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Labor&Immigration

Frequently Asked Questions (FAQs): U.S. & Indonesia Esports Immigration Law

Welcome to the world of esports and its ever-evolving legal landscape! This FAQ aims to equip aspiring and established esports players, teams, and organizations with information on navigating immigration processes related to international esports competition and careers.
This collaborative effort is brought to you by K-CASE Lawyer, Indonesia’s first law firm dedicated entirely to esports law. We combine our expertise with that of U.S.-based esports law practitioner Justin M. Jacobson, Esq. of Law Office of Justin M. Jacobson, Esq., to provide a brief overview of immigration considerations for both Indonesian and international esports participants.
Whether you’re a seasoned player eyeing global competition or an organization seeking to recruit talent from abroad, this FAQ aims to answer your pressing questions about esports immigration. Let’s dive in and explore the legal hurdles and pathways to pursuing your esports dreams!

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FAQs US and Indonesia Immigration Laws ELN

General FAQs

Q: What are the key differences between immigration processes for traditional sports and esports?

Currently, in the Indonesia and the U.S., both traditional sports and esports competitors apply for and are subject to the same visa criteria and apply for similar classifications. The chief difference is the type of evidence submitted by each talent as traditional sports infrastructure aligns more consistently with national immigration regulations while the esports industry is unique which each title, league, and tournament having their own specific structure and formalities.

Q: How can esports players and organizations ensure they comply with immigration regulations for international events?

Esports players and organizations can ascertain the immigration regulations for the particular country that the event is held and ensure that they obtain the proper work authorizations for any foreign professional gamers attempting to compete in an event including any work permits or visas

Q: What are the potential consequences of failing to obtain the proper visa for an esports competition?

While each country has different consequences, some countries may deny an individual entry without the appropriate visa or work authorization and others may not permit the talent to compete or to potentially receive any prize money they earned. Some other consequences might be more severe such as the individual being deported or denied future re-entry into the country if an individual enters a nation without proper authorization.

Q: Where can I find additional resources and official information on esports immigration procedures?

Each country has its own specific visa and immigration requirements which are generally available at the nation’s immigration or other governmental agency or department responsible for these types of matters. It is also recommended to contact a legal professional to assist you with the process.

Q: What can an esports lawyer do to help with the esports immigration process?

An esports lawyer can assist in advising on the immigration process including providing analysis on the costs, evidence, and the appropriate visa to apply for in addition to preparing and filing the necessary visa or work permit application. An esports attorney might also consult and respond to any responses, denials, or “Requests for Evidence” (RFEs) that may be issued by the adjudicating agency.

Country-Specific FAQs

Indonesia

Q: What types of visas are available for foreign esports players competing in Indonesia?

Indonesia offers a ‘sport visa’ category, which is a single-entry visit visa suited for foreign esports players competing in the country. This visa allows a 60-day stay that can be extended. Foreign esports players and their official team members now only need to provide a recommendation from a sports organization to obtain the sport visa. The simplified requirements have done away with previously mandated documentation such as work experience letters and good conduct certificates from home country police authorities. This visa is available to esports athletes as esports is considered a competitive sport in Indonesia.

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Q: What documentation is required for Indonesian esports visa applications?

Typical documentation includes:

– Proof of involvement with an esports team/organization such as contracts, endorsement letters, etc.
– Details on the specific esports event or tournament in Indonesia that the applicant will be participating in.
– Travel itinerary, financial guarantees, and other supporting documents may also be required.

Q: Can esports athletes leverage their professional careers to obtain permanent residency in Indonesia?

Yes, foreign esports athletes can potentially obtain Indonesian citizenship, which would grant them permanent residency, if they meet certain criteria outlined in Regulation of the Minister of Youth and Sports No. 10 of 2023. The key criteria for foreign esports athletes include:

– Being between 18 and 30 years old.
– Having Indonesian family ties.
– Demonstrating exceptional achievements in esports at the international level in their countries of origin.
– Contributing to national sports development or fulfilling national interest-related considerations in Indonesia.

If the criteria are met and the recommendation is granted by the Minister of Law and Human Rights, foreign esports athletes can obtain Indonesian citizenship, which would provide them with permanent residency status in the country.

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Q: Can esports players with tourist visas participate in Indonesian esports tournaments?

Like most countries, Indonesian law generally prohibits working or competing on tourist visas. However, the same prohibition does not apply for “sports activities with a non-commercial nature”. For professional or paid tournaments, esports players would need the proper sports visa to participate legally.

U.S.

Q: Which visa options are best suited for professional esports players competing in the U.S.?

While the U.S. has various visa classifications that may be applicable to an individual, the two most commonly applied for visas are the O-1 and P-1A U.S. visas.

Q: What are the eligibility criteria for obtaining a U.S. esports visa (e.g., skill level, minimum salary)?

Each visa classification possesses its own unique requirements and criteria. For instance, the O-1 visas require evidence that the applicant possesses an “extraordinary” ability in a particular field which is rare in the esports space. Conversely, the standard for a P-1A is for an individual that is “internationally recognized” as having skill “substantially above the average participant.” Accordingly, while not an exhaustive list some potential evidence that might be submitted for a P-1A esports visa include copies of any written contracts or other employment terms, event itinerary, letters of reference from notable industry professionals and media, information on prior competitive results and awards as well as relevant press and media on the player’s achievements.

Q: How can esports organizations in the U.S. sponsor foreign players for visas?

Esports organizations can sponsor a foreign player’s visas as the foreign players need a U.S.-based employer that they are coming to work for in order to obtain a visas so an organization or an event organizer might sponsor the player and pay for the required work authorization.

Q: What are the tax implications for esports players entering the U.S. on a temporary visa?

While not financial or tax advice, any individual earning income in a foreign country is responsible for paying appropriate taxes on this amount which differs based on each country.

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Q: Can esports athletes obtain a green card (permanent residency) in the U.S. based on exceptional achievements?

While each esports athlete’s situation is different, an individual can and has the ability to obtain a “EB-1A” or a “green card” permitting them to achieve permanent residency within the U.S. if they can fulfill the requirements for the visa.

We hope this FAQ has provided valuable insights into the complexities of esports immigration law. Remember, immigration regulations can be intricate and subject to change. For specific guidance on your unique situation, it’s always recommended to consult with a qualified esports law professional specializing in the relevant region as all the information is attorney advertising and is for educational purposes and use only and is not intended as legal advice.

© 2024 Justin Jacobson Law, P.C. and K-CASE Lawyer

Authors

  • Justin M. Jacobson ELN

    Justin M. Jacobson, Esq. is an entertainment and esports attorney located in New York City. For the last decade, he has worked with professional athletes, musicians, producers, DJs, record labels, fashion designers, as well as professional gamers, streamers, coaches, on-air talent, and esports organizations. He assists these creative individuals with their contract, copyright, trademark, immigration, tax, and related business, marketing, and legal issues. He is a frequent contributor to many industry publications and has been featured on a variety of entertainment, music, and esports publications and podcasts, including Business Insider, The Esports Observer, Esports Insider, Tunecore, and Sport Techie. Justin has positioned himself as a top esports business professional working with talent in a variety of franchise leagues including the Overwatch League, Overwatch Contenders, and Call of Duty Pro League as well as in many popular competitive titles such as Fortnite, CS:GO, Gears of War, Halo, Super Smash Brothers, Rainbow 6, PUBG, Madden, and FIFA and mobile games such as Brawlhalla, Clash of Clans, and Call of Duty mobile. Previously, he worked with various esports talent agencies as well as in an official capacity on behalf of several esports teams and brands. He currently is an Adjunct Professor of Esports at University of North Carolina Wilmington, a member of the industry board for the International Journal of Esports and has authored “The Essential Guide to the Business & Law of Esports & Professional Video Gaming.” View all posts

  • Frequently Asked Questions (FAQs): U.S. & Indonesia Esports Immigration Law

    Yudistira Adipratama is the Managing Partner of K-CASE Lawyer, the first esports dedicated law firm in Indonesia. K-CASE Lawyer has worked with and provided legal consultation to various esports stakeholders in Indonesia, including game publishers, esports clubs, event organizers, streamers, game associations, government, and universities. Yudistira holds a key position in the policy-making process of the esports parent organization in Indonesia. He was involved in the drafting of Law No. 11 of 2022 on Sports, which recognizes esports as a competitive sport for the first time in Indonesian history. Yudistira is also the drafter of PBESI Regulation No. 034/PB-ESI/B/VI/2021 on the Implementation of Esports Activities in Indonesia, a policy that regulates the implementation of the esports industry ecosystem in Indonesia. His expertise in law and the esports industry also led him to be involved in the drafting of Presidential Regulation No. 19 of 2024 on the Acceleration of the Development of the National Game Industry. In addition to esports, Yudistira also has a deep understanding of sports law and actively serves as a speaker representing Indonesia at various high-level international conferences attended by representatives of the International Olympic Committee. Under his leadership, K-CASE Lawyer has supported Indonesia’s participation in various international multi-sports events, such as the 19th Asian Games in 2022, the 2023 SEA Games, and the 14th IESF World Esports Championships. View all posts

Labor&Immigration

10 Tips for Professional Esports Player Contracts with Esports Organizations

In contrast to traditional sports where a standard player agreement exists that are collectively bargained between the parties and the teams exist and are used by every team, there is no standardized or formally accepted and utilized professional esports player contract. Instead, most professional esports teams utilize and develop their own unique documents for signing a professional gamer which vary by team, league, and country. Accordingly, while these documents differ in their actual format and substance, many of them contain similar clauses and provisions addressing several common material deal points applicable to these types of transactions. As a result, while the following information is not intended as specific legal advice or to encompass an entire agreement, these are a few educational tips for professional gamers entering into an agreement with an esports team.

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Contracts Esports ELN Justin Jacobson

“Term”

It is important that the individual is aware of the “term” or length of the agreement. Accordingly, the length of time or how long an agreement lasts is very important to be aware of. A contract’s “term” may be structured as the parties’ desire including for years, months, days, or even on a tournament or seasonal basis.

This clause also usually includes any “firm” or guaranteed terms as well as lists any potential “options” to extend and renew an existing agreement to lengthen the relationship. In this case, the player and team can negotiate how an option under the contract is exercised as it might be at the sole discretion of the team, the player, or potentially upon mutual approval of both parties.

“Compensation”

Another crucial clause in a standard esports player agreement with a team is the compensation clause. As a result, it is important that a player understands their compensation including addressing the amount and frequency of a salary or other agreed upon payment to a professional gamer. While the payment amount is important to agree on, it is also fundamental to understand when a payment is due and what the procedures are in place and the potential repercussions for delayed or outstanding payments including interest or late fees.

“Player Income”

Esports player contracts also include information related to whether or not an organization is entitled to a percentage of any of the professional esports player’s social media and livestreaming advertising and other related revenues and earnings. In many cases, the esports team will not receive any of these funds; however, in certain instances, this will not always be the case and the organization will receive a portion of the funds the player earns. As a result, it is important to understand and agree in advance upon what that amount is including potentially including income limitations or “caps” to a specific number.

“Tournament Winnings”

Most competitive esports players compete in organized events, leagues, and tournaments for prize money, sometimes, for thousands or millions of dollars. Accordingly, similar to social media and streaming income, many professional esports teams receive a portion of their competitive players’ event, league, and tournament winnings. While the percentage varies, it is crucial to be aware of and agree on the percentage that is payable to the organization as well as how the amounts might be split between other players (if on a team), and potentially with the coach and other training staff who all might receive a portion of any prize money that a gamer receives.

“Independent Sponsorships

Many esports player agreements include language addressing a gamer’s ability and procedure for undertaking independent sponsorship and brand partnership opportunities. Consequently, these documents may permit a signed gamer to enter into separate sponsorship and endorsement agreements. However, in many cases, the agreement may include language that limits and prohibits a specific good or service and some might require prior approval by the team of a player’s independent sponsorship opportunities.

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As a result, it is important for a gamer to outline which brands and product categories are prohibited as well as to ensure that they have “carved-out” or exempted any previously existing brand partnerships so that they can continue to work with those companies. Additionally, some agreements have language whereby the esports team is acting as an exclusive or non-exclusive sponsorship or marketing agent on behalf of the talent which is another point to consider and be aware of when signing this type of document.

“Team and Sponsors Obligations”

Generally, an esports player agreement also lists the player’s obligations or “duties” that the gamer must undertake on behalf of the organization. These obligations might include streaming a certain number of hours as well as utilizing the team sponsor’s equipment and products during events and on stream.

There might also be requirements that the gamer participate in a set number of promotional appearances on behalf of the team or its sponsors in addition to providing an agreed upon number of social media posts that the player must make highlighting the team and its brand partners. As a result, a gamer should ensure and be familiar with the specific number of posts, appearances, and required streaming hours are outlined in the agreement as the failure to adhere to them could lead to potential liability including a payment reduction.

“Right of First Refusal” or “Matching Right”

Many esports player contracts also contain language that addresses how a player is required to proceed as their existing agreement is coming to an end. In fact, it is common for esports player agreements with teams to incorporate a “right of first refusal” or “matching right.” This clause means that the current esports team has the right to “match” any third-party offer from a different organization for the player.

If the current team does not “match” the other team’s offer for the talent, then the player may accept and sign with the other team. However, if the initial organization “matches” the other team’s offer, then the gamer is obligated to stay with the original organization. it is important to be aware of this mechanism and to understand its effect since this clause can severely impact a professional gamer’s future career aspirations.

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“Right of First Negotiation” or “Right of First Offer”

In addition to or in lieu of “matching” rights, many esports player contracts also include “right of first negotiation” also known as a “right of first offer” provisions. This clause means that a player currently signed to team is required to first exclusively right to negotiate a contract extension with the player’s current before the talent is permitted to speak with or sign with any other team. As a result, the current esports organization can decide whether to make an offer to keep the player or not.

If the team chooses not to, then the player is free to look elsewhere but they cannot undertake contract negotiations with another organization until the first team declines its right or the exclusivity period times. Accordingly, it is crucial that an esports player includes a set limitation on the timeframe and applicability of this provision in order to provide the professional gaming talent with ample opportunity to secure alternative deals if needed.

“Buyout”

The term of an agreement may naturally extinguish upon its expiration. However, in some cases, the contract may be terminated early including through the usage of a “buyout” clause. In fact, many esports player contracts generally include “buyout” provisions which are a set fee or amount that may be paid by the player or another team to “buyout” or terminate the existing agreement.

The usage and inclusion of this provision enables a new team or the player themselves to pay the agreed upon “buyout” amount to be released from and to terminate their current contract. In these cases, and in order to incentivize a larger buy-out, a player might attempt to secure a transfer bonus or a specified percentage of the payment for any “buy-out” fee paid that is received by the team.

“Trade & Assignment”

Another common provision in professional esports player agreements are those clauses related to the trading, assignment, and loaning of a gamer. In many cases, these agreements provide the esports team with the opportunity to trade, assign, or otherwise loan an existing player to another team.

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However, in an attempt to restrict a team’s unfettered ability to trade or loan a gamer to another organization, it is common for these provisions to include specific restrictions on a team’s ability to trade player such as a specific regional or country prohibitions or even a limitation against specific teams. Finally, there might even be the potential to negotiate for a full “no trade” clause which provides the gamer with the sole and absolute discretion to decide whether or not to approve a trade or assignment to another esports organization.

 BonusName, Image, and Likeness” (“NIL”)

A gamer’s “right publicity” usage rights are another crucial matter addressed in these types of agreements. Generally, a signing organization may acquire a license to use a professional esports player’s “gamer-tag” or other identifiable characteristics permitting them to display the talent’s image, name, portrait, signature, or other protected elements for the listed purposes including commercial ones. In an effort to curtail or mitigate some of this power, a gamer might attempt to negotiate a restriction or right of approval over any usage of the player’s “NIL” during the term of the agreement.

Furthermore, a player might try to incorporate language limiting the organization’s rights to display or otherwise utilize a player’s protected persona after the agreement ends. In some cases, the parties may permit the team to solely utilize the player’s protected assets for “archival” or other “non-commercial” purposes as part of the team’s history and for no other purposes.

Again, these are just a few important considerations that a professional esports players must be aware of prior to entering into an agreement with a competitive esports team. Since the substance of every agreement differs, it is crucial that an esports professional obtain proper competent representation and advice, including working with a seasoned attorney or other knowledgeable professional.

© 2024, Justin Jacobson Law, P.C.

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Author

  • Justin M. Jacobson ELN

    Justin M. Jacobson, Esq. is an entertainment and esports attorney located in New York City. For the last decade, he has worked with professional athletes, musicians, producers, DJs, record labels, fashion designers, as well as professional gamers, streamers, coaches, on-air talent, and esports organizations. He assists these creative individuals with their contract, copyright, trademark, immigration, tax, and related business, marketing, and legal issues. He is a frequent contributor to many industry publications and has been featured on a variety of entertainment, music, and esports publications and podcasts, including Business Insider, The Esports Observer, Esports Insider, Tunecore, and Sport Techie. Justin has positioned himself as a top esports business professional working with talent in a variety of franchise leagues including the Overwatch League, Overwatch Contenders, and Call of Duty Pro League as well as in many popular competitive titles such as Fortnite, CS:GO, Gears of War, Halo, Super Smash Brothers, Rainbow 6, PUBG, Madden, and FIFA and mobile games such as Brawlhalla, Clash of Clans, and Call of Duty mobile. Previously, he worked with various esports talent agencies as well as in an official capacity on behalf of several esports teams and brands. He currently is an Adjunct Professor of Esports at University of North Carolina Wilmington, a member of the industry board for the International Journal of Esports and has authored “The Essential Guide to the Business & Law of Esports & Professional Video Gaming.” View all posts

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Labor&Immigration

Rouen Court Rules Again: Esports Player Can Be Hired on a Fixed-Term Contract

On 13 June 2024, the Rouen Court of Appeal issued a landmark ruling that an esports player can be employed under a fixed-term contract (CDD) for temporary activity increase, even if the club does not possess the “esport” accreditation. This decision has profound implications for the esports industry and the employment rights of professional gamers.

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Fixed-term Contract ELN

Facts and Proceedings

On 13 June 2024, the Rouen Court of Appeal rendered a pivotal decision regarding the employment status and rights of esports players, particularly concerning the enforceability of fixed-term contracts (CDD) in the absence of specific club accreditation. This case involved Mr. [O] [X], known professionally as Skite, a top-ranked Fortnite player, and SP Global Productions, a company that promoted online video game activities.

Mr. [X] had signed a one-year fixed-term contract with SP Global Productions, commencing on 17 September 2020. However, on 19 August 2021, the Evreux Commercial Court ordered the liquidation of SP Global Productions, appointing SCP Mandateam as the liquidator. Subsequently, on 1 September 2021, the liquidator prematurely terminated Mr. [X]’s contract, citing the company’s financial insolvency.

In the initial ruling on 6 September 2022, the Evreux Labor Court found in favor of Mr. [X], affirming that SP Global Productions had failed to meet its salary obligations and that the early termination of the contract was unjustified. The court awarded Mr. [X] unpaid wages, an early termination indemnity, and an end-of-contract indemnity. Furthermore, the liquidator was instructed to provide corrected wage statements and other necessary employment documents.

The AGS (Association for the Management of Employee Claims), which had taken over the responsibility for the unpaid wages, appealed the decision. The AGS contended that Mr. [X] was an independent contractor and not an employee, and that his fixed-term contract should be reclassified as a permanent contract (CDI) due to the lack of specific esports accreditation for SP Global Productions.

The Court of Appeal upheld the initial ruling, emphasizing several key points. It confirmed Mr. [X]’s status as an employee, citing the existence of a signed CDD and the AGS’s failure to prove the contract’s fictitious nature. The court noted that the CDD met all formal requirements and was justified by a temporary increase in activity, thus negating the need for reclassification as a CDI. Importantly, the court ruled that the absence of esports-specific accreditation did not invalidate the CDD or affect its enforceability against the AGS, which remained obligated to guarantee the amounts due by the employer to the employee.

The court confirmed Mr. [X]’s entitlement to unpaid wages amounting to EUR 32,532.85 , an early termination indemnity of EUR 3,603.56 , and an end-of-contract indemnity of EUR 7,337.415 (specified as gross). Additionally, the liquidator was reaffirmed to provide the corrected wage statements and other employment documents as previously ordered.

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The recent ruling by the Rouen Court of Appeal has significant legal implications for the esports industry, particularly regarding the employment of players under a CDD without the necessity of specific club accreditation. This decision brings to light several crucial aspects of labor law as it applies to the esports sector.

Legitimacy of Fixed-Term Contracts

One of the primary outcomes of this ruling is the affirmation that esports players can be legitimately employed under fixed-term contracts, regardless of whether the esports club has specific accreditation. This aspect of the decision is particularly important because it provides legal certainty to players and clubs operating in a relatively new and rapidly growing industry. The court’s decision ensures that players are afforded the same rights and protections under labor law as athletes in traditional sports. This includes the right to claim unpaid wages and other entitlements, which is a significant step towards standardizing employment practices in esports.

Burden of Proof on Employment Contract Validity

The court placed a considerable emphasis on the burden of proof resting with entities like AGS to demonstrate the fictitious nature of employment contracts. This aspect of the ruling underscores the necessity for esports organizations to maintain thorough and accurate documentation of their contractual agreements. Proper documentation is therefore critical for defending the legitimacy of these contracts in legal disputes. This requirement aligns with broader labor law principles that seek to protect workers from exploitative practices and ensure that employment relationships are genuine and not merely a facade to circumvent legal obligations.

Implications for Esports Organizations

For esports organizations, this ruling serves as a stern reminder of the importance of compliance with labor laws. It highlights the need for these organizations to establish robust contractual frameworks and maintain comprehensive records to substantiate the authenticity of their employment relationships. Failure to do so could result in legal challenges and potential liabilities.

Conclusion

The Rouen Court of Appeal’s decision is a landmark in esports law, validating the use of fixed-term contracts without the need for club accreditation and reinforcing the protection of players’ employment rights. This ruling is expected to have a lasting impact on the esports industry, influencing future contractual practices and elevating legal standards. As the esports sector continues to evolve, this decision will likely serve as a foundational precedent, guiding the development of fair and legally sound employment practices. Esports organizations must now prioritize compliance with labor laws to safeguard their operations and protect the rights of their players, ensuring the sustainable growth of the industry.

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Case No. RG 22/03196 – Portalis No. DBV2-V-B7G-JF5R

Appellant:

Respondents:

  • Mr. [O] [X], represented by Frédéric Caulier, SELARL Caulier Vallet, Rouen Bar.
  • SCP Mandateam, liquidator of SP Global Productions.

Via Victoire Avocats

Author

  • Leonid Shmatenko

    Leonid Shmatenko is part of Eversheds Sutherlands’ data protection and technology law team. He has vast experience in regulatory and general issues in the areas of eSports and Blockchain. He advises eSports associations and clubs on all legal issues, advises and supports crypto startups in all matters from planning, preparation to execution of private and public token offerings (so-called Initial Coin Offerings or ICOs). Furthermore, Leonid Shmatenko specializes in international arbitration and has participated in several arbitration proceedings (SAC, ICC, DIS, UNCITRAL, ICSID, ad hoc) as a party representative and secretary of the tribunal. Leonid Shmatenko studied at the Heinrich Heine University in Düsseldorf and is currently pursuing a PhD in international law. After his successful first state examination (2011), he completed his legal clerkship, inter alia, at the German Embassy in Lima and within international law firms in Düsseldorf and Paris. He passed the second state examination in 2015. He is an external lecturer at the National Law University of Ukraine “Yaroslav Mudryi”, where he teaches International Investment Law. He is admitted to the Bar in Switzerland and Germany. Before joining Eversheds Sutherland, Leonid Shmatenko worked as an attorney at leading law firms in Geneva, Munich and Paris. View all posts

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Labor&Immigration

Employment Status of Esports Players in Argentina: A Legal Analysis

In recent years, the global surge in esports popularity has been mirrored in Argentina, leading to a fast-growing industry with unique legal challenges

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Employment Status of Esports Players in Argentina / ELN

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.

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:

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“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.

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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 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)​.

Given the unique elements of esports, existing regulations such as Law 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)​.

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Discrimination and Harassment

The esports environment is not immune to issues of discrimination and harassment. Ensuring compliance with Law 23.592 against discriminatory acts and fulfilling obligations under international conventions like CEDAW (ratified through Law 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 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

Author

  • Leonid Shmatenko

    Leonid Shmatenko is part of Eversheds Sutherlands’ data protection and technology law team. He has vast experience in regulatory and general issues in the areas of eSports and Blockchain. He advises eSports associations and clubs on all legal issues, advises and supports crypto startups in all matters from planning, preparation to execution of private and public token offerings (so-called Initial Coin Offerings or ICOs). Furthermore, Leonid Shmatenko specializes in international arbitration and has participated in several arbitration proceedings (SAC, ICC, DIS, UNCITRAL, ICSID, ad hoc) as a party representative and secretary of the tribunal. Leonid Shmatenko studied at the Heinrich Heine University in Düsseldorf and is currently pursuing a PhD in international law. After his successful first state examination (2011), he completed his legal clerkship, inter alia, at the German Embassy in Lima and within international law firms in Düsseldorf and Paris. He passed the second state examination in 2015. He is an external lecturer at the National Law University of Ukraine “Yaroslav Mudryi”, where he teaches International Investment Law. He is admitted to the Bar in Switzerland and Germany. Before joining Eversheds Sutherland, Leonid Shmatenko worked as an attorney at leading law firms in Geneva, Munich and Paris. View all posts

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