Introduction

The evolving landscape of esports in Argentina raises critical questions about the employment status of esports players. Should the relationships between esports players and their teams or clubs be classified under employment law, thus affording players the protections typical of employees? Or should these relationships be treated as contractual arrangements between independent contractors? This analysis delves into these questions, drawing on specific articles from the Argentine Labor Contract Law (Ley de Contrato de Trabajo, LCT) and other relevant legal norms to provide a comprehensive examination of the legal framework governing these relationships.

Legal Classification of Player-Team Relationships (Employment Status of the Esports Player)

The classification of player-team relationships and the employment status is crucial in determining the applicability of employment rights and obligations. It affects the protections available to players and the liabilities and responsibilities of esports organizations. This section explores the key elements that characterize these relationships, using Argentine labor laws as a reference.

Voluntariness

Article 22 of the LCT states:

“Article 22 – Employment relationship.

There shall be an employment relationship when a person performs acts, executes works or renders services in favor of another, under the dependence of the latter voluntarily and against payment of a remuneration, whatever the act that gives rise to it.”

Players in esports often voluntarily choose which teams they join. However, this freedom does not necessarily distinguish an employee from an independent contractor, as both can enter agreements voluntarily. The critical factor is the ability of players to terminate their contracts and switch teams, which can be constrained by non-compete clauses and other contractual stipulations typically found in employment scenarios​ (Infoleg)​​ (Mondaq)​.

Remuneration

The remuneration model in esports is complex. While teams generate revenue from various sources such as sponsorships, broadcasting rights, and tournament winnings, players are often salaried as required by the definition of a salary by Article 103 of the LCT:

“Article 103. Definition.

For the purposes of this law, remuneration means the consideration to be received by the worker as a consequence of the employment contract. Said remuneration may not be less than the minimum living wage. The employer owes the worker the remuneration, even if the latter does not render services, by the mere circumstance of having placed his labor force at the disposal of the former.”

According to Article 103 of the LCT, remuneration must be regular and uninterrupted, and should not depend solely on the direct outcomes of specific competitions. This structure is akin to traditional employment, where salaries and benefits are provided as compensation, irrespective of the individual’s day-to-day productivity.

Personal Performance

Esports heavily relies on the personal skill and performance of its players, aligning with Article 21 of the LCT, which discusses the personal nature of work services. The high level of personal skill required and the specific selection of players based on these skills suggest an employment relationship rather than a contractual agreement with a service provider​ (Argentina.gob.ar)​​ (Mondaq)​.

Dependency

Dependency is one of the strongest indicators of an employment relationship:

Juridical Dependency: Teams exercise significant control over players’ schedules, training, and strategies, reflecting an employer-employee relationship as defined under Article 23 of the LCT, which emphasizes subordination as a defining characteristic of employment.

Economic Dependency: Players’ primary source of income typically comes from their teams. This dependence is governed by Article 90 of the LCT, indicating an employment relationship where remuneration should be fixed and periodical, not fluctuating based on independent contract terms​ (Infoleg)​​ (Argentina.gob.ar)​.

Applicability of Conventional Labor Laws to the Employment Status of an Esports Player

Working Hours and Rest Periods

Esports players often face demanding schedules, including irregular hours and international travel, complicating the application of standard labor laws like Law N°11.544. This law, along with Article 197 of the LCT, regulates overtime and mandatory rest periods but does not account for the unconventional work patterns in esports. Adapting these provisions to fit the esports context, possibly through a special regime within the labor law, is crucial for protecting players while acknowledging the unique nature of their profession​ (Argentina.gob.ar)​​ (Mondaq)​.

Contractual Considerations

The use of fixed-term contracts in esports is common and must comply with Articles 90-95 of the LCT, which govern temporary employment. These contracts should be structured to ensure they do not circumvent employment protections, providing stability for players and clarity regarding renewal and termination conditions​ (Infoleg)​​ (Argentina.gob.ar)​.

Specific Legal Frameworks and Protections

Given the unique elements of esports, existing regulations such as Law N°20.160 and CCT 430/75, which govern traditional athletes’ relationships, could serve as models. These laws address issues like image rights and the transfer and loan of athletes, pertinent to esports. However, the dynamic and digital nature of esports, characterized by frequent international competitions and online streaming, calls for tailored regulations addressing these specific aspects​ (Mondaq)​​ (Mondaq)​.

Employment Status of Minors

The involvement of minors in esports is significant, and the legal framework surrounding their employment is particularly stringent. Articles 187 of the LCT and Law N°26.390 adjust the conditions under which minors can be employed, focusing on protecting them from exploitation. These provisions must be rigorously applied within the esports industry to ensure young players are not only legally employed but also provided with appropriate working conditions that do not hinder their development or education​ (Infoleg)​​ (Argentina.gob.ar)​.

Discrimination and Harassment

The esports environment is not immune to issues of discrimination and harassment. Ensuring compliance with Law N°23.592 against discriminatory acts and fulfilling obligations under international conventions like CEDAW (ratified through Law N°23.179) is essential. Esports organizations must develop and enforce policies that actively combat harassment and discrimination, creating a safe and inclusive environment for all participants​ (Argentina.gob.ar)​​ (Mondaq)​.

Unionization of Esports Players

The potential for unionization in esports represents a significant shift towards recognizing players as employees with collective bargaining rights, as supported by Law N°23.551. However, the diverse and international nature of teams, coupled with the industry’s rapid evolution, presents unique challenges to traditional union models. Adapting these to the esports context is necessary to provide effective representation and support for players​ (Mondaq)​​ (Mondaq)​.

Conclusion

The relationship between esports players and organizations in Argentina necessitates careful legal classification to ensure the proper application of labor laws and protections. The evidence suggests that many esports players could be classified as employees, affording them significant legal protections. As the industry continues to evolve, so must the legal frameworks that govern it, potentially through the development of regulations specifically tailored to the unique characteristics of esports. This evolving legal landscape requires ongoing analysis and adaptation to adequately address the emerging challenges and ensure a fair, equitable, and legally compliant esports environment in Argentina​ (Infoleg)​​ (Argentina.gob.ar)​​ (Mondaq)​​ (Mondaq)​.

Image source: Angela Reyes on Unsplash

Case Background

Charles ‘MoistCr1TiKaL’ White Jr., the founder of Moist Esports, has publicized the organization’s struggles with obtaining U.S. visas for its players. Despite qualifying for a major tournament in Los Angeles, the team faced repeated visa rejections. The U.S. immigration authorities challenged the veracity of the team’s professional status and ranking, leading to initial visa applications being denied. Subsequently, the players were compelled to abandon their team visas and individually apply for B-1 business visitor visas instead of P-1 or O-1 visas, which are typically issued for attending conferences or consulting with business associates. The last-minute approval of these visas allowed the players minimal preparation time for the tournament.

Legal Foundations of the Dispute

The lawsuit is built on allegations of procedural mishaps and the potential misinterpretation of eligibility criteria under U.S. immigration laws concerning professional esports players. As detailed in “An Overview of Esports and United States Immigration Law,” the specific visa requirements and criteria for esports athletes are intricate and often subject to the discretionary powers of immigration officials. The denial of P-1A visas, intended for internationally recognized athletes, to Moist Esports players suggests a significant disconnect between the recognition of esports in legal versus operational realms of immigration policy.

Challenges in Legal Proceedings

The case unfolds under the shadow of sovereign immunity, which may limit the scope of recoverable damages against a government agency, as hinted by MoistCr1TiKaL’s commentary on constitutional constraints. The discretionary nature of visa issuance, particularly under the P-1A category, often leaves substantial room for subjective decision-making by immigration officers. This aspect makes legal challenges arduous and sets a high bar for proving any claims of improper handling or bias in visa processing.

Economic Impact and Organizational Disruption

The visa denials and subsequent legal battles have wrought considerable financial strain on Moist Esports. The inability to compete under the organization’s banner not only resulted in direct financial losses but also diminished potential sponsorship and earnings from the tournament. These disruptions underline the significant stakes that immigration decisions hold over esports organizations, which operate in a rapidly globalizing competitive field.

Concluding Observations

This lawsuit may serve as a critical juncture for the recognition and handling of esports professionals within U.S. immigration frameworks. It challenges the consistency of the application of immigration laws to esports athletes, a relatively new area where traditional sports and modern digital competitions intersect. Whether or not Moist Esports succeeds in its legal claims, the outcome will likely influence future policy considerations and the operational practices of immigration authorities dealing with similar cases.

Image source: VisaService.de

Introduction

The esports industry in Chile, mirroring the global surge in digital sports, has seen substantial growth but not without its share of legal complexities in the field of esports employment law. A significant ruling by the Second Labor Court of Santiago on 30 March 2021, under case file Nº-O-4046-2020, challenges the traditional understanding of employment relationships within this field, being significantly different from what the French courts ruled in 2024. This ruling has denied the existence of an employment relationship between an esports team and its players based on the criteria of subordination and dependency, sparking wide discussions in the legal and esports communities across Chile and Latin America.

Background of the Case

The case arose from a dispute over whether esports players should be considered employees of the esports teams they play for, entitled to corresponding labor protections and benefits. The court’s decision hinged on the lack of sufficient evidence of subordination and dependency, key elements that characterize an employment relationship under Chilean labor law. This judgment has significant implications, as it contrasts with the growing trend in other jurisdictions to recognize such relationships within the esports context.

Legal Framework of Esports Employment and Court’s Rationale

In Chile, the labor context is governed by the principle of the primacy of reality, which aims to address discrepancies between the formal contractual arrangement and the actual practice. In the esports industry, where specific regulations are lacking, teams often engage players under Service Provision contracts. However, even with such contracts, an employment relationship can be established if the conditions of subordination and dependency, as outlined in Article 7 of the Labor Code, are met.

Article 7 of the Labor Code of Chile states:

“An individual employment contract is an agreement by which the employer and the worker mutually obligate themselves, the latter to provide personal services under the dependence and subordination of the former, and the former to pay a specified remuneration for these services.” Translation by the Author

The court’s dismissal of an esports employment relationship in this case was based on two main points:

1. Independence of Players: The court found that esports players could perform independently from the team, a finding that deviates from the reality where players often have to adhere to strict training schedules and team strategies.
2. Lack of Fixed Hours: The absence of fixed working hours was seen as indicative of a non-employment relationship, despite the players’ involvement in continuous and permanent activities, including training and participation in scheduled tournaments.

However, these findings overlook the structured nature of professional esports, which involves rigorous training regimes, adherence to team tactics, and participation in leagues that operate on fixed schedules.

In the opinion of Chilean legal scholars, the court erred in both key points. First, it suggested that an esports player could perform independently from the team, and secondly, it noted the absence of fixed work hours or continuous and permanent work. Diego Pinto Bravo argues that this reasoning greatly deviates from the actual conditions under which esports are conducted in the region. For instance, a League of Legends player necessarily belongs to a team to compete and must adhere to numerous contractual obligations such as daily training, maintaining a minimum division in the game, obeying coaches’ orders, and exclusivity.

Furthermore, Diego Pinto Bravo contends that the concept of subordination and dependency is already regulated under our labor code, specifically articulated for football players within Articles 152 bis A and subsequent sections of the Labor Code. These articles establish a labor relationship between the parties that operate under the same conditions, with the same characteristics, and following the same elements discussed in these legal proceedings.

In his view, the second argument is equally flawed based on practical experience in esports. It completely overlooks the fact that the Entel Honor League and its seasons begin each year in January, comprising two tournaments; one from January to April, and the other from July to October. This schedule necessitates that players engage in continuous and permanent work for ten out of twelve months each year, involving daily training, weekly tournaments, constant competition, and content creation—a logic that was severely neglected by the judges in their reasoning.

Comparative Legal Perspectives and Future Outlook

As mentioned in the introduction, this decision, which admittedly was taken in 2021, starkly contrasts with the legal trends in jurisdictions like France, where the relationships between esports teams and players are increasingly acknowledged as employment, prompting legislative adaptations tailored to the unique aspects of esports. The ongoing legal debates and pending appeals in the Chilean Supreme Court are anticipated to further evaluate the employment status of esports players in Chile.

Conclusion

The case underscores a critical need for specialized legislative frameworks in Chile that recognize the distinctive attributes of esports and esports employment. These frameworks should equitably balance the rights and protections for players with the operational realities of esports teams. Proactive legal and policy reforms are essential to support the sustainable growth of esports, ensuring that Chile and, by extension, Latin America can adequately navigate the evolving legal landscape of this global phenomenon.

With material from: Estado Diario