Employment Status of Esports Players in Argentina: A Legal Analysis

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