BALANCING ESPORTS: PROTECTING THE NEXT GENERATION'S SUPERSTARS.

• Author: McCarthy, Matthew

1. Introduction

   In mid-March of 2020, when millions of people were confined to their homes at the peak of the COVID-19 pandemic, professional sports leagues shut down, television shows stopped production, and people had few options to entertain themselves. (1) Despite these challenges, video game popularity has continued to grow and is projected to grow exponentially in the coming years. (2) As video games grow in popularity worldwide, so has interest in professional video game competition, otherwise known as Esports. (3) Esports are organized video game competitions where athletes and teams contend with one another in different games, such as League of Legends, Counter Strike: Global Offensive, Dota 2, and Fortnite. (4) Esports teams compete in various tournaments across hundreds of games for massive prize pools, the largest of which was Dota 2 The Invitational's $34 million prize pool. (5) The rising popularity of video games and Esports has attracted billions of dollars of investments and sponsorship deals. (6) Global Esports revenue across all games in 2021 is estimated to exceed $1.1 billion and viewership across all Esports competition will grow to 474 million people in 2021 (7) The rapid increase in revenue and explosion of Esports popularity has left labor relations between "E-athletes," teams, and league organizers lagging behind. (8)

   This Note will examine how an Esports athlete union covering all leagues and athletes would help protect athletes' health, rights, working conditions, and maximize their opportunities to succeed in Esports as a whole. To investigate this end, this Note will explore: unionization in the United States, the plummeting union membership in America and its juxtaposition with the rise of Esports, the development of player's associations in major sports in the United States, the brief history of Esports development, and the recent attempts of unionization in Esports. Finally, this Note will discuss why an Esports athlete union covering all athletes and leagues provides the greatest protection and opportunity for Esports athletes and is preferable to a game-by-game or league-by-league approach.

2. History

   1. The National Labor Relations Act and Collective Bargaining

      During the 19th century in the United States, unions struggled to form due to discrimination from employers; some courts went so far to classify them as illegal "criminal conspiracies" against the employer. (9) Despite years of demand for unions and worker protection by oppressed workers in the United States, it was not until the passage of the National Labor Relations Act ("NLRA"), and the Norris-La Guardia Act that workers were granted meaningful labor protections. (10) The NLRA gives workers the right to form, join, or assist unions, choose representatives to bargain collectively with their employer about terms and conditions of employment, and attempt to improve the workplace through concerted activity. (11) Additionally, the NLRA prohibits employers and unions from engaging in unfair labor practices. (12) Examples of unfair labor practices include but are not limited to discouraging workers from forming a union, misinforming workers about labor rights, and discriminating against a worker for exercising their labor rights. (13)

      In order for workers to form a union, there are several requirements under the NLRA that must be satisfied. (14) First, the employer must be covered by the NLRA, which applies to all private employers whose operations affect interstate commerce, but the National Labor Relations Board ("NLRB"), who enforce the NLRA, usually only intervene in disputes that are not resolved or settled following a formal complaint. (15) Additionally, if a union wants to represent a group of workers, the union must garner the support of a majority of workers in a bargaining unit. (16) Once there is simple majority support for the union, indicated by workers signing authorization cards, the union will typically be recognized voluntarily by the employer; but if there isn't a majority, workers can petition the NLRB to hold an election to form a union if 30% or more of the authorization cards are signed. (17) Once the union is recognized, it can collectively bargain on behalf of the workers with the employer about wages, hours, and other conditions of employment until they agree on a labor contract. (18)

   2. The Rise and Fall of Unions and Its Coincidence with Esports

      Following the passage of the NLRA, union membership in the United States skyrocketed, due to the efforts of two major labor unions, the American Federation of Labor ("AFL"), and Congress of Industrial Organizations ("CIO"). (19) Union membership peaked at about 15 million workers in 1945, with 35% of wage and salary workers being members of unions. (20) The power of unions would not last much longer however, due to the passage of the Taft-Hartley Act, which diminished the power unions had to expand into new sectors and increased corporate executives' powers to discourage unions from forming. (21) The blow to unions' tactics and tools coupled with external economic and political effects caused irreparable harm to the growth of unions in the United States from which union membership rates would never recover. (22) In fact, from the 1960s through the 2010s, union membership in America has been steadily decreasing, with Union membership hitting a new all-time low in 2019. (23)

   3. A Brief History of Esports

      The decrease in union membership from the 1960s to the present is juxtaposed by massive technological innovations, which include the advent of video games. (24) The first computer-based video game, Spacewar!, is also known for being the first game used in an Esports competition at Stanford University in 1972. (25) However, the first large Esports competition was 1980's Space Invaders Championship in which 10,000 athletes competed against one another. (26) The next major development in Esports was in 1982 when Walter Day created "Twin Galaxies' Official Video Game & Pinball Book of World Records" to maintain world record scores for various video games and ensure that there was no cheating in obtaining these records. (27) Walter Day was also responsible for founding the U.S. National Video Game Team, the first Esports team. (28)

      Though arcades and home gaming systems had created a small competitive scene and brought competitive video games into general American culture, it wouldn't be until the technological advances of the 1990s and the internet that video games and Esports would be revolutionized. (29) Esports became popular in some countries, particularly South Korea; they created the Korean esports Association ("KeSPA"), to negotiate broadcasting deals for Esports tournaments, organize tournaments, and nurture developing Esports leagues. (30) In the early 2000s, personal computer ("PC") gaming cafes popped up around the world that allowed athletes to access high powered PCs which may have been too expensive for the average consumer to afford. (31) This greatly increased the number of athletes who had access to the means of participating in Esports and competitive video gaming. (32) With the growing popularity of Twitch.tv, a broadcasting website, and the increasing accessibility to online video games in the forms of consoles and PCs throughout the 2010s, Esports have exploded and grown into a billion dollar industry, entertaining millions of fans across the world. (33) Tournaments across various games can attract millions of viewers, much like traditional sports, and events like the 2019 League of Legends World Championship that peaked in viewership (excluding Chinese viewership) at 3.9 million concurrent viewers and drawing in over 100 million unique viewers. (34) Esports popularity exploded in the 2010s while the union membership rate was a fraction of what it had been in the past. (35)

   4. Player's Associations in Major Professional Sports Leagues

      Traditional sports and Esports have many connections with one another; many Esports leagues include traditional sports video games such as Madden, NBA 2K, FIFA, NHL, and owners of many sports franchises also own Esports organizations. (36) Major professional sports athletes today are some of the highest paid professionals in the United States; however, before professional athletes were making millions, they were being oppressed by their employers much like many of the oppressed workers in the first half of the 20th century. (37) Major League Baseball ("MLB"), became the first sports organization to unionize its athletes in 1968 after hiring a United Steelworkers of America economist to negotiate a collective bargaining agreement ("CBA"), which increased the minimum salary to $10,000 and established the player's association as an official union. (38) The National Basketball League ("NBA"), and National Hockey League ("NHL"), had similar struggles and would eventually have their respective unions recognized by franchise owners shortly after the MLB. (39) The National Football League ("NFL"), is a unique case, in that the union often decertifies, which is a legal strategy by the athletes to bring their legal issues to court rather than arbitration required by a traditional labor union. (40)

      Professional athletes' unions are similar to traditional unions under the NLRA, but there are some distinct differences that set sports player's association apart. (41) Professional sports unions take a different approach than traditional labor unions and view a CBA as a framework for the minimum standards for things like salary, bonuses, percentages of league revenue, benefits and working conditions. (42) Additionally, and perhaps most unique to professional sports unions, is that athletes are free to negotiate their contracts with team owners, allowing for some athletes to get much higher salaries than their peers. (43) When a CBA cannot be agreed to in any professional sport, owners--rather than the...