity within esports. With the Anti-Corruption Tutorial leading the way, we are laying the foundation for a comprehensive educational framework that will empower stakeholders across the global esports industry”
Launching with the Anti-Corruption Tutorial
The FairPlay Academy’s first offering, the ESIC Anti-Corruption Tutorial, was launched on 17 April 2024. This comprehensive tutorial is designed to confront the challenges of corruption head-on, educating participants about the crucial expectations ESIC holds for those competing in esports and their obligations to the industry. Through engaging, self-paced learning modules, the tutorial delves into the complexities of corruption, including match-fixing and betting fraud (Esports News UK) (Esportsinsider).
Participants who complete the Anti-Corruption Tutorial will gain a foundational understanding of anti-corruption measures and practical strategies to mitigate these threats. The goal is to equip them with the insights and tools necessary to uphold the integrity of esports competitions.
Addressing Critical Issues in Esports
The launch of the FairPlay Academy comes at a crucial time for the esports industry, which has seen significant growth and increasing scrutiny over issues like match-fixing and betting fraud. These challenges underscore the need for robust educational resources to guide participants in maintaining ethical standards.
Esports has quickly become one of the fastest-growing entertainment sectors, with multi-million dollar prize pools and professional players enjoying salaries, health plans, and other benefits comparable to traditional sports athletes. However, with this growth comes the heightened risk of corruption and unethical behavior. The FairPlay Academy aims to address these risks by providing targeted education on critical issues facing the industry (Casino.Guru).
Expanding the Educational Framework
The FairPlay Academy is poised to become a dynamic hub for educational content, with plans to continuously expand its library of tutorials. Future offerings will cover a wide array of topics essential to the global esports ecosystem, including:
- Anti-Doping: Educating participants on the dangers and consequences of doping, and promoting a fair playing field.
- Responsible Gaming: Providing insights into maintaining a healthy balance between gaming and other life activities, and recognizing the signs of gaming addiction.
- Professional Conduct: Offering guidelines on appropriate behavior and ethical standards for players, coaches, and organizers.
- Conflict of Interest Management: Helping stakeholders identify and manage potential conflicts of interest that could undermine the integrity of competitions (Esports News UK) (Esportsinsider).
Each tutorial is crafted to ensure relevance and value to esports participants, ensuring that they are well-equipped to navigate the challenges and opportunities of the competitive gaming landscape.
A Collaborative Effort
The success of the FairPlay Academy relies on collaboration within the esports community. ESIC invites all stakeholders to participate in the Academy’s programs and contribute to its ongoing development. By working together, the community can build a stronger, more ethical foundation for the future of esports.
Tackling Match-Fixing and Betting Fraud
Match-fixing and betting fraud have been persistent issues in esports, with several high-profile cases involving players who have manipulated betting results for personal gain. These activities not only undermine the integrity of competitions but also erode trust among fans and participants (Casino.Guru).
The FairPlay Academy’s focus on anti-corruption education is a direct response to these challenges. By providing comprehensive tutorials on the risks and realities of corruption, ESIC aims to prevent such activities and promote a culture of transparency and fairness.
A Commitment to Responsible Gambling
As esports betting becomes increasingly popular, the FairPlay Academy also addresses the need for responsible gambling education. This includes teaching participants about the risks associated with betting and providing strategies to avoid pitfalls like betting abuse and gambling addiction (Casino.Guru).
Future Developments
Looking ahead, ESIC plans to continuously update and expand the FairPlay Academy’s offerings to stay ahead of emerging threats and challenges in the esports industry. This commitment to ongoing education and improvement is vital to maintaining the integrity and ethical standards of esports as the industry evolves.
Conclusion
The launch of the FairPlay Academy by ESIC marks a pivotal moment in the effort to promote integrity and ethics in esports. By providing accessible, high-quality educational resources, the Academy aims to empower all stakeholders to uphold the highest standards of conduct and fair play. As the esports industry continues to grow, initiatives like the FairPlay Academy will play a crucial role in ensuring its integrity and long-term success.
For more information about the FairPlay Academy and to access the Anti-Corruption Tutorial, visit FairPlay Academy.