Op-Ed: Exploring the 'untrodden paths' in the rise of esports

17 Aug 2020

By: Sport Industry Group

As the coronavirus pandemic thrust esports into the mainstream spotlight, there is a growing emphasis on the role traditional sports are playing in the space. 

Howard Kennedy’s Alexander Wood explores one of the ‘untrodden paths'; taking a look at why football clubs in particular might want to look at employing ePremier League gamers.

The growing success of esports may have been accelerated by the COVID-19 pandemic and the subsequent lockdowns, but the sector was already experiencing growth long before it was thrust into the spotlight in the absence of live sport this spring.

Leagues have shot up around the world and gamers made famous, and the success of games like EA SPORTS’ FIFA series resulted in both EA Sports and the Premier League launching the ePremier League in 2019. 

Not only does this trend raise interesting legal challenges regarding governance, but there are also questions to be considered regarding the employment status of the gamers themselves. 

Currently, only a minority of the Premier League clubs involved actually employ the gamers to represent them, but this might be a strategy worth adopting.

In the 2019 ePremier League, most Premier League clubs did not sign or even pay their representatives. Last year, it seems that FIFA tournaments were a low priority for the clubs and the result was a hesitance to create a more official relationship with their gamers. This could be for a variety of reasons, but the obvious negative when hiring someone as an employee is that the club would become liable for any employer obligations. 

Examples include the requirement to pay PAYE and National Insurance tax and, most importantly, it becomes more difficult to remove staff once they become eligible for protection against unfair dismissal claims; especially problematic if the club simply wants to swap in a more skilled gamer.

But these drawbacks seem to be heavily outweighed by the potential positives. 

As the ePremier League status grows, the gamers will likely start to be seen as valuable assets worth keeping. Slowly the Premier League has begun to appreciate that the younger audiences often place a higher value on FIFA matches than real ones; it was recently revealed in a poll that 60% of young football fans (under 30) prefer digital football to the real thing. This, combined with esports filling the temporary Covid-19 sports gap, will accelerate the rise of the ePremier League as an important competition for the football clubs.

Therefore, acquiring and retaining a gamer who can entertain the crowds and win online tournaments will be hugely important. Based on the poll mentioned above, success in the ePremier League offers a brilliant opportunity in a number of areas. Clubs can: increase their fan base; ensure that fan base is caught and maintained at a young age; and commercialise on the already rapidly growing viewing figures and sponsorship deals. Naturally the best gamers will be attracted to clubs offering them the best deals and such deals will likely embrace the gamer as an employee.

Aside from being competitive though, employing the gamer would bring other advantages in terms of how the clubs could exercise control. For example, if the gamer brings with him/her any IP the employer could require that it is vested in the club rather than the individual. Additionally, particularly as many gamers will be very young, the club would be able to control what the employee can do on social media. Going forward, as the ePremier League grows ever more popular, clubs may even want to use the gamer for releases of new kits and an employee relationship enables them to do that.

Finally, in the more immediate future, the clubs may want to formalise the relationships purely for protection against any future claims. 

As it stands, the gamers are already most likely engaged under some form of contract, though not in writing, as they are performing a service for the club. Therefore there is a definite risk that a gamer could bring a claim asserting that they are an employee. The immediate benefit of a written contract is that the terms of the engagement can be much more clearly defined in the event of a claim.

Overall, creating these new contracts for the club and their gamers will be an exciting but a relatively untrodden legal path. It is undoubtedly an opportunity for more modern thinking lawyers to provide valuable expertise, as is the regulation of any future transfer market which will need to be governed by EA or the appropriate authoritative body