Esports – Are they sports and why does it matter? A lawyer’s perspective…

Sports or just games? And why does it matter?

Nick Poggenklaas, Van Diepen Van Der Kroef

This is the second article in a series of guest posts by Nick Poggenklaas, who is a sports lawyer at Van Diepen Van Der Kroef Law Firm 

Are esports ‘just games’? Or are esports real sports, just like football and tennis?

Many people have argued the former. One of the oft repeated arguments to support this view is that esports players are often not physically participating. The action is mostly happening in a virtual world.

I disagree with the people who claim esports is just a game and you do too, don’t you?

In my opinion sport is not by definition an activity which necessarily involves physical action. I think sports such as chess prove this point. Moreover, esports do have all the other ingredients which see traditional sports qualify as sports. Such an ingredient is, for example, that there are organised competitions for esports too. I don’t want to elaborate too much on the answer to the first question, because there are already a lot of articles on this matter.

“Esports are more than a game, they are sports!”

I want to focus on the question of why it’s important that esports are – also in the eyes of the courts – sports and not just games. In order to answer this question I would like to return to the so called ‘Bosman- case’.

Bosman was a professional football player who wanted to transfer from a Belgium club to a French one in 1990. Due to the transfer system which was enforced by FIFA at the time Bosman wasn’t allowed to make this transfer. After five (!) years of lawsuits the European Court of Justice ruled that FIFA’s transfer system was an illegal restraint on the right of free movement of workers, which is laid down in the EU Treaty of Rome. Bosman won the case. FIFA almost immediately changed the transfer system after the European Courts’ ruling, and this re-worked system remains in place today. 

“A restraint on right of free movement of workers remains.”

It’s still questionable if FIFA’s current transfer system is in line with EU law. FIFA however states that the transfer system is a just and much needed instrument in order to keep (international) football competitions fair. Most legal professionals are of the opinion that FIFA’s view is correct and more recent cases more or less also confirm this.

But what do we learn of the Bosman case and the cases that followed? The law is not made for sports. Judges thus sometimes have to make exceptions to the laws which apply to a specific case, because this might be beneficial to a sport.

“At some point a judge shall have to make such an exception for an esports related case. But in order for that judge to make this much needed exception, he or she first has to realise esports are sports and not just games.”

Having mentioned why it’s important that the community and judges agree that esports are sports, I would like to make one final plea. This plea is in favour of Arbitration Courts which focus on esports, such as WESA’s Arbitration Court. A specific esports related appeal court is, in my opinion, not needed. It is my view that the Court of Arbitration of Sports (CAS) is a great legal institute which could handle esports related cases after a party appeals to the Arbitration Court’s ruling.

This is the second article in a series of guest posts on the legal challenges and issues currently at play in the esports industry. You can read the first, on sponsorship agreements, here

Any questions about esports related contracts or disputes? Feel free to reach out to Nick at n.poggenklaas@vandiepen.com