No one can satisfactorily explain what eSports is and when a game becomes an eSport rather than just a game played with a console
Annie Townley
Annie Townley is currently studying the Bar Professional Training Course after completing a legal internship at Sport England. She worked for Active Rights Management on digital rights projects that included eSports.
eSports - Everything to play for?
28th March 2018, 09:40

Live competitive sport can create positive engagement and shared experiences like nothing else; no single event immediately comes to mind that has had the ability to bring society together in quite the same way. Sport can reinforce important ethical values and promote both health and overall wellbeing.

The legal basis for sports rights was founded on a mixture of contract and intellectual property. This enabled sport to create opportunities and packages that both sponsors and media partners would buy into.

Contracts are particularly important to this rights package, as an athlete kicking a ball or running a race does not attract IP of itself. This contrasts with a musician singing a song or an actor performing in a play, which both attract IP in the form of copyright.


The critical value element of sport is that the outcome of an event is unpredictable

One can ask why there are differences between sport and entertainment rights in the first place. The critical value element of sport is that the outcome of an event is unpredictable. A musical composition or play has a script, so one knows the ending in advance.

This unpredictable outcome in sport is preserved at all cost by its rule makers. These are the event owners, governing bodies and pro leagues. Preserving the unpredictability is why the sports industry has WADA and now the ITA (Independent Testing Authority) to fight the unfair advantage that drugs can bring to a sports performance. It is also why match-fixing is monitored so extensively and pursued as a criminal offence. The evolution of ‘in-game’ betting and betting exchanges created a new industry.

If sport becomes only entertainment, then the entire value system which underpins fair competition and an unpredicted outcome is undermined. For example, Leicester City winning the Premier League in 2016, or Andy Murray winning at Wimbledon in 2013.

One might question, therefore, where the sports industry’s current flirtation with the entertainment industry’s eSports games will end. No one can satisfactorily explain what eSports is and when a game becomes an eSport rather than just a game played with a console. The sports industry has noticed however that eSports involve competition. Is that enough to make it sport? eSports already has its own issues with match fixing and substance abuse, so perhaps it has a lot in common.


The most popular eGames are usually owned and controlled by a games publisher, not a sports body, therefore traditional sports governing bodies might have little ability to control and regulate a games publisher

What of the differences? eSports lacks physical effort, save through interaction with a game console. The most popular eGames are usually owned and controlled by a games publisher, not a sports body, therefore traditional sports governing bodies might have little ability to control and regulate a games publisher.

There is another big difference: in contrast to a sports performance, an eSports game and the characters within it are usually regarded as copyright works and attract IP. This inevitably provides a games publisher with an advantage and will be looked upon with some jealousy by the sports industry as negotiating leverage.

Whilst the IOC in November last year cautiously acknowledged that eSports could be regarded as sport, it also recognised that eSports might need to align itself with the traditional values that define a sporting competition. This concern is hardly surprising when one considers that the most popular eSport games seem to involve death and violence. Indeed, they are mostly fiction so there is no accountability for gratuitous violence because the competition takes place within a virtual world.

I would argue that whereas eSport is entertainment, sport, in its ability to entertain, is so much more because of the values and benefits it stands for and promotes. Similarly, whilst reality can be suspended in eSports with no obvious harmful consequences, the same is not true of a sporting competition. A tackle in rugby must take into account the physical consequences.

Why is sport attracted to eSports? Young people now consume media content in an entirely different way from their parents. This is no more evident than the fact that there are more millennials choosing to watch eSports over all the major US leagues. Research by Newzoo, the market intelligence provider, has suggested that eSports revenues will reach $1.5 billion by 2020.


Sport is scrambling to connect with youth, but not every opportunity will be the right one

These changes create real challenges for many existing commercial programmes that underpin sport. Sport is scrambling to connect with youth, but not every opportunity will be the right one.

I am not convinced that the two industries are entirely compatible. Further thought is needed about the differences that make each industry attractive to its own stakeholders, with the emphasis on ensuring the protection of sport and its integrity.

This is a shorter version of an article that first appeared in WIPO Magazine, and which can be found here.

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