This article is written by Ms. Nikara Liesha Fernandez from the School of Law, Christ University, Bangalore. This article deals with the emerging concept of esports and how various countries have tried to regulate these fast-changing developments of the same, in particular the menace of e-doping.
Table of Contents
Esports, a relatively new concept and competitor of traditional sports, has seen exponential growth all over the world and continues to have the sky as its limit, currently being an industry that is worth more than a billion dollars. Esports, literally as the name indicates, means electronic sports. A common misconception is that esports and online gaming are the same thing, however, the main differentiating aspect between the two is the competitive nature of esports which is absent in online gaming. In esports, individuals or teams compete against each other to win certain video games which are broadcasted on mostly free streaming platforms, the most famous one being Twitch, owned by Amazon. Sometimes, famous YouTube channels, through live-streaming of their events for the public to watch, have garnered a humongous fan following.
The appeal of esports as compared to traditional sports is its gender-neutral aspect and even people with physical handicaps are on an equal playing field as their non-handicapped counterparts since these games require a different kind of physical strain as compared to traditional sport. This is not to say that esports do not have their fair share of health concerns. Targeting an age group of youth and young adults ranging from teenagers as young as 14 years old to individuals in their late twenties, an age group where their bodies are at their prime and still developing, sitting continuously for as long as 10 hours every day, which is what professional training demands in the esports industry, is detrimental to an individual’s mental and physical health.
Esports competitors have been vocal about the harmful effects the sports craze has had on them which include developing over compulsive disorder, chronic back and shoulder pain, carpal tunnel syndrome and wrist injuries. As the main cash source of esports are the sponsors of the same (such as big brands like Mercedes Benz, Audi and Red Bull to name a few) who select the best players from the professional market and pay them in millions of dollars to represent them and endorse them in addition to organizations that offer league salaries, the individuals undergo intense mental stress and pressure given the constant competitive atmosphere where the verdict of a single game can either make or break their career.
The majority of esports viewers and players hail mainly from the Asia-Pacific region which makes up more than 57% of the esports enthusiasts (as of 2019). A large portion of the same is from North America, China and South Korea. The most famous esport is League of Legends which offers almost 9 million dollars to the winning team. Teams of esports consist of anywhere from two to six players per team for multiplayer online battle arena (MOBA) events, such as Dota 2 and League of Legends, fighter games like Mortal Kombat and Super Smash Bros, sports games like Madden and NBA2K (an electronic version of the traditional NBA game) and single-player/team games commonly known as First-person shooter (FPS) events like Call of Duty and Halo.
As ubiquitous as esports are all over the world, certain countries are excluded from this global affair due to poor network accessibility as even a 100 millisecond lag in the game can grievously hamper the final result and cause an unfair advantage to the opposing team. It is due to this reason and the lack of infrastructure that South Africa is at an unfair disadvantage in participating in the esports arena.
As the traditional doping methods which are rife in the regular sports industry cannot have the same effects and relevance in the esports arena and due to a lack of regulation of the same, the players of esports have resorted to something known as e-doping such as consuming large quantities of caffeine and Adderall to keep them nimble and on edge as their reflexes have to be as sharp as possible to beat their opponents were as stated before every millisecond can change their fate in the game. This closely resembles the traditional doping methods but the more important one which shall be elaborated upon further on in this article is exclusive with regard to esports is mechanical doping. E-doping also extends the players’ career in the game which normally would end when they hit thirty but through the use of e-doping and stimulants, players try to trick the normal ageing process of their brain and reflexes in desperation to stay relevant in the esports industry and beat early retirement.
Developments in Sports Law
Sports law per se has embodied identity of its own only during the last few decades. Before this, it was understood to be more of an amalgamation of various areas of law that could apply to the field of sports or the sports industry. These sports included only traditional sports such as football, tennis and golf to name a few. As such, there was no separate and distinct field of law known as sports law compared to the popular fields of civil and criminal law.
Over time, however, sports law has gained recognition globally as an independent field of law whose scope extended not just to ensure that the rules of a certain game are followed to ensure a certain standard of conduct is maintained, thus, preserving the integrity of the game, but also providing a remedy for several other interlinking legal issues such as anti-doping, match-fixing and gambling. It also ranges from processes such as regulating diverse sports to the broadcasting of the same to places all over the world.
Sports law in the United States of America is categorized into amateur sport, professional sport, and international sport which are all headed by different committees charted under different legislations due to the federal nature of governance in the USA.
The United Kingdom is regulated by an organization known as UK Sport which collaborates with the local sports councils to manage and distribute public investment as the statutory distributor of funds raised by the national lottery.
The national legislation of China, known as the People’s Republic of China on Physical Culture and Sports, 1995, much like the name of the legislation itself, is aimed at targeting the promotion and development of physical culture and sports in China.
The sports scenario in India is headed by the Ministry of Youth Affairs and Sports and largely lays its emphasis on the field of cricket. There are a number of other national-level bodies as well which oversee different areas in the field as sports such as the Indian Olympic Association, the Board of Control for Cricket in India (BCCI) which are all registered under the Societies Registration Act, 1860. The field of sports law in India especially is in charge of governing a multi-billion-dollar industry of sports in India which continues to develop at a manifold rate.
As esports is a still-emerging concept as the internet and electronic media form an essential part of it which itself is so dynamic, the rules and laws to govern and regulate the same seem to find themselves in a grey area with not too much homogeneity across different countries in the world.
In the field of esports itself, there are different kinds of developers of the same content. Firstly the developers, known as the ‘hands off’ developers, such as Microsoft and Nintendo, do not organize esport events themselves but permit the community to organize them instead with their prior permission. The other school of developers are the ‘hands on’ developers, such as Riot Games and Activision Blizzard, who themselves own and control the intellectual property rights of their content and actively organize the professional scene of their games and have the final say on how they want their game to be played and the power to determine their target audience as well. The problem with the latter is the tendency towards a sort of hegemony where it would be very easy for the developers to abuse the power in their control. Due to these factors and a host of other problems, it becomes nearly impossible to establish a uniform law to govern the entire body of esports.
Esports picked up speed accidentally and locally in South Korea in the early 2000s as a remedy to cope with their financial crisis. On realizing the recognition and fan following it was getting, the Korean Government formed the Korean Esport Association (KeSPA) which was the first governmental body dedicated to regulating esports in the world, mainly in the area of broadcasting rights and players contracts. This move spearheaded the governments of other countries to form similar bodies and it was not too long before the British Esports Association (UKeSPA) was founded in 2014 followed by the Association for Chinese Esports (ACE).
The need for regulatory bodies was necessary to ensure that due process was followed by the ‘hands off’ developers where there were grievances of the players not being paid by the companies who were sponsoring them, such as in Canada and Malaysia. Problems were also being faced by the ‘hands on’ developers with regard to the player’s welfare in the face of allegations of the inhumane working conditions, and concerns regarding the player’s welfare they were forced to endure in addition to discrepancies with respect to the age limit required to participate in various games also known as player contracts.
For example, in the European Union and the United States, the minimum age of the players to enter into a contract was at least 18 years whereas in Scotland for example, they could do so at 16 years itself. This gave rise to legal problems covering areas of contract law, visa-related issues for international tournaments, Intellectual Property Rights (IPR) law and endorsement-related legal issues, legal betting and gambling with regards to the probable winners of tournaments and the area of mergers and acquisitions and other employment issues.
Due to the failure of the esports regulating authorities for the individual countries, there was a need to create a global governing organization of the esports sector which led to the birth of the World Esports Association, Professional Esports Association and the International Esports Federation.
The issue with e-doping, as opposed to traditional doping (which is also carried out in a similar manner in esports), is that it often goes unnoticed as the players of esports, rather than a face to face set up like traditional sports, interact through an electronic medium where it is quite difficult to make out whether they are under the influence of dopants or not.
The two main modes of e-doping are traditional doping, which strongly resembles the doping in regular sports which mainly use drugs, such as Adderall, Ritalin, Selegiline and other ‘performance-enhancing substances’, effects of which can have effects on enhancing the concentration, calmness and reduction of fatigue amongst players.
The other form of e-doping is known as mechanical doping which is solely a method of cheating the system of esports wherein instead of enhancing the physical and mental potentials of the players themselves, efforts are instead diverted towards fixing of the machines used for the tournaments through manipulation of the software or hardware, thus giving the players a specific advantage within the game which influences the outcome of the same by increasing the chances of winning for a given player/team. The four main forms of mechanical doping are – allowing computers to automate actions, allowing the player to see through objects such as walls and smoke, adding additional powers to work to the player’s advantage (such as the ability to fly or gain strength in the game) and attacking the server of the host causing long lags in the games which hamper the opponent’s performance.
Countries such as Poland have made efforts to include esports in the definition of a sport in the form of a competition based on ‘intellectual activity’. South Korea is another example where the KeSPA, as mentioned earlier, regulates esports tournaments including the provision of linking virtual accounts to real people to be able to affix responsibility in cases of the commission of criminal acts. Another Korean Act that punishes offenders who are found guilty of boosting profits is the Game Industry Promotion, Act (2006).
Anti-cheating software is another tool employed by countries to curb the menace of e-doping. An example of such software is Valve Anti-Cheat (VAC) which also enables the regulating authorities to directly track the player’s keyboard and mouse movements to ensure that they reflect what the player is actually doing. Some regulating authorities even mandate the use of previously unopened equipment for esport professional events to ensure that the software of the same is not manipulated beforehand.
The Electronic Sports League (ESL) partnered with the World Anti-Doping Agency (WADA) to develop the very first anti-doping policy of the esports industry. The World Esports Association (WESA) was the main authority formed as a result of the joining hands of ESL and a number of other esports teams from countries across the world to ensure that all events supported by WESA would be free from illegal, immoral and unethical practices.
India is no stranger to the troubles of esports. In a country that has one of the largest youth populations in the world and especially in light of the present situation of the global pandemic, an increasing number of individuals have taken to the addiction and allure of esports.
Seeing how the developed countries are still struggling to grapple with the fast-emerging techniques and cybercrimes that occur as part and parcel of the esports industry, it is no surprise that India is finding it even more troublesome to deal with the same.
For example, an Indian by the name of Nikhil Kumawat, now known as Nikhil ‘forsaken’ Kumawat who was a global offensive player was caught cheating at the Extremesland 2018 Asia Finals as an unfortunate result of which he was barred for a period of five years by the Esports Integrity Commission (ESIC) from participating in any esports-related activity.
Esports in India is controlled by the Esports Federation of India (ESFI) who shares its membership with the International Esports Federation (IeSF) and the Asian Electronic Sports Federation (AESF). A major problem the esports industry in India faces is its lack of funding which hampers its development keeping it on an inferior footing as compared to the other developed countries.
The lack of connectivity and infrastructure especially in the remote rural areas which actually house the majority of the Indian population suffer from the same accessibility issues which have been discussed previously with relation to South Africa. Lack of high internet speed, modems, high-end computers, and the basic facility of electricity itself make it challenging for the individuals from rural areas who are just as capable as the urban population from participating in esport events.
A lack of general awareness of the concept of esports, in general, is another issue that prevents the nurturing of talent of potential esports players due to the ignorance of the world of esports itself.
Though there have been serious attempts by regulating authorities all over the world to govern the area of esports and control of e-doping, they have been largely ineffective and insufficient to deal with the ocean of problems that are already existing and fast emerging through the rapid growth of electronic media. As cyberspace continues to be something that consists of a major grey area concerning the depths to which it can go itself, formulating laws to prevent the misuse of the same and its strict implementation, as well as proper penalties for offenders, are the only way forward for esports developers and the regulating authorities of countries to ensure that esports can continue to grow with all its benefits in a healthy competitive environment while maintaining a high standard of morality.
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