Can eSports fall under the legal category of sports?

What is the essential nature of eSports and can it be classified within the broad category of sports?

Legal practitioners debate around the question of whether eSports can fall under the legal category of sports. But, what is the essential nature of eSports and what distinguishes sports activities from similar activities that are not sports?

eSports have rapidly grown to a format which resembles popular sports products in the context of entertainment. Organized eSports events started in 1980 with the Atari Space Invaders Championship which was the first major video game competition with almost 10,000 participants. But, we now have events like the League of Legends World Final 2016 with an audience of  20,000 at the Staples Center in Los Angeles and 43 million viewers watching online.

Some authors describe sports as a playful competition based on physical skill, strategy, and organization (Guttmann, A. (2004). From ritual to record: The nature of modern sports. New York: Columbia University Press; Suits, B. (2007). The elements of sport, In W. Morgan (Ed.), Ethics in sport (pp. 9–19). (2nd ed.) Champaign, IL: Human Kinetics.) Specifically, Suits defined a sport as a game that meets the following four requirements:

  • they require skill (as opposed to pure chance);
  • the skill is physical;
  • they have a wide following; and
  • stability, as represented by the development of ancillary roles and institutions (e.g., coaches, research and development, criticism or commentary, archived records).

Because of the elements of skills of the players and the enthusiasm from the public, traditional sports organizations are investing in eSports events. Below are some examples:

  1. The French professional soccer league, Ligue 1 launched Europe’s first professional eSports soccer league;
  2. The Australian Football League is developing an eSports tournament to be hosted at the 56,347- capacity Etihad Stadium in Melbourne;
  3. The Marshmello themed entertainment performance based on the Fortnite game mode became the first ever in-game concert and the most attended concert in history because of its broadcasting on Twitch and YouTube.

The interpretation of whether eSports can fall under the legal category sports has a significant impact on the industry and could implicate several decisions that may shape the future of the eSports competitions, as well as the perceptions towards them, including:

  1. The potential reliance on sports specific statutes, which might apply to various aspects of the eSports field, including broadcasting, gender equity, minors, and participant representation;
  2. The consequences that eSports competition will generate in the gambling sector as well as in malpractices such as match-fixing, eDoping or hacking when players are involved in eSports wagering;
  3. The intellectual property claims deriving from eSports game developers and publishers.

At the moment, eSports events have many elements in common with sports events, such as merchandise, sponsorship, media rights, technology, social media, legal issues, and athlete well-being. And a critical factor that may help to solve the dilemma above – under the current unclear legal scenario would be to examine how consumers and existing organizations are using eSports. From this perspective, both eSports and traditional sports are used by consumers for the same purpose: entertainment. Both are sources of sports entertainment competing for limited leisure time and financial resources.

The eSports industry is in its relative “infancy” if compared to established traditional sports. Therefore, issues on the rules, structure, and governance are fundamental to the legitimization of eSports. Lawmakers shall monitor the evolution of the eSports industry to understand – and hopefully to anticipate – the main trends and the alternative strategies for main stakeholders willing to invest in it.

For an outline of the main legal challenges of eSports, you may read my previous article The rise of eSports and its legal challenges.

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Vincenzo Giuffré

Trainee Lawyer at DLA Piper IPT Italy, Milan| Graduated Student at Bocconi University: Major Business Law School | Exchange Program at University of Minnesota - W. Mondale Law School | Visiting Student at National University of Singapore (NUS)

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