Professional Gamers Are Today's Professional Athletes

• Publication year: 2021

Professional Gamers are Today's Professional Athletes

Troy Viger
Georgia State University College of Law, tviger1@student.gsu.edu

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PROFESSIONAL GAMERS ARE TODAY'S PROFESSIONAL ATHLETES

Troy Viger^*

Abstract

Recall the adversities faced by many in the entertainment industry. Freddie Mercury tried to join several bands before forming Queen. Judy Garland signed with Metro-Goldwyn-Mayer at age thirteen after performing with her sisters throughout her childhood. Babe Ruth signed his first professional baseball contract with the minor-league Baltimore Orioles. Those same historic adversities faced by these giants of the entertainment industry are being repeated today in a closely related field—the Esports industry.

Esports, a form of competitive video gaming, attracts audiences that "rival some of the world's great sporting events." A thorough due diligence review of the industry-norm contract must be undertaken. Esports professionals continue to fall victim to handshake deals put to paper like so many entertainers before them. Esports organizations use heavy-handed contracts to severely limit professionals from exploring other options and strip them of most of their earnings.

Turner "Tfue" Tenney's lawsuit against FaZe Clan brought to the forefront the lack of regulation in the Esports industry and the question of whether gamers should be entitled to similar protections as actors, artists, and athletes, and other entertainers. The Talent

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Agency Act (TAA) and the Miller-Ayala Athlete Agents Act (MAA) apply different standards to the representation of artists and athletes. By dismantling the pros from the cons of these two Acts, legislatures can craft new Esports-specific legislation to protect the creative minds of these professionals.

Specifically, the proposed legislation should further define "artist" and "other entertainment enterprises" from the TAA to account for the new characters in the entertainment industry, such as professional gamers and influencers. The legislation should also define "athlete" to help guide courts in determining if professional gamers are better labeled as an athlete, artist, or a combination of the two.

This is not the first time the entertainment industry has prioritized agents' financial gains over artists' and athletes' freedom to contract and livelihoods, but hopefully courts, legislatures, and lawyers can use the past lessons of Freddie, Judy, Babe, and the countless others to better protect professional gamers.

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CONTENTS

Introduction..............................................................................1004

I. Background..........................................................................1006

A. Investing in an Esports World..........................................1008
B. Esports Compared to Its Traditional Counterpart...........1009
C. Turner "Tfue" Tenney's Gamer Agreement.....................1012

II. Analysis................................................................................1015

A. Talent Agency Act.............................................................1017
B. Miller-Ayala Athlete Agents Act ....................................... 1022
C. Overall Gamer Agreement ................................................ 1024
D. Gamer Agreement Compared to Traditional Sports and Modeling ........................................................................... 1028

III. Proposal................................................................................1034

Conclusion.................................................................................1042

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Introduction

Esports, a form of competitive video gaming, is a worldwide phenomenon projected to eclipse $1.8 billion in global revenue by 2022.¹ The immediate and continuing societal impact of video games cannot be overstated, but few remember the first Esports event in 1972.² That event featured the video game Spacewar! and offered only a year's subscription to Rolling Stone as the meager grand prize.³ Nearly half a century later, the sixteen-year-old Kyle Giersdorf won $3 million in the first-ever Fortnite World Cup.⁴ Giersdorfs winnings greatly exceeded that of the victors of the Masters, the PGA Championship, and nearly matched the U.S. Open earnings.⁵ His win propelled the world of competitive video gaming into a fast-growing, international spectacle with millions of fans and billions of dollars up for grabs.⁶ Giersdorf and other Esports

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participants are far from the "perpetuated stereotype of video games being played by overweight teenagers huddled in dark basements"—evident by the 380 million-person global Esports audience in 2018, 165 million of whom were dedicated viewers.⁷

Nothing less than a modern gold rush, Esports' success has led many to mention it alongside other more traditional sports like baseball, but "the comparison may not be apt."⁸ The term Esports "has been assigned to the practice," but whether lawmakers and regulators agree that the contests are indeed sports remains to be seen.⁹ "Often referred to as the 'wild wild west,' esports law is a rowdy, unrestrained, and often lawless legal landscape"¹⁰ that is "rapidly gaining mainstream attention."¹¹

When approaching Esports, legislators and courts must be careful not to hinder its growth but rather take into account the unique nature of the industry and help Esports professionals continue to climb the ladder of global success.¹² Video game jurisprudence will likely grow quickly as courts face tough decisions—such as determining whether "esports [are] 'sports' in the traditional athletic sense."¹³ And one new lawsuit started challenging courts to answer the debate of

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"whether professional gamers are athletes, performers or something else" where video games, players, and money converge in a new market.¹⁴

This Note explores the classification of professional gamers and the legal implications that result from that classification. Part I discusses the background surrounding Esports and introduces the debate of whether professional gamers are athletes, artists, or perhaps both. Part II provides an analysis of how governing agencies have applied laws differently to athletes and artists, the results of that bifurcated application, and how agencies have applied similar laws to athletes in traditional sports. Part III proposes a solution to the debate over the legal classification of professional gamers, modeled from the approach applied to traditional athletes but with a twist to account for the unique landscape of those working in professional gaming, which is a "predatory and largely unregulated industry that systematically exploits its talent."¹⁵

I. Background

Regardless of whether society views Esports as a hobby, an expensive waste of time, or an actual sport, the industry is growing exponentially.¹⁶ Notwithstanding any negative attitude toward video games, "esports will continue to grow as an industry—and a pastime—for the foreseeable future" due to its seemingly unstoppable cultural momentum.¹⁷ Young people are participating

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progressively more in high school and in collegiate Esports; in fact, the industry is affording a select few the option to pursue a career in not just a single genre but a single video game itself.¹⁸ One of the most popular Esports games, Overwatch, is described as "an intense . . . action game that emphasizes teamwork and individual skill. Players choose heroes with diverse and powerful abilities, then clash on a variety of maps."¹⁹ Another popular game is League of Legends, which is a strategy role-playing game where "[t]wo teams of five 'champions' compete to take down the other team's base."²⁰ Overwatch and League of Legends are a part of one of the "quickest-growing segments of the entertainment industry": competitive video gaming.²¹

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A. Investing in an Esports World

"Professional teams and players have fueled much of esports' explosive growth, supported by significant investments from traditional sports franchise owners . . . and increased visibility on traditional media outlets."²² Scrambling to compete for the valuable youthful attention evidenced by rapidly rising viewership numbers, major professional sports leagues have poured a "significant influx of investment capital" into the explosive growth and commercial opportunity in Esports.²³

cavs Legion, an Esports team affiliated with the cleveland Cavaliers of the National Basketball Association (NBA), announced a plan to open "a new facility in cleveland that will cater to players and fans of the fast-growing esports industry."²⁴ Following suit,

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game publishers such as Activision, Blizzard, and Riot Games, which produce game titles such as League of Legends, Call of Duty, Overwatch, and Halo have poured in investments.²⁵ Also joining the fray are venture capital firms and sports celebrities.²⁶ Dallas Cowboys owner, Jerry Jones, bought Complexity Gaming, a team that will now play in Dallas, home of Esports Stadium Arlington.²⁷ And Dallas Mavericks owner Mark Cuban owns Mavs Gaming, which sponsors a team playing in the NBA 2K League.²⁸ Perhaps most prominently, actor Will Smith is among the new investors in the Esports franchise Generation Gaming, which accounted for a new $46 million round of financing.²⁹

B. Esports Compared to Its Traditional Counterpart

To many, the idea that video game players have comparable skills to the highest caliber of traditional professional athletes may be laughable, but a growing number of people realize the unique talent, skill, and dedication of professional gamers necessary to rise above a saturated market and make a name in Esports.³⁰ Major Esports events attract audiences that "rival some of the world's great sporting

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events."³¹ In many ways, "the eSports industry is similar to the traditional sports from which it derives its name: it is an entertainment industry built around competition, fan...