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:

1. 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.

1. 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:

1. purely sporting factors such as doping, “edoping”, other disciplinary matters – Lex Sportiva is to be applied;
2. 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;
3. 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