Guest Editorial – Inviting Regulation: The Sportsification of Video Games by UltraDavid Guest Editorial – Inviting Regulation: The Sportsification of Video Games by UltraDavid
Fighting game commentator and entertainment and video game attorney David Philip “UltraDavid” Graham has written a thought-provoking piece that looks into the potential treatment... Guest Editorial – Inviting Regulation: The Sportsification of Video Games by UltraDavid

Fighting game commentator and entertainment and video game attorney David Philip “UltraDavid” Graham has written a thought-provoking piece that looks into the potential treatment of video gaming as a sport, under the same sorts of government regulations as traditional sports like football or basketball. You can read the article at his website DPGatLaw.com or in its entirety below.

Editor’s note: The contents of this article represents David’s opinions, and not necessarily those of Shoryuken.com or its authors.

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Inviting Regulation: The Sportsification of Video Games

http://dpgatlaw.com/2013/07/23/inviting-regulation-the-sportsification-of-video-games/

The US State Department made news recently by granting P-1 athlete visas to a brand new set of qualified foreign players, allowing them to compete and work in the United States for up to five years. The visa process is rarely newsworthy, but this time things were a little different. This time the athletes weren’t sports stars. They were League of Legends video game players.

Riot Games, developer of League of Legends, had worked for months to secure visas for its players so that LoL players could lawfully work in the US. Under the law, P-1 visas are available to athletes who compete at internationally recognized levels of performance or to athletes, coaches, or other members of teams located in the US who are also members of certain foreign leagues. There are similar visa allowances for entertainers, circus actors, and even people who perform in theatrical ice skating productions, but there’s nothing on the books like that for video gamers. In part due to necessity and in part out of its belief that video games can be sports, Riot decided to pursue visas by claiming its players were athletes. The government agreed.

Riot is one of the leaders of the many video game companies, media groups, tournament series, community organizers, players, and spectators working to develop competitive video gaming. After two decades of growth, these efforts have begun to pay off.

Already, professional and semi-professional competitive video game players number in the hundreds. There are professional gaming coaches, managers, and team support staffs. Large tournaments and established seasons welcome thousands of live attendees, broadcast to hundreds of thousands of viewers online, and offer payouts in the millions. There are dedicated live media and news organizations, a player and talent agency, and even specialized attorneys (…hi!). It’s a multimillion dollar industry with roots in the last millennium and a hefty dose of optimism in this one.

Riot didn’t create competitive gaming, but it does believe strongly in gaming’s future and in the idea that competitive gamers are athletes playing real sports. And in pushing for P-1 visas, it may have taken one of the most important steps in competitive gaming’s development: it got the government involved.

Most current legislators, judges, and bureaucrats have little reason to think about people who play video games in tournaments. No American legislatures and few courts or government agencies have had to deal with the competitive aspects of video game play. But Riot’s work in securing P-1 visas for LoL players may signal the start of more direct government involvement, whether at the government’s own volition or at the continued behest of private parties.

What might this involvement look like? The answer to that has a lot to do with whether the government believes it’s involved in video games or sports.

ARE WE GAMERS OR ATHLETES?

There’s a strong push among some parts of the competitive gaming world towards using sports terminology. Competitive video gaming is sometimes called electronic sports or “esports.” Players are sometimes called “cyber athletes.” Organizations like the Cyberathlete Professional League, the Electronic Sports World Cup, and Major League Gaming hold esports events for video game athletes and fans.

The sportsification of video gaming terminology may seem like a simple rhetorical issue, but to the law words can be everything. The terms we use amongst ourselves and in bringing our issues to the government could have a strong impact on what the ultimate legal regime governing competitive gaming looks like. The State Department endorsed the idea that video game players are athletes not just because Riot identified an easier legal route to obtaining visas for its players but because Riot’s representatives speak about video gaming usings esports-style terms.

But will other parts of the government come to agree that video gamers are athletes? It’s hard to say. After all, this phenomenon is only now coming to a head in the US.

By contrast, other countries have been dealing with competitive video gaming for some time. The Korean eSports Association, or KeSPA, has been an official South Korean government-related organization supported by the Ministry of Culture, Sports, and Tourism for over a decade. In Taiwan, esports has been officially established as a national sport eligible for government aid in cultivating talent. The Swedish city of Jonkoping offers cheap hotel and transportation rates as well as logistical and financial help for the massive Dreamhack esports festival it welcomes every year. On the Caribbean island of St. Maarten, the government backs a video game event group called the Video X Games in an effort to encourage tourism from the video game inclined.

These governments, forced by constituents and enthusiasm to consider the question of whether to provide more official support for video gaming and for gaming as sports, have already answered in the affirmative. The visa decision may show that the US isn’t far behind.

The biggest reason to expect more encounters between American governments and competitive video gaming is appeals from the people involved. People who back the idea of games as sports, whether for financial reasons or because they believe in it or both, won’t stop asking different parts of the government to agree. Riot got athlete visas for its players by figuring out how to approach the government and how to convince government workers that gamers are athletes. Riot and others can continue to apply those lessons in the future. And over time, as newer, more video game-friendly generations of people take control in government, pro-esports terminology may find increasingly more willing ears.

POTENTIAL SPORTS-BASED REGULATION IN VIDEO GAMES

A legal regime in which video games are sports can be helpful, as in the case of visas for LoL players. But it could also result in an avalanche of regulation across a host of different areas.

In this paper, I’ll discuss the impact of the sportsification of gaming terminology on Title IX in collegiate athletics, how student athletes join the pros, athletic training and coaching, player unemployment benefits, media coverage, and player agents. I suspect there may be additional issues in things ranging from sports betting to advertising, performance enhancing drugs, video game company standards of care, player health benefits, team insurance requirements, taxes, and more. I am only one man. I can’t get to everything.

In addition, knowing in advance how video game pegs might fit into traditional sports holes is a tricky business full of unknowns. But as a lawyer, part of my job is to consider potential issues before they happen. So let’s do that!

Lemme just… invent an alternate future world where the government has adopted esports terminology and considers competitive video games to be sports… ok. Now, journey into my legally-informed imagination and discover what esports is like… in 20X6.

“Earth. The imaginary future. The year is 20X6, and sport… has changed. Thousands of players across many video game genres make their livings playing professionally. Some have rich endorsement deals negotiated by powerful agents. Dozens of professional teams commanded by wealthy owners support fully developed ecosystems of players, management, staff, lawyers, secretaries, and more. Extensive broadcast networks and media organizations show live video gaming events, news, analysis, and tabloid stories, while traditional sports outlets like CBS, ESPN, and Sports Illustrated have long since added shows and sections dedicated to pro gaming. Professional tournament series around the globe routinely sell out gigantic stadiums to tens of thousands of fans. Viewers numbering in the millions watch in private or in bars while wearing merchandise from their favorite teams and players. Competitive gaming, known in 20X6 as esports, is an international craze, a multi-billion bitcoin industry, and one of the world’s great pastimes.”

TITLE IX SEX EQUALITY

“In 20X6, many American colleges and universities support esports teams. There are intercollegiate, interscholastic, club, and intramural teams for all the biggest esports games in the world, from Duke Nukem 8 to Skullgirls vs Divekick 3. Although different teams receive different amounts and types of aid, they’re all allocated some amount of money, scholarships, faculty help, facilities, or other support. But esports athletics of 20X6 are still as male-dominated as competitive video gaming was in earlier days. For athletic directors, balancing Title IX in esports has become a major concern.”

Title IX is a major piece of US federal legislation meant to balance out opportunities in educational and athletic programs and activities for the underrepresented sex, which is almost always women. Programs and activities that receive federal financial assistance must provide similar assistance to both sexes; provide equal treatment, benefits, and opportunities to both sexes; or effectively accommodate the interests and abilities of both sexes.

Legislation and the courts have provided handy guidelines for finding whether a school is in compliance with these regulations. A school can satisfy Title IX by apportioning money to the two sexes in proportion to how many male and female students are participating in athletics or by ensuring that the numbers of males and females actually participating in athletics is substantially proportionate to the general enrollment ratio. A school can also show that even if it hasn’t equalized its numbers yet, it’s at least continually expanding athletic opportunities for the underrepresented sex and has a history and continuing practice of expansion that responds to developing interests and abilities of that sex. And where the percentage of the underrepresented sex participating in athletics is disproportionately low, a school can get off the hook if it can show that it’s meeting that group’s existing interests and abilities.

If a school isn’t in compliance with Title IX requirements, it can add activities or money for women or use a combination of cutting men’s programs and adding to women’s until it smooths out the numbers. This has happened quite a bit, actually. It’s worth noting that Title IX doesn’t care whether a sport can be played by both men and women but just whether enough women are playing in total. So while some college football teams have had women players, in the end football adds much much more to the tally of male players than female.

Because the law applies to any program that’s federally funded, and because almost all American colleges and universities receive some federal funding, Title IX applies to just about every institute of higher education in the country. And because, again, we’re talking about any athletic program or activity, this isn’t limited to only NCAA sports but to any interscholastic, intercollegiate, intramural, or club athletic program. At Cal, Title IX applies to both softball, which is an official intercollegiate program, and ice hockey, which is a club team.

Right now video games aren’t considered athletics under Title IX, so there are no requirements that video game clubs factor into this balance between men’s and women’s athletic programs. Overwhelmingly male clubs like the Fighting Gamers at the University of California Irvine and the University of California Berkeley’s collegiate Starcraft team don’t factor into Title IX considerations because they aren’t athletics.

But what if video games were esports and the government thought esports were athletic sports? Well, then the Fighting Gamers at UCI and the Cal collegiate Starcraft team would factor into Title IX calculations. Because they’re overwhelmingly male, they would add significantly to an athletic sex imbalance that would have to be addressed in some way. Maybe the schools would raise tuition or fees to pay to bring on new women’s teams? Maybe other men’s athletic programs would get cut? Or maybe the ones to be cut would be the Fighting Gamers at UCI and Cal Starcraft?

In short, if the legal system were to accept that video games are sports, collegiate athletic and video game teams would be forced to cannibalize each other until they’re sufficiently balanced with respect to sex. Considering that competitive video games are, at least for now, overwhelmingly male, there’s a strong possibility that video game teams could force the destruction of athletic teams… or alternately that athletic teams could kill video game teams.

“In order to square intercollegiate esports teams with Title IX, college athletic directors have been forced to make some creative decisions. After decades of ineptitude and embarrassing fake girlfriend scandals, Notre Dame scrapped its football program in favor of its overwhelmingly male Boong-Ga Boong-Ga 2 and Call of Duty 200: Black Ops 73 teams. The University of Washington was forced to raise student fees by 20% to afford its Crazy Simpsons Taxi teams. At the University of Alaska, student demand for both men’s and women’s teams in Pokemon: Molasses & Salsa necessitated the end of men’s water polo and women’s beach volleyball. And at Florida International University, administrators unwilling to reapportion funds from their #1 ranked football program denied all requests for male-dominated esports programs.”

GOING PRO

“Like their athletic sport brethren, esports student athletes of 20X6 have the option to end their collegiate careers early to pursue professional ones. They can declare their eligibility for recruitment by professional teams and they can hire an agent, but their decisions are more complex and more dangerous than they might expect.”

One of the most heavily regulated parts of a student athlete’s career is the end of it. Multiple states closely govern the transition from a collegiate career to a professional one.

In Texas, the Participation in Intercollegiate Sports Contests Act declares student athletes ineligible to participate in intercollegiate sports contests if the athlete declares his or her eligibility for professional sports recruitment. In other words, if you make yourself available to the pros, you can no longer participate in collegiate athletics regardless of whether any pro teams even want you. And if you do get drafted or signed to a pro team, well, obviously there’s no return to college sports from that either. Other states have similar laws.

In Indiana, a student who enters into contract with an agent, signs an endorsement deal, or gets a professional sports contract must alert his or her athletic department head at least ten days before the contract is executed. Included in this notice must be the name and business address of each party to the contract, the date the contract will be executed, and whether the contract is for an agent, endorsement, or professional sports services deal. If the student athlete fails to do this, he or she has engaged in a Class D felony punishable by six months to three years in prison. Again, Indiana is just an example of this.

Implications are easy to see for college students with dreams of playing video games professionally in a world where video games are sports. Decide between playing for your collegiate video game team or going professional, because you can’t do both. And if you do decide to go pro, well, better make sure you alert the appropriate authorities!

“The famous Indiana University E-Hoosier Johnny Johnsington, for three years the most dominant collegiate BaraBariBall player in the country, decided to make himself eligible for pro BBB teams with a year remaining in his college career. After a short bidding war, he was quickly snapped up by a professional team. Unfortunately for him, he forgot to tell his Athletic Director about the deal far enough in advance. He is currently serving a three year prison sentence and will be eligible for parole in 20X8.”

ATHLETIC TRAINING

“In 20X6, esports coaches and trainers are common. Professional, semi-professional, and collegiate teams employ entire coaching and training staffs with significant compensation. Elementary, middle school, and high school coaches help their students better adapt to new releases by having them study esports theory and competitive classics like Combatribes, Infinite Crisis, and Chex Quest. E-thletic trainers work with players who encounter game-related physical issues like carpal tunnel syndrome, cervical radiculopathy, and morbid obesity. But not everyone can be a coach or a trainer. These professions are closely monitored by state and athletic association regulators to ensure quality among their ranks.”

Athletic coaching and training are complicated, precise professions whose practitioners have a significant impact on the health and in some cases even the survival of their patients. A poorly recommended exercise can exacerbate a problem; a mistake in traction can cost a patient his life. Just as with other highly impactful professions like medicine and law, athletic coaching and training are closely regulated to better ensure the safety of those who hire trainers. Athletic trainers are typically required by law to meet certain education levels, obtain specific certifications, and develop their skills throughout their careers with continuing education. Let’s look at some examples.

The Illinois Athletic Trainers Practice Act sets up an entire legal regime surrounding athletic training. It decides who can be an athletic trainer, codifies what an athletic trainer can do, creates a licensure requirement, lists qualifications for that license, vests power in an Athletic Training Board to administer the law, and so on. Only people who have graduated from an accredited athletic training curriculum, have proof of certification, and have passed an approved examination can be licensed. Athletic trainers are defined as people who carry out the practice of prevention and emergency care or physical reconditioning of injuries incurred by athletes participating in an athletic program conducted by an educational institution, professional athletic organization, or sanctioned amateur athletic organization. Their duties include supervision of selection, fitting, and maintenance of protective equipment, provision of assistance to the coaching staff in the development and implementation of conditioning programs, counseling of athletes on nutrition and hygiene, provision of on-site injury care and evaluation, and determination of when an athlete may safely return to full participation.

In West Virginia, the Coaching Authorization Regulations were enacted in 1997 to decide who can be a school athletic coach. A coach must have obtained at least a high school diploma or GED, be at least 18 years old, be physically, mentally, and emotionally qualified, be of good moral character, be employed with a board of education as a coach, complete approved training, and receive the recommendation of a county superintendent that he is the most qualified candidate for the position. Ohio, California, New York, and other states have similar rules.

In short, coaching and training are very well regulated professions. In some states only those who work in schools with children of certain ages are regulated, while in others anyone professing to be a trainer regardless of school, professional organization, or amateur organization is regulated. The exact rules depend on where you live, but most states have something to say about this.

Today these regulations apply only to those who work with traditional sports athletes. But a government that views competitive video games as sports may decide that only qualified persons can hold themselves out as video game coaches and trainers. After all, such people could have nearly as significant an impact on their patients as traditional athletic trainers have.

Inspired by the idea of healthy body healthy mind, a video game coach or trainer may prescribe exercises that overlap with a traditional athletic one. What if a patient following poor weightlifting advice worsened an already injured wrist? What if a player with cervical nerve issues suffered an even more severe neck injury when placed in traction? What if a trainer’s practice guidelines exacerbated a patient’s repetitive stress injury to the point that the patient could no longer play or work? A state could make compelling arguments for regulation here.

“In 20X6, the American Evil Geniuses esports team proudly announced its hiring of a famous Brazilian Samba de Amigo coach. When he reported for work, it was discovered that he had never been licensed in any state and was therefore ineligible to act as a video game coach in the US. Instead, he would go on to lead Complexity’s Croatian division to four consecutive SdA world championships.”

UNEMPLOYMENT BENEFITS

“Although some American players in 20X6 earn millions of bitcoins per year, most are not so lucky. As in traditional sports, esports salaries range the gamut from fabulous wealth to bare subsistence. And as in traditional sports, there are more players in semi-professional, development, and exhibition leagues than in the majors. For these players, getting by on esports alone is impossible. During the offseason, they are forced to pursue other work in order to make ends meet.”

Of course, sometimes work simply cannot be found. In order to keep unemployed people off the streets, federal and state governments offer unemployment benefits or unemployment insurance. Not everyone is eligible for such benefits.

In some states, unemployment benefits are off-limits for certain athletes. For example, Texas bans anyone whose income came from an athletic sport, athletic event, athletic training, or preparation for an athletic event from receiving benefits during the offseason if that person is reasonably assured to do so again in the next season. In other words, if you worked as an athlete or athletic trainer last season and will probably do so again next season, you can’t get unemployment benefits between seasons. The federal government and states like Illinois and New York have very similar rules.

If esports were treated as sports under the law, the same problem could confront cyber athletes. Teams participating in Riot’s League of Legends Championship Series receive a lot of money for the season and can qualify to win a whole lot more. But each team splits the pie among a half dozen or more players, alternates, and even managers, meaning that some players may have difficulty supporting themselves during the offseason.

Players with trouble paying bills could try to find jobs, but that may not be successful. A bad economy, underqualification, overqualification, and an unwillingness by employers to hire people for short periods of time could all hurt chances at employment. But as athletes who expect to work as athletes again next season, they would be ineligible for unemployment benefits as well. What would they do?

“Esports work in 20X6 can be grueling, and although the very best players live comfortably and enjoy long careers, others sometimes struggle. Jimmy Chen Jr. never quite managed to live up to his father’s fighting game prowess, but nevertheless carved out a steady semi-professional career. Unable to survive solely on his esports income, he grew accustomed to working elsewhere during the Road to Evo Circuit’s offseason. With the recession of 20X5, though, he could no longer find work. With six months until the next Evo season, he filed for unemployment benefits. His application was rejected.”

MEDIA COVERAGE

“Through its early adoption of online video game streaming technology, Twitch became the country’s largest broadcaster of esports events. Combining its many internet channels with its move into local and national cable television allowed it to show all levels of local, national, and international esports matches, news, and analysis. In 20X6 it is wildly successful, but it’s not the only game in town. And its competitors owe their survival as much to the law as to the marketplace.”

The most prominent federal agency tasked with media and communications regulation is the Federal Communications Commission, or FCC. The FCC governs interstate radio, television, wire, satellite, and cable communications and can regulate media delivery and some content.

In order to foster competition and survivability among cable and satellite providers, the FCC created the so-called program access rule. This rule forced cable operators to sell certain programming to certain competitors. Although most of this rule was scrapped in 2012, it remains in effect with respect to local sports programming.

Let’s look at Comcast as an example. Comcast is a cable television operator that owns its own local cable sports channels called Comcast SportsNet, or CSN. It sure would suck, the thinking goes, if a sports fan who switched from Comcast to Dish Network could no longer watch his local team just because Comcast refused to let Dish buy and show CSN. So Comcast has to sell CSN to Dish.

If the government viewed video games as sports, and if Comcast had local Comcast Esports Network channels, then Comcast would have to sell CEN to Dish as well. And what if esports broadcasters like Twitch and Ustream got into the TV market? Well, same thing: Twitch would have to sell its local esports channels to rival Ustream so that esports fans on Ustream could still watch. Yep.

Now let’s talk about the internet. The FCC’s claims to regulatory authority for the internet, especially with respect to net neutrality, are actually being challenged right now by Verizon and others. We’ll find out who wins eventually, but in the meantime all we can do is speculate. So let’s speculate, baby!

If video games are sports, then Twitch is in the process of broadcasting sports literally 24/7. And if the FCC can regulate the internet, what would happen to Twitch’s broadcasts? Would the FCC enforce the program access rule online, whether as part of net neutrality or for some other reason? That is, would Twitch be forced to sell some of its broadcasts to Ustream or YouTube?

The comparison with TV kind of breaks down with Twitch’s current business model because there are no restrictions on watching both Twitch and any other streaming website and no exclusively local programming. But the program access rule might restrict Twitch’s potential business model choices. Recall the common practice by some content delivery websites to make exclusive deals with certain internet service providers. Remember when NBC wouldn’t let you watch most of the Olympics online if you didn’t have the right ISP or didn’t live in the right areas? If that kind of deal isn’t restricted by other FCC rules, the program access rule might do it under a legal regime where games are sports.

“Although Twitch dominates esports broadcasting as both a cable provider and an internet portal available to certain ISP subscribers, it’s never quite been able to kill off its rivals. In fact, FCC program access rules require Twitch to sell its local TV programming to competitors like ESPN and Dish as well as its local online programming to competitors like Ustream and YouTube, who have deals with different ISPs. Twitch’s own content has effectively kept these rivals alive.”

SPORTS AGENTS

“Esports agents have become powerful and rampant in 20X6. They represent players in million bitcoin deals with professional teams and endorsements. Some agents work alone; others work within major agencies. Power players like Drew Boras, Scott Rosenhaus, and David Graham snatch up the most promising young esports stars just before they go pro and have made a habit of securing impressive deals for them. As in other sports, these agents exert significant influence on leagues and teams through their control of player contracts. But these hidden moguls cannot escape the power of government regulation.”

A total of 42 United States states and territories have a law on the books called the Uniform Athlete Agents Act, or UAAA, that regulates the conduct of athlete agents. The remaining states have similar laws, as does the federal government. In fact, athlete agents are among the most heavily regulated participants in the sports world.

The UAAA requires, among other things, that an athlete agent register with a state authority in order to act as an agent in that state. The athlete agent must provide the state with important personal information, both professional and criminal in nature. The state authority has the power to ensure that agents act appropriately and may revoke an agent’s license if the agent doesn’t act in accordance with the law.

There are other rules, as well. Agents must put money earned by players into separate trust fund accounts to ensure that agents don’t use players’ money. Agents must retain certain records and may not enter into any monetary or gift relationship with schools or student athletes. Additionally, agents may make no false or misleading representations or advertisements.

Although professional video gamer agency is in its infancy, there are already some examples. Esports Management Group, or eMG, represents some of the world’s greatest esports players, commentators, and other personalities from its base in Las Vegas, NV. I myself have represented major fighting game players and esports media personalities in capacities ranging from professional gaming contracts to sponsorship deals. If competitive gaming was a sport, all the regulations on agents would make my working life a lot more complicated than it is now.

“Although 20X6 is a time of plenty for esports agents, there is nevertheless a lot more work to maintain compliance with athlete agent laws. Oh, uh… you don’t care? Well look, this is my invented future and this could totally impact me, sooooo, just go with me on this. It’s a big deal I tell ya!”

LIKELIHOOD OF 20X6 COMING TO PASS

To some degree, 20X6 is already here. As above, the US State Department and several other world governments have endorsed the idea that video game players are athletes engaged in sports. There are pro gamers, pro teams, pro gaming seasons and series, hardcore and casual fans, dedicated media groups and agents, and so on. Many of the significant differences between the present and 20X6 are in degree.

As for the regulations themselves, it’s hard to know how they’d be applied to video gamers in reality. Maybe some of the more draconian regulations in 20X6 would be ignored or applied differently in the real world. On the other hand, such ill applied regulation would hardly be novel phenomenon in government.

The survey of 20X6 in this paper is only meant to be an introduction to potential regulations, not an exhaustive list. On top of collegiate gamers, video game trainers and coaches, unemployment benefits for gamers, video game media outlets, and video gamer agents, there may be regulations in sports betting, advertising, sponsorship, performance enhancing drugs, player benefits, team insurance, gamer and game company standards of care, taxes, and so on.

The risk of esports terminology in government application isn’t just the above regulations. Perhaps an even bigger risk is regulation in areas we don’t or can’t expect. After all, unknowns are often scarier and certainly harder to plan for than knowns.

LESSONS FROM OTHERS

Visas like the ones granted to League of Legends players aren’t available only to traditional sports stars. Remember, theatrical ice skating performers are explicitly eligible for them as well.

How did such a specific group of people as theatrical ice skaters find themselves written into the law? They might have been able to fit into the regular athlete category, but whoever wrote or lobbied for the law must have wanted to guarantee that such skaters could work in the US without being called athletes. Maybe the lawmakers wanted to avoid sports terminology. And maybe they had good reasons for that.

A better known example of this is American pro wrestling. Back in the 1980s, the public still wasn’t sure whether pro wrestling was a real sport or whether it was just “sports entertainment.” When called to testify in front of the New Jersey State Senate, pro wrestling spokesmen surprised some people by claiming that their business wasn’t in sports but entertainment. They’d realized that if they could avoid classification as sports, they could avoid licensure requirements for wrestlers, referees, and promoters; physical exams for wrestlers, doctors near the ring, and insurance requirements; taxes on television rights; and more. Pro wrestling disclaimed sports terminology because it wanted to avoid the regulation that comes with being a sport. It worked.

Of course, some of these regulations might have been beneficial to the wrestlers themselves. It might cost more for pro wrestling leagues to require physical exams for wrestlers before wrestling, but the potential health benefits to the wrestlers are obvious. Not all regulations are bad.

But pro wrestling and theatrical ice skaters can still teach us a couple important lessons. One is that we should think about potential regulations in advance and openly discuss whether we think they’d make sense. The other is that if we’re willing to lobby in the right ways, it’s possible to convince the government that it should help us out without having to call ourselves athletes. That way, we can procure benefits without risking the unexpected regulations that can come with being sports.

CONCLUSION

I understand the attraction of sports terminology in video games. It’s a way to borrow a certain legitimacy from the sports world that can be used in lots of different ways. Maybe sponsors could be better convinced to support a sporting event played by athletes than a video game tournament attended by gamers. Maybe a jock can avoid feeling nerdy when playing video games or maybe a nerd can feel cooler. Maybe a video game company whose revenue comes from continued player use and microtransactions can better convince people to pump hours into a sport than a video game.

But are these advantages worth it? Is the rhetoric of esports worth the potential regulatory picture of 20X6? That’s something we need discuss, because it doesn’t just affect players or teams or leagues. It affects everyone with an interest in competitive video gaming.

Part of my duty as an attorney is to represent my clients zealously within the bounds of the law. If I can help my clients avoid unintended costs or regulations, I believe I need to do so. For some time now, I’ve advised my clients in video games and competitive gaming to avoid sportsified language and esports terminology as much as possible, just in case.

David Philip Graham is an entertainment and video game attorney with significant expertise in the world of competitive gaming. He can be found via his website at DPGatLaw.com and contacted by email at david@dpgatlaw.com. This article is released under a Creative Commons Attribution CC-BY License.

(image courtesy of GamerHub.TV)