Traditional Sports and Esports: The Path to Collective Bargaining

• Author: Kelsey F. Ridenhour
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., Northwestern University, 2014
• Pages: 1857-1897

1857

Traditional Sports and Esports: The Path

to Collective Bargaining

Kelsey F. Ridenhour*

ABSTRACT: Esports is a rising industry that has seen rapid growth in recent

years. With an explosion in investment and revenue, competitive leagues have

begun to form for most popular esports with lucrative winnings. However, not

all players win big, and the existing systems in place for players are often

inadequate to protect them from unfair labor practices. This Note examines

the current competitive esports landscape and compares it to traditional sports

leagues to show that esports players’ unions are an attractive option for

players to eliminate harsh working conditions and gain a seat at the

bargaining table. Examples from the history of traditional players associations

show that although there are legal and market constraints on the formation

of esports players’ unions, eventually, collective bargaining will be a reality

in the industry. This Note first highlights relevant labor law issues and

antitrust realities of traditional sports. This Note then explores what current

esports players endure and how the industry impacts efforts at forming a

union. Next, this Note considers the shape and form an esports players’ union

might take. Finally, this Note argues that a players’ union modeled after

traditional sports players associations is the best means for players to better

their condition, despite antitrust suits and governance structures being

available as interim solutions as well.

I.INTRODUCTION ........................................................................... 1858

II.BACKGROUND ............................................................................. 1861

A.COLLECTIVE BARGAINING & DEVELOPMENT OF UNIONS

UNDER THE NATIONAL LABOR RELATIONS ACT ...................... 1862

B.THE SPORTS INDUSTRY AS A CASE STUDY ................................ 1866

C.PLAYERS ASSOCIATIONS ......................................................... 1869

* J.D. Candidate, The University of Iowa College of Law, 2020; B.A., Northwestern

University, 2014. I would like to thank Ellen Cranberg, Emma Russ, and Aileen Nguyen for their

invaluable contributions and keen editing insight. I also appreciate and would like to recognize

the guidance of Daniel Matheson, who taught me all the basics of sports law. The biggest thanks

of all go to my family, who have supported me no matter my endeavor, and my partner, Llaned

Huerta, without whom I would never have survived law school.

1858 IOWA LAW REVIEW [Vol. 105:1857

1.Major League Baseball and Major League

Baseball Players Association ....................................... 1870

2.National Basketball Association and National

Basketball Players Association .................................... 1872

3.National Football League and National Football

League Players Association ......................................... 1873

D.THE ESPORTS INDUSTRY ........................................................ 1874

1.League of Legends ...................................................... 1877

2.Overwatch League ....................................................... 1878

III.RISING PROBLEMS IN ESPORTS & ANALYSIS OF THE CURRENT

LEGAL FRAMEWORK TO ADDRESS THOSE PROBLEMS .................. 1879

A.RISING PROBLEMS IN ESPORTS ............................................... 1879

1.Player Conditions ........................................................ 1880

2.Power Disparity ............................................................ 1882

B.ANALYSIS OF THE CURRENT LEGAL FRAMEWORK TO

RESOLVE PROBLEMS .............................................................. 1884

1.Employee Status .......................................................... 1885

2.Bargaining Unit ........................................................... 1888

3.Contractual Constraints .............................................. 1889

4.Market Constraints ...................................................... 1892

IV. RECOMMENDATIONS ................................................................... 1893

V.CONCLUSION .............................................................................. 1897

I. INTRODUCTION

The sports industry has a new competitor: Esports, which includes a

diverse and ever-changing landscape of competitive video games, has become

a fast-growing alternative to traditional sports. In 2017, the world

championship for League of Legends, one of the most popular esports, had

106 million viewers.1 That number trailed behind the 2017 Super Bowl’s 111

million viewers by only five million.2 Compare those viewership numbers with

tallies from 2018: League of Legends boasted an impressive peak of 200

1. Christopher Ingraham, The Massive Popul arity of Esports, in Charts, WASH. POST:

WONKBLOG (Aug. 27, 2018, 2:59 PM), https://www.washingtonpost.com/business/2018/08/27/

massive-popularity-esports-charts/?noredirect=on [https://perma.cc/8R8U-KU3E].

2. Tom Huddleston Jr., Here’s How Many People Watched the Super Bowl, FORTUNE (Feb. 6,

2017), http://fortune.com/2017/02/06/super-bowl-111-million-viewers. The amount of 2017

Super Bowl viewers reflects a decrease from recent years and that the peak viewership for a Super

Bowl was in 2015, when the New England Patriots faced the Seattle Seahawks, drawing 114.4

million spectators. Id.

2020] TRADITIONAL SPORTS AND ESPORTS 1859

million viewers during its world championship,3 but the Super Bowl’s

viewership declined to only 103.4 million.4 While esports competitions are

not novel, they have recently grabbed multiple headlines for a variety of

reasons besides rising spectator numbers, including lucrative sponsorship

deals,5 heavy investments from celebrities,6 and even an active shooter at a

local tournament.7 While there is no way to gauge the esports industry’s

longevity, market experts project that revenue will climb, along with

popularity and viewership.8

Many readers may be asking a simple question: What are esports?

“Oversimplified, esports is competitive video game play. . . . [that] involves

head-to-head, real-time competition.”9 While the rules and intricacies of each

video game differ, this basic definition underlies the industry. Traditionally,

esports competitions were limited to tournaments.10 The increasing

3. Xing Li, Peak Viewership for Worlds 2018 Nearly Doubles from Last Year, DOT ESPORTS (Dec.

6, 2018, 3:56 PM), https://dotesports.com/league-of-legends/news/peak-viewership-for-worlds-

2018-nearly-doubles-from-last-year [https://perma.cc/B93B-AMJM]. This figure should “be

taken with a strong dose of salt,” however, as some experts question the accuracy of Chinese

viewing numbers. Id. According to one source, “the World Championship Finals had roughly [a]

75% increase in viewership [between 2017 and 2018], from 56.7 million to 99.6 million unique

viewers.” Alan Bernal, League of Legends: ‘By the Numbers’ Report Show Huge Spike in Viewership for

2018 World Championship, DEXERTO (Dec. 12, 2018, 6:13 PM), https://www.dexerto.com/league-

of-legends/league-of-legends-by-the-numbers-report-show-huge-spike-in-viewership-for-2018-world-

championship-251639 [https://perma.cc/B2T4-32ME]. While the exact viewership numbers

may be elusive, there is no doubt that spectatorship is trending upwards.

4. Joe Otterson, TV Ratings: Super Bowl LII Slips 7% from 2017 to 103.4 Million Viewers,

VARIETY (Feb. 5, 2018, 7:06 AM), https://variety.com/2018/tv/news/super-bowl-lii-ratings-

1202687239 [https://perma.cc/JVS2-7X2S].

5. On September 19, 2018, Mastercard became a global sponsor for League of Legends

(and its parent company, Riot Games) and the bargain is similar to those Mastercard has with

“the Grammy Awards and golf’s British Open.” Lester Wong, eSports: Mastercard Comes on Board as

Global Sponsor for League of Legends in Multi-Year Deal, STRAITS TIME S (Sept. 19, 2018, 3:29 PM),

https://www.straitstimes.com/sport/esports-mastercard-comes-on-board-as-global-sponsor-for-

league-of-legends-in-multi-year-deal [https://perma.cc/85HQ-5TTS].

6. See Max Miceli, Michael Jordan Invests in Team Liquid Parent aXiomatic, Joins $26M Funding

Round, ESPORTS OBSERVER (Oct. 25, 2018), https://esportsobserver.com/michael-jordan-

invests-team-liquid-parent-axiomatic-joins-26m-funding-round [https://perma.cc/T5ZP-LWXT]

(discussing recent investments in esports by celebrities).

7. Noah Smith, ‘It Was Only a Matter of Time’: Security of Esports Events Scrutinized After

Jacksonville Shooting, WASH. POST (Aug. 29, 2018, 4:24 PM), https://www.washingtonpost.com/

news/sports/wp/2018/08/29/it-was-only-a-matter-of-time-security-of-esports-events-scrutinized-

after-jacksonville-shooting [https://perma.cc/WG7F-EBSP] (reporting on a shooting in a

Jacksonville mall during an esports event). Furthermore, while some compet itions are at larger

venues and have the security usually expected at those venues, small-scale events often have

security lapses. Id. One competitor was shot in the thumb as a result of the lax security in

Jacksonville. Id.

8. Ingraham, supra note 1.

9. Aaron D. Lovaas, Esports: A Whole Different B all Game, 26 NEV. LAW., Aug. 2018, at 26, 26

(2018).

10. Andrew Webster, Why Competitive Gaming Is Starting to Look a Lot Like Professional Sports,

VERGE (July 27, 2018, 10:00 AM), https://www.theverge.com/2018/7/27/17616532/overwatch-