Getting to the Point: What’s Leveraged?

I struggled deciding how to structure this. There’s a LOT to talk about, and I want to make sure I give due regard to each side of each interest. As such, I will format each header like this:

[LEVERAGED INTEREST]: W/X/Y/Z — W/X/Y/Z

The interest will be provided first, followed by the current balance of that interest as I understand it (opinionated of course), and lastly will be the balance as I believe it can and should be reached for a healthier esports ecosystem. W, X, Y, and Z represent publishers, organizers, teams, and players in that order.

Copyright: 95/4/0/1— 75/10/5/10

For my last semester in law school (graduating tomorrow by the way; hooray me!), I wrote a research paper on esports and copyright law that I will publish some day once it’s polished, centered on a quote I always hear: “The IP is King.” I believe that most of the power balance in esports right now is attributable to the way the industry approaches copyright law. Everyone assumes, and as I learned probably rightly so, that game publishers have full rights over their title esports, and can for the most part restrict them from ever being lucrative. That is the approach Nintendo had taken toward Smash Bros. until recently, and as a result the industry has struggled to tap into its incredibly dedicated playerbase. But most other publishers have realized that esports provides a very valuable advertisement and retention mechanism that can bolster the longevity of their titles. As such, we have seen some companies like Riot Games take a very hands-on approach to running their esports industries, while others like Valve and Blizzard work closely with third-parties while still holding a final-say on overarching macro decisions.

In my paper I argued that much of esports’ current and growing legal problems can be attributed to the over-deference we give publishers under copyright. While fair use seems to be a losing argument, there is room for an antitrust argument against publishers wielding copyright as a sword to regulate ancillary issues like team ownership rights, drug-testing procedures, and license grants to organizers that may yield anti-competitive practices. While copyright grants a set of exclusive rights to copyright owners, antitrust prevents copyright owners from using those rights beyond the four-corners of the copyright scheme. I believe that organizers in particular can and will push back on publisher decisions in light of copyright, and antitrust may be the answer they need.

A more interesting argument lies in authorship. Copyright vests in the author or authors of a work. If we assume licenses are needed and acquired, there exists an interesting argument about whether professional players can or should be considered co-authors in the fixed esports production that later results. For now, it’s largely a legal thought exercise. The obvious analogue is professional sports, players have generally lost because (1) professional sports are largely an unchoreographed spectacle where the athletes are the subjects rather than authors of what happens and (2) the work is not actually fixed until it is recorded, making the broadcast companies authors of any copyright that might vest. Players also generally divest any copyright interest they may acquire to teams and league organizers through contract/participation agreements. But it’s certainly not an impossible argument. As lawyers join the players’ side of the bargaining tables, they will hopefully push back on the IP-divesting clauses. For now, players have already started exploiting their copyright potential through streaming and youtube content.

Brand/Good Will: 40/15/35/10–25/15/35/25

Before law school, I studied poli sci and focused on electoral practice and research. A concept that comes up in electoral and legal research all the time is “political efficacy.” Those of you in pharma will recognize efficacy as a measure of effectiveness of a drug given the ailments that it is intended to help. Political efficacy is instead a measure of the faith/trust that citizens place in the system to produce a just result, and their ability to influence it. Somewhat pessimistically, some have posited that government cares less about whether it is actually just and more about whether it is perceived as just. Political efficacy is a measure of good will.

Fans of esports tend to be fans of the games first, teams second, and players third. The good will associated with each generally follows the same trend. Publishers have the unique ability to extend the good will associated with their titles into the esports space, as fans assume they will act in the best interests of both. As such, even when questionable decisions are or are made on a questionable basis, fans will give publishers the benefit of the doubt and assume that proper investigations were done. Likewise, teams hold and use a lot of good will in their fan bases, as we now have a number of well-established organizations that cover a multitude of esports titles.

What I want to see more is players that use their individual brands to find economic success and more importantly bargaining power in esports. As Ryan Morrison recently stated, players tend to undervalue themselves right now leading to incredibly lop-sided bargaining and pensiveness regarding contract rights. When a team wants you, they want you, not the next person on the Challenger ladder that plays your position. For players, personal brand is more than your skill. It’s your appearance, your talents, your history, your potential, and your demeanor. My favorite people in gaming are those that make a name for themselves against the curve. Imaqtpie is one of my favorite non-CLG players ever (❤ Austin Shin) because he went against the esports grind, focused on his personal brand, and is now a homeowner at a very young age. I want to see more Micheal Santanas: not necessarily leaving esports to pursue streaming but using their personal worth as leverage in esports bargaining.

Information “Access”: 40/30/25/5–30/25/30/15

I put this heading in quotes because it’s probably a misnomer but I can’t think of a better title. By access, I mean the ability of a party to learn about important details and discern them properly in a way that informs their decisions. My numbers are probably off in terms of how access actually balances out among the parties, because so much of this is behind closed doors. But proper decision making starts with knowing everything you can about a topic.

The only real disparity I want to focus on is regarding players and their access to proper information. Many players have avoided seeking legal help regarding contracts, thinking that doing so would count against them in the eyes of their teams. As lawyers provide pro bono services, speak up about such exploitative practices, and organize entities like the Esports Player Resource Center (shameless plug), those sentiments will start to leave. But even with institutional resources behind them, players need greater access to the ongoings of esports. Whether it be patch changes, team or player bans, or scheduling conflicts, so often do players speak in hindsight about being left out of discussions leading up to decisions. Unfortunately unless pubs, orgs, and teams simply invite them into the decision making process, this shift will likely have to come about as the result of proper bargaining by player lawyers or organized efforts such as the ever looming “player union.” Whatever the means, players should have a greater voice in macro decisions regarding esports, and that starts with access to the relevant information.

An offshoot to access that I was going to make a separate heading is “timing.” The first shooter often commands the flow of fan and industry response to decisions in esports. The WESA leak set the tone of skepticism toward WESA, regardless of its intentions. Competitive Rulings coming out 30 minutes after notifying involved parties of the decision limits teams from doing proper damage control. Perhaps the most important aspect of access to information is the ability to go public with it. Investigative journalism certainly helps alleviate the power in going public. But teams and players generally play on their backfoot to public notifications, and struggle to respond well as a result.

Community Response: 25/5/30/40–20/10/25/45

This will be the last one, though it’s certainly not the last intangible that parties should be considering in how to leverage their strengths at the bargaining table. I just don’t think myself competent to comment on other aspects like industry ties and non-endemic reach.

It’s a sentiment that echoes through the industry: Reddit has too great of control over the publication and discussion of news in esports. As an observer who started mostly on reddit and through that and social connections got in touch with “involved” industry folk, it’s astounding how much reddit affects public responsiveness to news and industry concerns. Generally speaking, news that affects an esports industry will always have ramifications for other esports industries. A petition to get white house recognition of esports P-1 visas goes beyond Leffen getting to compete in the U.S. Teams organizing into an association to better represent team and player interests in CSGO should be news for all esports industries, especially when they have teams in other esports and expressly state that expansion is possible. Yet subreddits segment the wider esports audience and rules regarding relevance limit the kind of information people have access to.

I made a twitter initially for the sole purpose of following news in esports beyond having to stalk reddit for updates. But most people can’t no-life observe esports like me as a full time student with time on my hands. I would love to see /r/esports take off or for subreddits to be more inclusive of news from other esports titles. But barring that, industry has to find a way to distance itself from its reliance on reddit. Steps like ESPN taking coverage and esports reaching a wider non-endemic audience through ventures like the Turner league are a great start. As publications and organizers find ways to engage the audience beyond reddit, all parties will be able to leverage public response better.

But nothing is more sympathetic than a mistreated player. With counsel entering the scene surely advising players and their teams of the power of going public, players will be more aware of the power that community brings. It’s certainly the least of the four here, but it’s probably the only one that players have the greatest leverage and will be the starting point for greater changes going forward. Expect to see players tap into their fanbases more often when exploitation and abuse occurs.