FREE CHAPTER from ‘A Practical Guide to the Law of Esports’ by Rob Lucas

CHAPTER TWO
REGULATION OF ESPORTS

As esports have grown, the question of how the various aspects of the esports world should be regulated has not been consistently addressed. This has resulted in a range of different rules and bodies becoming involved.

In the United Kingdom, the government has taken the same approach as it has to physical sports, in that it has not created any general law of esports. As a result, the regulation of esports is being left to third parties to create through contractual means or by relying on the voluntary adoption of common standards.

Within the United Kingdom, the British Esports Association has taken an umbrella role with the aim of promoting esports and increasing the general awareness of esports, as well as improving standards and inspiring future talent to either play or become involved in one of the many other roles in the esports world. The BEA is generally focussed on the grassroots level of esports and the development there. However, even for the grassroots level, it does not act as a governing body.

As a not-for-profit organisation, the BEA uses all revenues it generates to cover its running expenses and to fund its support and awareness, taster events and other initiatives (such as esports focussed surveys). These include its schools and colleges championships and competitions, as well as assisting third parties to set up esports clubs.

The approach of the BEA is not to position esports as a competitor to physical sport. Instead it promotes esports as a credible activity in its own right by highlighting the benefits which participation in esports can bring. Finally, it seeks to inform government, schools and the general media about esports, what they are and what their benefits are.

The Esports Integrity Commission (formerly the Esports Integrity Coalition) is the closest to an international esports governing body. It is also a not for profit association of members which was formed to deal with common challenges across esports in relation to integrity issues in esports, such as, gambling, cheating and match fixing. Members must sign up to its code of ethics to join and therefore it can enforce this code as a contract. It has also started acting as a sanctioning body for tournaments.

There is also the World Esports Association which is also seeking to introduce regulations to help ensure esports are run on a more professional footing. Its approach has been to work with teams, leagues and tournament providers.


Liability of competitors

Like physical sports, the competitors in esports do not have any special immunity, whether from prosecution for criminal acts or any civil liability for their actions when playing. Whilst it is difficult to see how physical injury could result in an esports setting, for example, from a reckless tackle, which would breach the usual duties of care, there are a few examples where liability can exist in the esports world.

In respect of criminal liability, there has been a minority practice reported in the USA relating to the playing of esports. This is a phenomenon known as “swatting”. This is a very dangerous practice in which one player calls the police and reports serious criminal activity taking place at the place from which another rival competitor is currently playing. The idea being that the police will immediately attend that place responding to the reported criminal activity and disturb the other competitor from the game. This is inherently dangerous and in one instance the police shot and killed a person at the house they attended, as they believed there was a hostage situation there. Further, the police had been sent to the wrong house as the person making the call did not have the correct address for their rival. The person who made the false call was prosecuted and sentenced to a period of imprisonment.

Another potential for liability which is possible within the esports arena takes advantage of the within game feature for competitors to talk to each other. As the potential rewards within esports competitions increase, so too will the desire to win and that might, in some cases, translate into competitors saying things which are inappropriate or breach the general laws around open speech. Tournaments and games will therefore want to impose restrictions on what competitors might say to each other. Whilst a certain level of abuse might be tolerated between adults, many esports players are minors and games and tournaments will want to ensure that they are not subject to abusive language.


Governance

In the United Kingdom there is no body with overall jurisdiction over disputes in the esports world. Instead esporting disputes will be resolved by a governing body for the particular esport (if there is one (which might be the body for the equivalent physical sport)), one of the above esports bodies if the parties are members, the creators of the game concerned or under the relevant tournament or competition rules.

Where a participant has committed a regulatory or disciplinary offence, this will normally be considered by a disciplinary board or similar body set up under the applicable rules of the above body with oversight of the offence concerned. Of course, like physical sports there might be overlap between respective bodies for example, the playing of a game will be subject to the licence terms of the game, but also tournament rules for the competition in question. There is nothing to stop esports taking advantage of the established arbitration, mediation or adjudication processes used by physical sports. Further, the Courts may well have jurisdiction depending on the nature of the offence concerned.

Like physical sports, where there is a finding or determination against a particular participant, this will usually be enforced through a ban or other restriction or restrictions being imposed on the participant through the applicable rules relating to the game or tournament in question. This raises the question of what happens if a competitor is banned from participating in one tournament, only to apply to enter another tournament which is applying different rules? At present, it is entirely possible that the participant would be able to compete.

It is permissible that any esports offences are also punished by way of financial penalties or other sanctions, but again this would need to be permitted under tournament or game rules. These would generally be enforced as contractual provisions and would be subject to the usual enforcement rules, such as, restrictions against penalties. In practice, the ejection from a tournament will be the applied remedy, and a stronger sanction would be loss of sponsorship contracts (as it would be usual to see some form of good behaviour provisions included in sponsorship contracts).

Within the United Kingdom there are no specific accounting or financial rules that apply specifically to esports. Instead all participants in the esports world will be subject to those rules under general law.

As the games industry as a whole has grown, like many other industries, the regulatory compliance requirements have also grown. This has included regulations over the sale and distribution of the games and kit used to play them, as well as in relation to the manner in which the games are provided, such as, via online models. Whilst many of these regulations have general application there are some regulations which are specific to the games industry. There are also regulations with particular implications for the esports world, in particular and as mentioned above, in relation to the involvement of minors in esports.


Age ratings

These regulations are particular to games and like the age ratings on films and television content, are determined by the content of the game, the type of game as well as the gaming platform used.

In the United Kingdom, the PEGI (Pan-European Game Information which is owned by Interactive Software Federation of Europe (ISFE)) standard rating system is used. PEGI ratings have a number of current bands; 3, 7, 12, 16 and 18. In addition to the PEGI rating, it is common for any game to also show descriptions and icons in respect of the types of content within the game. These icons and descriptions often describe any bad language used in the game, any content relating to sex, violence, drugs, discrimination, fear and gambling.

Further, there is also an icon which indicates whether the game can be played online. In August 2018 an additional icon was created to indicate whether the game concerned included the ability to make in-game purchases. This was in response to the emerging trend to monetise game content through the method of in-game purchases, as opposed the traditional method of the payment of a purchase price, whether paid singly or at set intervals. These in-game purchases cover a range of downloadable content (DLC) and can take the form of extra maps or levels to extend the playing of the game or particular power-ups or skins.

The PEGI system is widely used in Europe, but there are some countries, such as Germany, which have their own age rating systems. The German system is administered by the Unterhaltungssoftware Selbstkontrolle (USK or Entertainment Software Self-Regulatory Body). In the USA the Entertainment Software Rating Board (ESRB) assigns age ratings for games and apps, whilst in Australia, the Classification Board makes these decisions for films, video games and certain publications.

Whilst the PEGI system is used overall in the United Kingdom, there are particular regulations which apply depending on how the game is delivered to the player.

For boxed games, the Video Recordings Act 1984 (VRA) require that any boxed game has a PEGI rating issued by the Games Rating Authority (GRA) prior to release. As the VRA envisaged that boxed games would only be supplied in person, it is a requirement that a particular boxed game is only sold to people of or over the age specified in the PEGI rating. Further, if a boxed game contains non-playing content, such as, cut-scenes, it may be referred to the British Board of Film Classification for a further age rating. This can result in a game receiving an overall higher age rating than the playable element of the game would have ordinarily received.

For games which are only available to play online (whether the game is provided online, playable on a mobile platform or downloaded) the VRA does not apply. It is common for a PEGI rating and appropriate icons to still be applied and where these are applied, they would be viewed prior to access, installation or download (as appropriate). Further, the game will also be subject to the ratings framework of the online distributor (which can be the relevant app store or gaming services, such as, Steam) or the game’s host for online games. As a result, there can be a divergence between the ratings of two very similar games depending on which distributor or host is assessing the game and providing the rating.

That said, the main app stores have all adopted the system of the International Age Rating Coalition (IARC) which was created by a number of national ratings bodies including PEGI. This system is intended to provide a single rating for games and apps which would apply across numerous jurisdictions. The IRAC system is used by the Windows Store, the Nintendo eShop and Google Play. However, other distributors maintain and use their own rating systems.

In view of these different ratings systems and the fact that any game can easily be offered digitally across a range of countries, care must be taken when marketing a game which is to be available online. Whilst there will be an age rating, the marketing will also be subject to the advertising rules and regulations in each jurisdiction in which it is marketed. In the United Kingdom games must be marketed in a way which is appropriate for the individuals which may view the marketing materials and actually play the game.

Other esport regulation

As with the age ratings, the absence of an international governing body and little in the way of national governing bodies has allowed the regulatory void to be filed by a number of different parties. In many instances esports regulations are set by the games themselves, or by the organisers of individual competitions or tournaments. Further, there are instances of certain games, especially those which are based on physical sports, where the governing bodies for the physical sport has become involved in the relevant esport. Finally, some physical sports teams are also getting involved in esports and regulating elements of the equivalent esport.

As more sponsors enter the esports market, much of the regulation of the tournaments and teams can be dictated by the sponsor. This can cover a range of issues, but for sponsors (depending on the sponsor concerned) considerations will be age of participants, reputation management or tournament behaviour, use of particular kit and brand prominence across all viewing platforms as the physically present viewers will be in the minority of the viewing audience.

The sponsorship of esports, like physical sports, is subject to the same general restrictions and controls. This includes the codes of practice of bodies such as, the Office of Communications and the Advertising Standards Agency. These continue to apply in the esports world and care should be taken to ensure compliance with the applicable code depending on the channel being used for the marketing concerned.

As many of the participants and audience members are minors, care should be taken to ensure compliance with the advertising rules for products and services with an age restriction. These will apply, as they do for physical sports, for alcohol, tobacco and gambling.

Another area for consideration in the esports world is how data is used. The games themselves will be using and generating a huge amount of data and there will be pressures to use this to improve performance of the players and also in the course of engaging with the audience. This data will be valuable and in light of the technologies allowing images and audio to be overlaid when rebroadcast for different markets, the ownership and control of the data will need to be set out in any contracts.

MORE INFORMATION / PURCHASE THE BOOK ONLINE