Reimagining Legal Boundaries:
Can eSports be considered a Sport?
Dia Shetty
Associate, GameChanger Law Advisors
Isha B D
Associate, GameChanger Law Advisors
Introduction: Heads or Tail?
With its stupendous growth and popularity over the past decade, especially post the COVID-19 pandemic, eSports is one of the fastest-growing sectors of the entertainment and sports industry. Although the eSports industry in India is at a nascent stage, it is said that more than a million players along with more than eighty million viewers are set to be a part of the industry by 2025.[1]
What is eSports?
eSports refers to a highly organized and competitive video gaming environment conducted with an electronic system, where competitors from different leagues, teams or as individuals, face off in video games, such as Fortnite, League of Legends, Counter-Strike, Call of Duty, and FIFA, to name a few. The rise in popularity of competitive eSports triggered what has now become a long-standing debate on whether eSports can be considered a ‘sport’.
There are, to the naked eye, differences between an eSport and a ‘traditional sport’ (such as cricket, basketball, football, etc.). However, the question needs to be analyzed through a legal lens. The Oxford English Dictionary defines sport as “an activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment.” Further, Article 2(1) (a) of the European Sports Charter defines ‘sports’ as “physical activities which, through casual or organized participation, aims at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels”. Strong arguments have been placed to determine if eSports would fall under the definition of a ‘sport’, both backed by relevant research, case studies, and applicable international guidelines and legal framework.
This has caused much of a spark (or a controversy, rather), as it is argued by some that eSports does not fit the criteria to be considered as a sport. This note seeks to analyze this conundrum by first tracing the history and evolution of eSports and deep – diving into debate as to whether eSports qualifies as a ‘sport’ or not.
- The Evolution of eSports
(a) 1990: Ninten-go
It all started with arcades and personal computers, as they became more accessible to people, allowing gamers to compete with each other on a small scale.[2] If you happen to be a Gen-X or a millennial, you may be familiar with the three main games at the time (and where it all began!) – Super Mario Bros, Rad Racer, and Tetris. In 1990, Nintendo organized one of the earliest competitions of eSports in the United States, called the ‘Nintendo World Championships 1990’.
With the advancements made in networking and private internet connection during the late 90’s, more eSport games were introduced, such as StarCraft and Doom, and competitions were also being held on a larger scale. In 1999, the Deutsche Provider Network and Gamers Network Germany hosted a Gamer’s Gathering LAN Party, where more than 1600 gamers competed in online video games.
(b) 2000: eSport World Cups and Global Festivals
In 2000, the Government of Korea introduced the Korean eSports Association – the world’s first government run body to regulate eSport. In the same year, Korea even hosted a global eSports festival, known as ‘World Cyber Games’ in Seoul. Around 180 gamers from across 17 countries participated in the event. Games such as FIFA, StarCraft, Age of Empires II and Quake III Arena were included.
Later in 2003, France hosted the first Electronic Sports World Cup, with more than a hundred and fifty thousand participants and a prize money was also awarded to the winners. At this point in time, the gaming world saw more and more competition amongst game developers, which encouraged them to publish a variety of online games (single and multi-player).
With eSports becoming more popular and accessible to people, there was a boom in its growth between 2010 and 2020; there was a growing dominance of video games as a cultural industry. The annual game industry revenue almost doubled in this duration, from 78 billion USD to 137 billion USD.[3] In fact, the steady increase in the number of viewers and sponsorships contributed to a global revenue of 1084 million USD in 2020 for the eSports industry. Game developers introduced new video games, some of which are amongst the most popular games till date, such as PubG and Fortnite. Game developers even conducted several international competitions, for instance, Riot Games hosted the first League of Legends World Championship back in 2011, which is now an annual professional world championship league.
Another major development during this time was the broadcasting of eSport competitions on live television. It was around this time, where online streaming services, such as Twitch, began streaming eSport competitions world-wide, making such competitions more accessible to fans.
(c) 2020: A Focus on Governance
With the increase in number of gamers and teams now entering into viable commercial contracts with streamers, game developers and sponsors, the eSports industry has seen a spike in commercial partnerships between the gaming ecosystem and global enterprises. For instance, Red Bull has supported many eSport athletes, including India’s Ankit Panth, and has even hosted eSport tournaments, such as the Red Bull Campus Clutch.
Currently, there are several major eSport competitions that are regularly being held worldwide, such as the Electronic Sports League. To the relief of the gamers, eSports will now make its debut at the Asian Games 2023 (which is to be conducted in 2023 due to COVID-19 restrictions in China), with medals that will be awarded for eight games! The eight medal games include FIFA, PubG Mobile, Arena of Valor, Dota 2, Dream Three Kingdoms 2, HearthStone, League of Legends and Street Fighter V.[4]
But even after all these years, why is this debate still relevant?
This debate is still relevant for several reasons, as it has implications in the way in which eSports is treated; in terms of conducting competitions at a professional level, broadcasting such competitions, and its inclusion in various international sporting events, such as the Olympics (as discussed in Part 3).
- Progressive v. Traditional: The Two Schools of Thought
Globally, the ongoing debate on esports being considered a sport has been probed under the following two schools of thought:
(a) The Traditional Approach
The first school of thought adopts a traditional approach to distinguish traditional sports and eSports. It is argued that, in traditional sports, players are physically present on the field or court alongside a referee and there is a clear set of rules governing the sport. On the other hand, with respect to eSports, players merely have to log in to the game on their phone or computer; and technically, there is no physical activity involved per se. Moreover, since esports is focused on electronic systems and technological immersion, it is difficult to determine if it is mere understanding of the technology or use of skills that are similar to that required in traditional sports that is central to winning in eSports.
Additionally, while all eSports are video games, not all video gaming can be classified as a sport. In order to be considered as a sport, it is vital that the playing of video games must have: (i) a structure with rules and regulations; (ii) be organized so as to determine adherence to the rules by an impartial body or a person (i.e., an ‘Umpire’ or ‘Referees’); and (iii) competitive in a manner so as to distinguish winners and losers. Although it may be easy to distinguish winners and losers, since game developers themselves can participate in the game and the lack of an impartial bodies overlooking the game, makes eSports inconvenient to be considered as a sport.
(b) A Progressive Approach
As for the type of physical activity involved in eSports, an argument can be made that it requires savvy movements and extremely agile reactions to maneuver different game controller devices. This can further be substantiated with multiple scientific studies that have established links between physical exertion and eSport games. Regarding mental skills, a professional gamer must learn different skills and techniques to get better. Researchers have conducted studies that have shown people develop skills from playing action video games and that many skills are obtained by playing action video games. Researchers have identified that there are clear enhancements in an array of perceptual, attentional, and cognitive skills. Significant enhancements related to vision skills regarding augmented performance, speed of processing, perceptual decision making, and multisensory intervention have been proved in evidence based scientific studies.
Further, in a sport of any nature, there has always been a divide between skilled players and the people that play for fun. This divide can be ascertained in eSports as there is a clear divide in the win – loss record between players that are considered professionals and those that are not. The advent of this competitive vocation has been accompanied by the development of professional infrastructure with similarities to the world of physical sports which includes teams, leagues, team owners, player contracts, sponsors, tournaments, and so on.
(c) Recognizing eSports as a Sport
While there is no definitive answer to this yet, the only vital determination for eSports to be considered as a sport, is its recognition as a ‘sport’ by official governing bodies. eSports has been formally recognized as a sport by many countries around the world, and the federations of eSports have also been recognised statutorily. The formal nod by the Olympics and Asian Games has provided a great boost for the adoption of eSports and set a precedent for its status as a ‘sport’. The debate of whether eSports is a sport is bound to resurface until gaming is able to transcend cultural and generational barriers.
- Can eSport be considered as an Olympic Sport?
Although the above arguments may be sufficient, this may not be solely persuasive for eSports to be considered as a sport. In order for a sport to be considered as an ‘Olympic Sport’, it must be governed by an International Federation (“IF”). This is required in order to conform to the rules of the Olympic Charter, the World Anti-Doping Code as well as the Olympic Movement Code on the Prevention of Manipulation of Competitions. Further, mere recognition of a sport by the International Olympic Committee (“IOC”) does not lead to the sport becoming part of the Olympics. The sport’s IF is required to apply for admittance by filing a petition establishing its criteria of eligibility to the IOC. The IOC may admit the sporting activity into the Olympic program in one of three different ways: (i) as a sport; (ii) as a discipline (i.e., as a branch of a sport); or (iii) as an event (i.e., as a competition within a discipline). Further, the IOC’s mission is to unite the world in peaceful competition and pursuance of this mission by a sport is central to its recognition as an Olympic Sport.
eSports having been played on a large scale consisting of various federations, such as the eSports Federation of India and the European eSports Federation, with the International eSports Federation taking the lead, can be considered to be an organized sporting industry. Although there are private game developers organizing their own competitions, the scope for professional players to play both in federated eSports and private competitions paves way for the eSports played under federations to be recognized as an Olympic Sport.
Adding to the above points, there were discussions in the Communique of the Olympic Summit (2017), that revolved around the recognition of eSports in the Olympics. The discussions shed light upon the potential for competitive eSports to be considered as a sporting activity, as the players prepare and train with an ‘intensity’ that could be compared to athletes in traditional sports. However, it was reiterated that the contents of eSports should not infringe the Olympic values. Recently, the International Olympics Committee also announced that Singapore will host the first ever Olympics eSports week in 2023. With these discussions taking place, it can be said that there is an active push by key stakeholders in the sporting ecosystem to recognize eSports as an Olympic Sport.
Nonetheless, it is imperative to take into consideration that all eSports may never make it to becoming an Olympic Sport. Further, the eSports industry valuation, as provided abov,e speaks for itself and its introduction as an Olympic Sport is bound to financially benefit the IOC and all its sponsors. The recognition of eSport as a sport will provide players with the status of athletes which will in turn ensure their rights and facilitate legal protection.
- Two Peas in a Pod: Our Analysis of the Ongoing Debate
As mentioned in this article, there is no definitive answer to this question. However, we believe that competitive eSports should be considered as a ‘sport’. Why?
Well, for one, like in traditional sports, there is an element of skill, preparation and physical exertion involved. There are also similarities in terms of the stakeholders involved. eSports consists of athletes, teams and their respective owners and sponsors, leagues, tournaments across different levels. Now, we even see players entering into commercial contracts with the stakeholders, as it is done in traditional sports.
Second, commercialization of professional sports can be observed in various traditional sports (for example, the Indian Premier League in cricket). Having taken this into consideration, it is imperative to not disqualify eSports as a sport merely due to the lack of regulations in commercialization of competitive gaming. It is to be noted that regulatory frameworks do not have to be the same and there is always room for innovation (for example, the approach towards regulation of the commercial aspects is not the same in cricket and football). Adaptation of this open-minded approach may result in the development of a regulatory framework for the billion-dollar eSport industry.
Third, we believe that the structure of eSports, in terms of the International eSports Federation taking charge, does lead towards an organized eSports industry. This organized structure ticks one of the boxes for eSports to be considered as an Olympic Sport. And as mentioned above, various stakeholders (including the International Olympics Committee itself) are advocating for consideration of eSport as a ‘sport’, given that the eSports industry adheres to the Olympic Charter and values.
Lastly, the three values of Olympism are excellence, respect and friendship. They constitute the foundation on which the Olympic Movement builds its activities to promote sport, culture and education. If we look into the eSports industry, there is a unique feature of eSports – which is the concept of a ‘community’. Most games, such as PubG and Call of Duty, have communities – a platform where fans can interact with each other, get news about upcoming events, learn more about new features of the game and so on. We believe that this unique feature of eSports adheres to the values of Olympism as it is promoting sports, culture and education across communities.
While there are glaring differences in the manner in which we view eSport and traditional sport, it’s just two peas in a pod! We are of the opinion that the umbrella term ‘sport’ is broad enough to be interpreted in such a manner so as to include eSports under its realm.
The Authors would like to thank Amrut Joshi (Founder, GameChanger Law Advisors) and Mahit Anand (Senior Associate, GameChanger Law Advisors) for their inputs.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.
[1] Ashish Pherwani, “The Dawn of eSports in India” (Ernst & Young, June 28, 2021) available at: https://www.ey.com/en_in/media-entertainment/the-dawn-of-esports-in-india
[2] Florian Larch, “eSports History: How it all began”, ISPO (February 8, 2023) available at: https://www.ispo.com/en/sports-business/esports-history-how-it-all-began
[3] Will Partin, “The 2010s were a banner decade for big money and tech – and esports reaped the rewards”, The Washington Post (January 28, 2020) at: https://www.washingtonpost.com/video-games/esports/2020/01/28/2010s-were-banner-decade-big-money-tech-esports-reaped-rewards/
[4] Rahul Venkat, “Asian Games 2022: Esports to make debut; FIFA, PUBG, Dota 2 among eight medal events”, Olympics News (September 9, 2021) available at: https://olympics.com/en/news/fifa-pubg-dota-2-esports-medal-events-asian-games-2022