LLM International and European Public Law: Track European Union Law Master Thesis
Electronic sports: a potential new role for the European Union
Koen van der Wielen ANR: 635905
Thesis Supervisor: prof. Dr. L. Hancher Second Reader: prof. Dr. P. Larouche
9 September 2013
Acknowledgements To my parents for always supporting and encouraging me throughout my study. Because of you I never doubted that I could succeed.
To my friends, and especially Emelie, for showing interest in my research, and who helped me see more points of view or helping to rethink certain issues when I got stuck.
To Ms Deltour from the Commission’s Directorate General for Communications Networks, Content & Technology (DG Connect) who found the time to brainstorm with me on the possible interests of the European Union in the electronic sports field.
To my supervisor, professor Hancher, who helped orient me and thought along in this new entirely new subject. Her contributions also helped shaping this thesis in its final form, as well as arranging my thoughts during the research itself.
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Contents Acknowledgements ...... 2
Chapter 1: Introduction ...... 5
1.1 Technology ...... 5
1.2 Competitive gaming ...... 6
1.3 The research ...... 8
Chapter 2: The eSports field ...... 9
2.1 Definition ...... 9
2.2 Development ...... 10
2.2.1 Video games in general ...... 10
2.2.2 The eSports ...... 12
2.3 Characteristics of modern eSports ...... 14
2.3.1 International aim ...... 14
2.3.2 Match coverage ...... 15
2.3.3 Professional gamers ...... 16
2.3.4 Inconsistency ...... 16
Chapter 3: The regular sports ...... 18
3.1 Definition of ‘sports’ ...... 18
3.1.1 Body training ...... 19
3.1.2 Technology ...... 19
3.2 Branch or separate tree...... 20
3.3 EU and sports: Legal framework ...... 21
3.4 Professionalism and amateurism ...... 24
Chapter 4: South Korea and eSports ...... 27
4.1 Online nation ...... 27
4.1.1 Infrastructure ...... 27
4.1.2 PC Bangs ...... 28
4.1.3. Korean eSports ...... 29
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4.2 Government involvement ...... 30
4.3 Conclusion ...... 31
Chapter 5: Goals and interests ...... 33
5.1 Boundaries ...... 33
5.2 Citizen freedoms ...... 34
5.3 Morals and health ...... 35
5.4 Gambling ...... 38
5.4.1 Relationship between gambling and gaming ...... 38
5.4.2 Betting ...... 40
5.5 Gender discrimination ...... 40
5.6 Excessive playtime ...... 42
Chapter 6: Concluding recommendation ...... 44
6.1 Concept...... 44
6.2 Legal basis ...... 44
6.3 Internal market ...... 46
6.4 Adverse effects from gaming ...... 47
6.5 Online gambling...... 48
6.6 Women in eSports ...... 49
6.7 Managing game time ...... 50
6.8 Other interests ...... 51
6.9 Concluding remarks ...... 51
Sources ...... 53
Books and published articles ...... 53
Websites and online articles ...... 55
Case-law ...... 59
EU Legislation and other documents ...... 59
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Chapter 1: Introduction
1.1 Technology A well-known characteristic of modern society is the rapid technical development: the constant upgrading of technologies. An obvious example of this is the development of televisions. Where 50 years ago most televisions were still without colour, the last decade or so alone has introduced LCD TVs, LED TVs, Plasma TVs (all subsequently of better quality), and also Smart TVs (with internet connection) and 3D TVs. Mobile telephones are another good example: while twenty years ago most people wouldn’t have seen the necessity of always being accessible by phone, having a cell phone has become the standard now. The unhandy big phones of long ago have been developed into the small handy smart phones which we can see in advertisements all around us (and looking at its functions and possibilities, could be called a small pocket computer as much as a mobile phone). Often technical development also brings new possibilities for leisure activities. A clear example is Geocaching. In 2000 the accuracy of GPS (global positioning system) improved tenfold when the US decided to take away limits to civilian use of the high quality signals of American satellites. This lead to a new activity called Geocaching, where civilians use their own GPS to walk predetermined routes or find hidden boxes called ‘caches’ (often with a logbook inside) left behind by colleague enthusiasts.1 In only a decade this hobby has found its way all over the world, something that wouldn’t have been possible if the accuracy of GPS hadn’t improved (since following these routes, or finding these hidden boxes requires your GPS to tell you where exactly you are with a margin of a couple of meters). Another leisure activity that is inherently linked with technology, and which will be the focus for the topic of this thesis, is the playing of video games. A possible definition of video games (or electronic games / computer games) is that they are interactive games operated by computer circuitry.2 This term includes many different variations of games and the platforms on which they are played. Examples of platforms are the personal computer (PC), arcade consoles, consoles that need to be connected to your TV, mobile phones, etc. The games vary from small, easy, and quick-to-finish games to large, complex, and almost endless games. Obviously video games are closely linked with technology: without the development of these platforms and the technological capability to run these games, video games wouldn’t exist nor develop the way they do. Though video games are finding its way in society in different ways, and sometimes this can even be an educational help for
1For more info about Geocaching,
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teachers or driving instructors, this thesis will focus on video games as a way of leisure as a starting point, since it is in this area that an interesting development has taken place.
1.2 Competitive gaming Though a closer look at the history and development of video games is left for the next chapter, suffice to say that in general video games have always been about leisure for those who play them. Of course for game developers and publishers (having grown into a large video game industry with a revenue of 78.5 billion US dollars that was predicted for 20123) video games mean business, and for them video games also revolve around sales and customers, but for the longest time people who play the games did so for leisure, like one goes to the cinema, reads a book, etc. While video games still play this role in society, it has also gained a new role in the form of professional competitive gaming. Professional competitive gaming, also called electronic sports (or eSports in short), has given a new dimension to the playing of video games. The term itself is rather descriptive: it is professional (individuals receive remuneration for their performance), it is competitive (teams and individuals compete against each other) and the medium is videogames. Though eSports will be in detail explained in the next chapter, to get an image of how this works it is easiest to keep ‘normal’ sports like football or tennis in mind (further called ‘regular sports’). Imagine a video game in which two players compete against each other and only one of the players can fulfil the goal of the game (which depends on the specific video game, for example capture the opponents virtual base, score the most points, etc.), making that player the winner. Now put this game in a tournament model, where the winners of each match now have to compete against each other, after which the winners of these games compete, etc. until only one player is left: the winner of the tournament. Now this player get the grand prize of the tournament, and the other players get lesser prizes. This model could have been used to describe a tennis tournament as well. These eSports tournaments are taking place all over the world, and the whole scene is growing fast. Just as a small indicator: eSports team Taipei Assassins won a prize of one million US dollars in 2012 for just one tournament (though it being the finals)4, and game developer Riot Games has increased the total prize pool for a new season of their popular competitive game League of Legends from 100.000 USD to five million in just one year, and their broadcasted last finals attracted more than 8.2 million viewers worldwide.5 This development does not necessarily have to be problematic, but it does raise the question whether this process should be regulated by the legislator to prevent or reduce the possibility of problems arising. There can be issues related to the
3 Nayak 2012. 4 Peterson 2012. 5 Breslau 2012.
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professionalism of a field like cheating, betting, match-fixing, transfers of players, etc. that can be found in the regular sports field as well. If EU law, like the free movement principles, are not applied properly, this could mean a severe limitation on the possibilities of EU citizens, for example by making it impossible for competitive gamers to move freely throughout Europe. There can be issues that are linked to the special nature of eSports, like a dependency on network systems, the direct influence of game producers on the games played, as well as the link between amateur and professional gaming: can they be separated, or should any issues with amateur leisure gaming also be considered? Examples of these kinds of issues can be moral issues with certain video games, possible negative effects on health by playing video games excessively, as well as a negative position of women in the gaming field. Another example is the possibility of linking video games with online gambling games, creating the risk that individuals might be drawn into the betting world. One might argue that this is not a task for the legislator, and the specific field (in this case eSports) should just solve problems themselves when they present themselves, just like self-regulation (under the banner ‘specificity’) has always been important for regular sports. On the other hand, the many recent regular sport scandals show that this does not always work out: think of the doping scandal in the cycling world6, the violence in the football scene7, and illegal drug use and organised crime connections of Australian athletes.8 The above mentioned examples show that failure in the regular sports world to prevent some problems from taking root can have great impact in society. For eSports it would be no different: although the scene is not yet really main stream in most parts of the world, and though there are plenty of differences with the regular sports field, problems could start arising that might negatively influence the society, especially when the field is experiencing growth similar to the eSports scene at the moment. The European Union hasn’t taken any action in the eSports field so far, no eSports Regulation, Directive or soft law like guide lines, to guarantee that its values and interests are protected in this field. Especially since this field is changing and growing so rapidly, and is interlinked with the new technological era, it would be rational to research how the EU should be active in the field of eSports. Therefor the focus of this thesis is twofold: to see if the EU can make a clear distinguishing line between amateur and professional gaming (and subsequently how strong this line is), and how it can and should deal with the issues that eSports can bring with them.
6 Schlink 2012. 7 McLaughlin 2012. 8 Rourke 2013.
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1.3 The research The central research question for this research is: How does the EU need to be active, through legal means, in the field of eSports to guarantee the interests of the EU and what actions need to be taken? This question will be answered by the examining of multiple sub questions. First in Chapter 2 the sub question ‘What exactly does the field of eSports entail?’ will be answered. The chapter will start with explaining the term ‘eSports’ in more detail, followed by a short history of video games to explain the development of competitive gaming. Then the important characteristics of the field of eSports will be explored with examples and practices in the field. Chapter 3 will answer the following sub question: Can a comparison between eSports and regular sports (including EU actions in the latter field) be used as a source of inspiration for which actions the EU could take in the eSports field? This chapter will examine the relevant similarities and differences between eSports and regular sport fields, to conclude whether the EU’s role in the regular sports field can be used as a source to decide what role is necessary in the eSports field. Important is also the distinction between amateur and professional sport, to see if there’s a difference between regular sports and eSports here and if this affects the role of the EU. The sub question “What characteristics does the field of eSports have in South Korea and can these (partially) be applied to the EU as well?” will be the topic of Chapter 4. The position of eSports in South Korea is the focus in this chapter, where practices and examples found in this society will be examined. South Korea is chosen for this purpose not only because eSports, as it has developed, has its origin in part in this country, but also because the South Korean society has embraced eSports, making it more mainstream, which can provide a better view at how government and eSports can interact. Since South Korea has an active government policy in the gaming field it can serve as an example of what form government action might take. Chapter 5 will aim at finding the reasons for EU action by answering the sub question: What main interests does the EU have in eSports? The focus of these interests will be on the interests of the European citizen as an individual in the eSports field. More economical interests, like supporting the video game industry will not be considered, which is explained in the chapter. It will be important to see if these interests can be solely applied to professional gaming, or whether possible issues in amateur gaming change the EU’s view. Finally Chapter 6 will serve as a conclusion to the research. It will take the form of a recommendation to the European Commission, bringing all the information gathered in the previous chapters together to come to substantive actions that the EU could take to protect the identified necessary interests.
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Chapter 2: The eSports field
2.1 Definition The term eSports is relatively new, appearing in the late nineties press releases in which competitive gaming is compared to regular sports. A British gaming tournament organization even tried to make the English Sports Council recognize eSports as an official sport.9 The usage of the term appears to be more of an attempt to change reputation than a redefinition of professional competitive gaming. A new term to remove the negative image that some might have associated with gaming (gamers as anti-social and lazy individuals) and instead bringing competitive gaming to the big screen, with real ‘cyber athletes’. In essence ‘eSports’ is nothing else than ‘professional competitive gaming’, but the term has caught on, at least in the eSports field itself. To see what eSports really are, it is necessary to look at its three elements: professional, competitive and gaming. The first two are straight forward: players get rewarded for their performances so it is professional, players compete against each other (or against other teams) to become the winner, hence it is competitive. It is the third however, that distinguishes eSports, namely that the medium is video games. This requires a definition of video games. The Merriam-Webster dictionary tells us a videogame is “an electronic game played by means of images on a video screen and often emphasizing fast action” while the definition that Ray (ed) uses in his detailed history of video games (which was mentioned in Chapter 1) broadens itself to ‘interactive games operated by computer circuitry’.10 Fact is that it is not so easy to sharply define video games, since there are so many different kinds of games. The only real common elements seems to be that a screen is involved (though whether this is a built in screen, TV screen, computer screen, etc. differs) and that there is some kind of interactivity (if the player didn’t have to do anything, it could hardly be called a game). For the rest almost all variations possible exist. From games that you play alone like The Elder Scrolls V: Skyrim to games that you play with thousands of other players in the same world like World of Warcraft. From games that give you specific missions that you have fulfil before taken to the next level like Halo to games in which you’re free to roam a virtual city, deciding what you want to do like in Grand Theft Auto. Even from games that have such realistic visuals TV stations accidentally use in game footage in their news reports like in Assassins Creed11, to games that are text-only with nothing else than your imagination and some text to keep you interested (somewhat like an interactive novel, though they can have surprisingly much depth) like SwordThrust (these games were especially popular in the 70s and 80s when graphic capabilities
9 Wagner 2007, p 182-183. 10 Ray 2012, p. 1. 11 Rankin 2013.
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were not so high to begin with). There are even games that have no clear goal, for example in the popular Sims series in which the player creates a virtual family and keeps track of everything relevant (from keepings the ‘Sims’ happy, building a house, finding jobs, learning to cook, etc.) and in theory could play forever without getting to a specific end of the game. All this variation forces any definition to be very broad, but this does not necessarily have to be problem. It is the eSports field itself that in the end decides which games are used for competitive play, just like not every physical activity will become an official regular sport. Just as with regular sports, where some physical activities (for example playing with Lego) don’t lend themselves for competitiveness, and some physical activities (for example playing hide and seek) are difficult to make a professional scene from, not all video games will end up in eSports. On the contrary, only a limited number of games do. So why is it that some video games have ended up being played in the professional scene, while others never leave the living room of the casual gamer? A look at the development of the eSports field is necessary to determine what characteristics the eSports have and how these came to be. A strict definition of video games does not seem to be a priority from organizations active within the eSports field, since many either focus on a certain video game which has an active competitive scene, or a collection of these games. This means the organizations are unlikely to decide whether a specific game would be called a video game, but rather work with the competitive scene that a particular game has already created.
2.2 Development
2.2.1 Video games in general To understand how eSports have developed, it will be necessary to see how video games in general have developed. Therefore a short history of video games will be given, in which the focus will lay on the purpose of the video games. As is usual with the label ‘first’, it is difficult to pin point the very first video game, but Tennis for Two described by Ray (ed) in his chronicle about video games is a good contender.12 This game, simulating a game of tennis, was playable in 1958 in the Brookhaven National Laboratory in New York using an analog computer, control boxes, and an oscilloscope. Though the visuals were not much more than a dot and a line, the visitors of the laboratory were enthusiastic nonetheless. In the beginning days of the computer, this was a good model for video games: they grew out of university and industrial computer laboratories, often made in their free time by those working with these computers for amusement or demonstrations. The games were made for leisure but didn’t have any commercial value outside universities and industries. Another one of these games was Spacewar from 1962, made at the Massachusetts Institute of Technology to
12 Ray 2012, p. 1-3.
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show off their new PDP-1 minicomputer, but the game quickly became a hit and found its way to other university campuses and industries in the sixties and seventies. This is how Nolan Bushnell, student at the University of Utah, came in contact with the game, leading eventually to the next step in the development of video games. After gaining leisure experience by working in an amusement park Bushnell decides to alter video games so they can be played on a stationary computer meant just for that game, an arcade machine. He made an arcade version of Spacewar that he calls Computer Space in 1971, which is an arcade machine into which you have to throw a coin to play the game. Though his Computer Space ended up as a commercial failure, the model for arcade games was made. After Bushnell’s new company Atari came out with a new game called Pong, which became a success as a coin-operated game, the “coin-op” game industry was born. Its legacy was the many arcade halls in which consistently newer and more innovative video games became main stream as a commercial leisure activity. The third phase according to Ray (ed) was that of the home video consoles.13 Already in the late sixties experiments were made to use a normal TV screen for video games by connecting a video console to the TV. When the experiments became a success, and Atari joined the market selling a home version of its popular Pong, the video console industry became highly competitive, also leading to technical upgrades of these consoles. In 1979 four former Atari game designers founded Activision, the first company exclusively focused on making game software. In the early 80s there was a decline in the popularity of home consoles when a flood of low quality games hit the market. Console gaming meant a shift from ‘outdoor’ leisure to leisure inside your own home. The last important development for video games was the rise of personal computers. As Ray (ed) puts it, when personal computers became better “game designers took advantage of the great flexibility of computers to explore new game genres.”14 Like the home consoles, better and cheaper personal computers made video games as home leisure possible and provided access for a greater part of the population. This is how in around 30 years, video games developed from a small scale scientific curiosity, into a commercial attraction, and finally into a large scale home leisure activity. Developments since then have not changed the essence of gaming like described above, but there have been some developments. Console gaming has become popular again, and the different consoles are constantly upgraded (think of Sony’s Playstation 1 to 4, Microsoft’s Xbox to Xbox 360, and the multiple Nintendo consoles, just to name three of the currently popular console makers). With the improvement of mobile phones, video games for on your phone have also become more
13 Ray 2012, p. 3-5. 14 Ibid, p.8-13.
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popular. Though mobile gaming is mostly popular because of small short games, now and then a game comes out that proves that mobile phones have the capacity to form a new medium for gaming.15
2.2.2 The eSports We have now seen how video games and the role they have in society have developed, but it doesn’t tell us how leisure turned into professionalism, nor why the EU would have a role to play in this process. It is good to keep in mind that the element ‘competitiveness’ has been in video games from the very start. Even Tennis for Two mentioned in the above paragraph was played by two players, essentially like a tennis game. Arcade games could sometimes be played by two competing players, some games even specifically designed for this purpose.16 Even if this wasn’t the case, when a game could only be played singleplayer, the arcade machines often had scoreboards, showing the best scores after each game, giving incentive for players to try to surpass their (often unknown) competing players. Console gaming continued with this trend, providing plenty of games to compete against your friends (if you had multiple controllers, necessary to play the game). All this competitiveness was on a local scale however, centred on one machine. An exception on this can be found for arcade games however. American organization Twin Galaxies kept track of scoreboards for a multitude of games already in the early eighties (players could send in a photo of their score).17 Through their publication it was possible for players of arcade games to see how players from all over the US were doing, trying to break their records.18 Twin Galaxies also put effort in creating tournaments and getting top players together, even organizing the first significant videogame world championship aired on TV in American show That’s Incredible! in 1983. This competitive arcade scene could definitely be seen as a predecessor to modern eSports, having tournaments, top players, professional contracts for gamers and even a championship. It was however (not due of lack of enthusiasm of those involved) small scale compared to what modern eSports have evolved into and it couldn’t benefit from the many technical developments that have taken place in the last two decades (in which arcade games have lost their top position gained in the seventies and eighties).
15 An example being Dead Trigger, a zombie game for on the mobile phone of which its visuals would shame some games of not even more than a decade ago. 16 The first Street Fighter from 1987 is a good example, simulating a martial arts tournament where players could fight each other. The Street Fighter series is still popular today and has even gained a place in modern eSports. 17 All info about Twin Galaxies can be found on
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As Wagner points out, the source for modern competitive gaming can be found in the early nineties with games like Doom and Quake.19 Network capabilities were improved around this time (as proven by the fast rise of the internet in this era) and new personal computer games made eager use of this. The 1993 Doom game for example was for most players a LAN game (local area network – a network created by connecting computers directly to each other without using an outer network), but also provided larger network play through DWANGO (Dial-up Wide-Area Network Games Operation) which players had to pay an hourly fee for, after which they could play the game with other players on this network.20 Suddenly it was possible to play with players from all over the world. The two above mentioned games are shooters in which the player takes control over a virtual soldier, fighting other characters controlled by other players. These games are perfect for competitive play since they are normally played in short games, where the players battle it out in an arena, after which a clear winner is given (the last one standing, or the one with the most points). As Taylor clarifies, this system helped the professionalization of players.21 She makes clear that it’s all a matter of challenge: a player might play games alone at first, against a computer controlled opponent, but for certain players this stops being a challenge after some time. They prefer a human opponent that is harder to predict, so they might start playing against friends, but at some point the player has improved so far in the game that his usual friends don’t provide much challenge anymore. By having access to a large network (and obviously this network has increased greatly in size since the early nineties), the player can find opponents from the same level of skill, and keep improving. This is how a select few find themselves a way to the top and realize that they have become better than most casual players at a specific game. However this increased possibility of competition and challenge alone is not enough to change a player into a professional gamer. Even players that are among the best performers in a specific game might (and often will) never go past gaming being their hobby (however serious they take it). The improved multiplayer possibilities did create an enthusiastic game community, which lead to for example Quakecon in 1996: an annual event where game enthusiasts could come and bring their computer and compete in gaming competitions in a LAN. An event of significant value for eSports was Red Annihilation, a gaming tournament held during the E3 (Electronic Entertainment Expo – one of the world’s most important gaming conferences). Red Annihilation brought together a venue, sponsors and prizes (the grand prize of the tournament was the 1987 Ferrari of one of the
19 Wagner 2007, p 183-185. 20 Taylor 2012, p. 5-7. 21 Ibid, p. 86-89.
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main developers of Quake), showing that competitive gaming was capable of creating a professional scene.22 In the years following many new game tournaments saw the light of day, sometimes held during video game conventions (in which game producers present their newest games), followed by gaming teams (like SK Gaming), sponsors (often electronics brands like Toshiba), and even associations like the Korean e-Sports Association. The year 2000 saw the next step in professionalization of gaming with the launch of the WCG (World Cyber Games), which was the first large scale event focused on eSports, attracting approximately 174 competitors from 17 different countries (increasing over the years) to Seoul, South Korea, to compete with each other in several different video games.23 The WCG even uses national preliminary rounds to determine which players are allowed to compete in the WCG final event itself. The event was covered on the WCG TV website, which gave easy access for those wanting to follow the event. The WCG seemed to have been the start sign for modern eSports, because the period from 2000 to 2010 saw many new eSports events and leagues like MLG (Major League Gaming), World e-Sports Games, Evolution Championship Series, etc., building on the modern eSports scene.
2.3 Characteristics of modern eSports It should be clearer now how video games have developed since its creation and how eSports fits in this development. This leaves taking a closer look at eSports itself, which main characteristics it has. These aspects will be play an important role in the assessment of the interests the EU could have in the field of eSports.
2.3.1 International aim The first main aspect of eSports is the international aim of the field. International aim in this context does not only mean competition between citizens of different states, but also cooperation of these different nationalities. Unlike regular sports, eSports does not have a strong background in the national level. For example sports like football have a very strong national tradition, with many regional and local teams competing in different leagues. The field of eSports on the other hand doesn’t know this kind of local level. Video games are not limited to one country, having gamers from many different countries playing with each other, which made it less likely for a local scene to arise. This doesn’t mean that there is no local activity at all however. Game enthusiasts can still start local tournaments themselves, where gamers have a chance to get together and compete.24 It can often
22 Ibid, p. 8-9. 23 Hutchins 2008, p. 855-858. 24 An example is EXP Game Tournament, a tournament for Benelux gamers held in January 2012,
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still be hard to speak of a national level, since these tournaments often don’t know nationality restrictions and often end up being international gatherings of professional and casual gamers alike.25 Another example of local game activity can be found in national eSports associations. The “Nederlandse Electronic Sport Bond” (self-translated: Dutch Electronic Sports Union), for example, makes its case for the Dutch eSports scene, by organizing gaming tournaments, protecting interests of professional gamers, being the first point of contact for interested parties, etc.26 But in general the eSports field doesn’t concern itself with national borders. A good illustration of this is the eSports scene of the game League of Legends. Certain data suggests that League of Legends was the most played PC game of 2012, and it has a very strong eSports scene.27 To maximize game service, game producer Riot Games has split the game into a separate North-American, European (further split into West- and North/East-Europe because of increasing number of players), South-East-Asian and recently also a Turkish and Brazilian server. This has had its impact on especially the composition of the European League of Legends teams (consisting of five players): team SK Gaming has three nationalities28, Evil Geniuses has four29 and Fnatic has four as well.30 Without the necessity to be physically together to train, these teams are not bothered by national borders (North-American teams often consist from American and Canadian players as well). It cannot be said this principle is absolute however, since cultural and linguistic barriers and sometimes the existence of a large local community can be reason for a more national composition of teams (many professional Asian teams for example consist out of just one nationality), but the principle is clearly present in the European field.
2.3.2 Match coverage A second main aspect of eSports is the way it is covered. Unlike a lot of regular sports, eSports in general doesn’t receive coverage of their events on TV or newspapers. This has led to a tradition of self-coverage to make it possible for those interested who are not attending the event to still follow the activities. Most important eSports events like Dreamhack and the World Cyber Games broadcast their matches online, so called streaming, so that enthusiasts and eSports fans can follow their favorite game and team without having to travel to the events. This online coverage can even include
25 Red Fight District, an eSports event coordinated by several Dutch fighting game communities held in Amsterdam, for example welcomed 75 participants from outside the Netherlands (of the 150 participants in total),
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professional commentators, replays, gameplay analysis, etc. This online position of eSports knows its exceptions however. Hutchins notes for example that the WCG was occasionally reported in multiple international media outlets31, there is further also TV coverage of eSports in South Korea.32 It is nonetheless not hard to see that it’s not only the games played in eSports that ‘live’ online, but also the eSports scene itself, forming the easiest way to provide coverage to all interested gamers.
2.3.3 Professional gamers Another relevant characteristic of eSports is the group of gamers involved. When going through the composition of professional gaming teams it won’t take long to notice two elements. First of all, the age of professional gamers jumps out. A vast majority of these gamers is between 18 and 25 years old, though exceptions exist.33 Though reasons and results of this fact will not be discussed in this chapter, it is nonetheless important to keep this in mind, since it can affect the possible role that the EU should play in the field. Secondly, female professional gamers seem to be extremely rare. The season 2 finals for the game League of Legends for example, in which 12 teams (60 players) that qualified competed against each other, showed not a single female gamer in the teams. That female gamers do not only exist, but also have the skills necessary to compete is already shown by Katherine “Mystik” Gunn, a female gamer who has won two editions of the TV show WCG Ultimate Gamer (winning not only prize money but also becoming a spokesperson for the WCG), and belongs to the top players of the US in multiple games.34Again the reasons for this aspect will not be discussed here, but it is an important characteristic of the current eSports field to consider.
2.3.4 Inconsistency The last main aspect of eSports discussed here is the inconsistency of the field. Within consistency is meant the large variation of tournaments, events, organizations, associations, etc. that are all involved in eSports. For this aspect it is important to consider, like was mentioned in Chapter 1, that the term eSports covers a broad array of different video games. These separate games often have had their own process of becoming an electronic sport, having their own organizations and events. Big tournaments often have to choose which games they want to host, leading to the fact that different tournaments are important for different games. Even the World Cyber Games, which often presents itself as the Olympic Games of the video games industry, only hosts five of the many video
31 Hutchins 2008, p. 856. 32 MBC Game and Ongamenet are two examples of South Korean broadcasting companies focusing on professional competitive gaming. 33 Popular South Korean gamer Lim “BoxeR” Yo Hwan for example still won official Starcraft II matches at the age of 30. 34 Castillo 2010.
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games that are played on professional level.35 As Taylor shows, this also often means different rules applying in different tournaments, which can lead to a lot of confusion and conflict during the tournaments.36 That the situation can differ so much depending on what game, what tournament, what rules apply, etc. brings a lot of inconsistency to the field, which might make it difficult to come to general conclusions suited for the whole field.
35 Website of the WCG,
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Chapter 3: The regular sports The eSports field itself often compares itself to the regular sports like football and basketball. The International e-Sports Federation for example has as goal to “promote e-Sport as a true sport beyond language, race and cultural barriers”.37 But how fitting is this comparison? This question is relevant for our legal perspective on eSports for two reasons. Firstly, if eSports would be able to fall within the definition of sports, it would be a lot clearer what the EU’s possibilities and goals would be. Secondly, even if eSports is something separate from regular sports, a comparison could provide enough similarities to be able to look at the EU’s role in regular sports as inspiration for the eSports field.
3.1 Definition of ‘sports’ The term ‘sports’ is one of those broad terms that could give you dozen different definitions depending on who you might ask. Since for this research we focus on the European aspect, we will focus on the European definition of sports as well. Though the European Union Treaties do mention sport once in art. 165 TFEU (which will be discussed in more detail in paragraph 3.3), they do not give a clear definition of the term. The Commission has adopted a White Paper on Sport however in 2007 to start a more coherent approach to sport at EU level.38 This White Paper discusses the EU’s role in sport, from doping abuse to educational value, and was expanded in 2011 with the Communication ‘Developing the European Dimension in Sport’.39 The White Paper does not bring its own definition of sport however, in footnote two it states that for reasons of clarity and simplicity it will use the definition established by the Council of Europe. This definition is: “all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels”, and can be traced back to the European Sports Charter of 1992.40 The element of this definition that raises the most questions in relation to eSports is that of ‘physical activity’. One might see the playing of video games as a technological activity rather than a physical activity, but Taylor argues that this is not as self-evident as it may seem. She proposes that competitive gaming is more physical than many would think, and that the technological component is not as distinguishing between sports and eSports as generally thought.41
37 Website of IeSF,
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3.1.1 Body training Taylor argues that physical activity is more important for professional gaming than one might expect.42 Training until mastery of the body is gained is a crucial element of professional gaming. Knowledge of a particular game alone is not sufficient, embodiment of this knowledge and the skills to use this knowledge is necessary to become a professional gamer. She gives some examples, like the speed of which certain top players can click the mouse or keyboard buttons (upward to 200 hundred actions per minute), the surprising nuance with which racing competitors handle their external equipment (racing wheel, gas pedal) combined with the visual display on screen, the speed with which gamers have to learn to focus and react on actions on the screen, etc. Certain actions even have to become naturalized for the gamer, not much unlike regular sports where for example basketball players train to shoot the ball always in the same way. Witowski in her research also found physical factors that are normally associated with sporting bodies, which she could also find in the actions of professional Counter-Strike players, showing sophisticated physical activity from the muscles and tendons controlled by hands and fingers to the control of breathing for the maintaining of focus.43 Taylor concludes “in the same way traditional sports shape embodied action, elite computer game play also inscribes itself on the body of players, refining over time the most nuanced yet complex circuits of actions” and also points out that professional gaming can also have its toll on the gaming body (e.g. headaches, eye strain and even exhaustion after long times spent in competition).44
3.1.2 Technology As Taylor explains, it is easy to think of regular sports as being ‘pure’ as regards to technology involvement, but this is not justified. Technology surrounds the regular sports as well, be it on the field (where innovations in gear or equipment can have its effect on the game), or in practice and training through training equipment, physical therapy and sports medicine (and we shouldn’t forget the existence of performance-enhancing drugs). As Taylor puts it: “Whether it is a debate about the legitimacy of a new Speedo swimsuit, the use of high-altitude tents for training, or the allowance of a golf cart in a major tournament, traditional sports constantly negotiate the integration and boundary-monitoring of technologies and ongoing constructions of ‘pure’ human agency. Though this boundary work may be more apparent in e-sports, it is not unique to it.”45 Another comparison that she makes is the way that players use this technology. It is not just the software, the video game itself that matters, the players interact with everything around them.
42 Taylor 2012, p. 37-39. 43 Witowski 2012 44 Taylor 2012, p. 39. 45 Ibid, p. 39-47.
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The monitors (some are better at showing fast paced games), mice (some players use tissues to prevent the mouse from getting sweaty during warm-ups), headsets, the table, everything has its impact on the gaming experience. Even the computers themselves can make all the difference, since slower machines can cause ‘lag’, a delay between the player input (clicking a certain key for example) and the output of the computer (the action linked to that key actually taking place). New surroundings with different of these elements can mean that the player will have to get used to these factors, very much like a basketball player knows how the ball that he practices with bounces on their court, how it reacts to the backboard, etc. and will have an advantage versus teams that are new to these specific elements. We have now seen that there is a physical element in playing video games competitively and that the way gamers in eSports interact with external technological factors is in essence not that different from regular athletes. Does this mean however that eSports falls under the definition “sport”? A mere case of ‘checking boxes’ to find a sport? Reality is that the definition used itself already leaves a lot of discretion to those using it. How much ‘physical activity’ is necessary to speak of a sport? On what level does it need to improve physical fitness and mental well-being? It is up to the Commission to decide on these questions, and the fact that it hasn’t published a predetermined list of activities that will be recognized as sports, or a list of characteristics that an activity will need for recognition, speaks volumes. Nonetheless these observations show that eSports are not that different from regular sports as one might think on first glance. Because of this, and the fact that the organizing of eSports are comparable to regular sports even more (the philosophy of the World Cyber Games for example seems heavily influenced by the philosophy of the Olympic Games46), it should be possible to use the role of the EU in regular sports as an inspiration to the interests and possibilities the EU can have in the eSports field.
3.2 Branch or separate tree The last paragraph looked at the possibility of eSports falling under the definition of sports, as a branch of sport (regular sports being another branch). An alternative theory however, suggests that this classification is unjust, that electronic sports should be its own classification, as an alternative for ‘sports’. Hutchins notes that regular sports have becoming to rely more and more on media (becoming media spectacles in recent decades) while competitive gaming has attempted to get closer and closer to regular sports (from terminology like ‘electronic sports’, ‘cyber athletes’, etc. to the use of the three medal system and sport philosophies).47 He argues however that eSports are inherently different from regular sports, and bringing one together with the other will lead to judging
46 Hutchins 2008, p. 858-860. 47 Ibid, p. 851-858.
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eSports on the wrong merits. Where the discussion is about ‘sport and media’, competitive gaming represents ‘sport as media’. Hutchins: “e-Sport is born in and of media, which alters the parameters of competition in terms of how it is conducted – on-screen and in digital space – and the dynamics of ‘game-contest’, which … is determined by a technical interface and the programmed possibilities contained within a computer game.”48 There may be plenty of comparisons possible between regular sports and eSports, but both fields have their own distinct development paths and eSports are inherently different because the impossibility of unlinking media and sport. Hutchins isn’t trying to say that eSports is completely not comparable with regular sports, on the contrary, in his evaluation of the World Cyber Games he finds that the organization is not much different from many other international organizations and there are many elements to be found in both fields. Rather he’s trying to point out that the difficulty with which society tries to put eSports in the already known concepts is unnecessary: eSports in itself is a new concept. This lesson is very valuable for this research, since it shows that the regular sports field can be a good source, it shouldn’t be forgotten that eSports in itself is different, so thoughtless ‘copying’ from field to field would be inappropriate.
3.3 EU and sports: Legal framework Now we have established that the role of the EU in the regular sports field can form a source of inspiration for the eSports field as long as we keep the specific nature of competitive gaming in mind, it is time to look at what this role is. The main basis for the legal competence of the EU in the sports field is art. 165 of the Treaty on the Functioning of the European Union (further: TFEU) which states: “The Union shall contribute to the promotion of European sporting issues, while taking into account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.” It is clear that this is not a very broad competence: it only shows a supporting role. This competence is new since the Treaty of Lisbon came into force, and before this Treaty there was no provision on sport. This does not mean however that the EU had no influence in the sports field prior to the implementation of this provision. The White Paper on Sport mentioned above already shows that the Commission was actively busy with its role in the field already in 2007. As Meier explains, the EU founds it way into the sports field long before this.49 He finds that though the EU had no competence in the field, and Member States firmly opposed this, the EU still found its way through spill-over effects from other policy areas. A clear example of this is the Bosman case, where the European Court of Justice used the freedom of movement of the internal market to strike down a transfer-fee requirement and a limit
48 Hutchins 2008, p. 857. 49 Meier 2009, p. 7-24.
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on the number of players from other Member States to become member of the team.50 Other examples of areas that touched the sports field at some point are the anti-trust field and broadcasting. As Meier argues, this ‘competence-creeping’ was met with resistance of the Member States, and the so-called ‘specificity’ (being the special nature of sports) of sports was often an argument to sustain the self-regulation of the area, which ultimately led to the Commission choosing for EU sport policy being aimed at cooperation. So how far does the influence of the EU go in the sports field? Wathelet helps giving an answer to this question in his review of the state of Community law in the sports field in 2009.51 He first finds that through numerous judgments and decisions, the ECJ and the European Commission have developed a jurisprudence that in essence states the EU is limited to having marginal control, meaning it can only check if free competition and the fundamental freedoms are respected by the actors in the sport field. When next reviewing the Arnaut Report (an independent European sport review report) he concludes that this marginal control does not mean certain parts (rules) of the sport fields are beyond the scope of Community law.52 He emphasizes that, unlike the Arnaut Report claims, the different area rules of sports could be subject of EU review: rules on organization of competitions, player transfers, activity of players’ agents, UEFA53 rules on ‘home –grown players’ (needing a quota of players who were trained at the club), rules on media rights, etc. Wathelet dismisses the notion of the ‘specificity’ of sport as argument for exemption of the Community law scope, finding no special reason why the sport area should be exempted from Community law, while other areas that also have its own specificity (and almost any field has its special characteristics) are not. The Meca-Medina and Macjen case is a clear example of this, in which the Court states ‘the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule of the body which has laid it down’ and that ‘if the sporting activity in question falls within the scope of the Treaty, the conditions for engaging in it are then subject to all obligations which result from the various provisions of the Treaty’.54 When looking at the future of EU law, Wathelet finds that the White Paper on Sport just stresses this development, referring to case-law and the, at that time, proposed article III-282 of the Treaty establishing a Constitution for Europe (which ended up with the same wording as art. 165 TFEU) does not allow for an exception of the scope of EU law either.55
50 Case C-415/93 51 Wathelet 2009, p. 57-71. 52 The Arnaut Report is entitled ‘Independent European Sport Review’ but was financed by the Union of European Football Associations (UEFA). 53 Union of European Football Associations 54 Case C-519/04, para. 27 -28. 55 Wathelet 2009, p. 72-78.
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So what has changed since the introduction of art. 165 TFEU? The provision allows the Council to adopt recommendations, but up until now the Council has not used this power. The provision also allows the European Parliament and Council to adopt incentive measures through the ordinary legislative procedure (harmonization of laws and regulations of the Member States is excluded). The incentive measures are also mentioned in the Communication ‘Developing the European Dimension in Sport’, that expanded on the White Paper on Sport, stating the Commission will provide support for projects and networks in the field of sport. What follows is a short list of examples of what the Commission is planning to do in the field of sports (taken from the Communication): -Fight against doping: examine the most appropriate way to reinforce measures against trade in doping substances; -Education: support innovative initiatives under the Lifelong Learning Programme relating to physical activity at school; -Prevention of violence and intolerance: together with Member States develop and implement security arrangements and safety requirements for international sport events. Some more examples can be found in the proposed budget for 2013, which assigns one million euro to the European MOVE Week (Europe-wide event promoting sport and physical activity), 500.000 euro for the upcoming European University Championships, and another four million euro for completion costs of preparatory action for a programme in the field of sport (focusing on the goals in art. 165 TFEU).56 The legal framework of the EU in the field of sports can therefore be divided in two. On the one hand it influences the field through its other policy areas, like competition and internal market, forming a check to see if the field complies with EU obligations, for which the so called specificity of sport makes no difference. On the other hand the EU also has a clear competence in art. 165 TFEU, though any active role is limited to supporting and cooperating with actors in the field. How does this legal framework relate to gaming? As was discussed in the above paragraphs, this all depends on the used definition of sports. Though it could be a bit inconsistent with the focus in for example the White Paper on the physical aspect of sports, paragraph 3.1 has shown that there is at least the possibility to put eSports under the sports definition. If the Commission would choose for this broad definition, the discussed legal framework would also apply to the eSports field. This would mean that the Commission would have a clear legal basis for an active supporting and coordinating role in the eSports field. However, even if a narrow definition is used (making eSports a
56 COM(2012) 716 final, Brussels, 23-11-2012, DRAFT General Budget of the European Union for the financial year 2013, Section III Commission, p. 474-478.
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whole separate field as Hutchins argues), the legal framework for sport shows that the EU does not necessarily have to wait until a new legal competence like art. 165 TFEU is created. Any specificity that eSports might have (think of all the characteristics in Chapter 2) does not change the fact that EU law applies equally to the field. There can be situations in the field, comparable to regular sports (like player transfer rules, possible future doping use, etc.) or specific for the eSports (like reliance on broadband possibilities, mobility of professional players, etc.), which get influenced by existing EU. Any EU obligations will therefor leave their impact on the eSports field as well.
3.4 Professionalism and amateurism A division in the regular sports is possible between professional sport and amateur sport. Though in practice this distinction might not always be as clear, in essence when a player get financially remunerated for his playtime or training he is a professional, if he does not he is an amateur. A good example of these two scenes co-existing is the field of football in Europe, probably one of the biggest and most important sports field within the EU. Any person could play football on an amateur level if he gathered some friends and a ball, or joined football activities on school. Even on an organized level it is possible to play amateur football by joining one of the many amateur clubs who compete against each other, on many different age levels.57 Next to this is the professional level existing out of professional clubs that give their players a salary and compete in professional leagues, like the Premier League in the UK or the Eredivisie in the Netherlands. There are links between the two scenes however, for example football clubs having both professional and amateur teams58, and professional clubs using scouts to find amateur players with potential for the professional leagues.59 While the Commission hasn’t created a separate policy for amateur and professional sport in its White Paper on Sport, some differences can nonetheless be found. Certain goals of the Commission are more applicable to professional football or amateur football, even though the wording might not be aimed at one of the two. For example doping, transfers and player agents are all concerns which are hardly applicable to (or less relevant for) the amateur level, while enhancing active citizenship and the role of sport in education can be seen as primarily aimed at the amateur level. For the former, as we have seen in last paragraph, the EU often gets involved in professional football through other policy areas (for example transfers through the free movement of persons), while for the latter the EU mostly uses supportive measures like the European MOVE Week. There are also overarching goals like the fight against violence, for example thought international police
57 The Dutch football association KNVB for example organizes the competitions between almost 3.400 amateur clubs,
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cooperation for football matches with an international dimension.60 So the EU does not really distinguish its policy between amateur and professional sport, it rather pursues its sports goals in general and its actions depend on in what field the action is necessary. Might this also be possible for a distinction between amateur and professional gaming? Like regular sports professional gaming is also different from amateur gaming. As described in Chapter 2, video games are for the biggest part played for leisure, so without financial remuneration. When played for leisure, gaming could be called amateur gaming, but there’s already difference with regular sports. To stay with the football example, let us take a look at the FIFA series of EA Sports, a football simulator game officially licensed by the FIFA61 where the player takes control of a whole team (not only playing matches but also transfers, management, etc.). The FIFA game series is also used in eSports, but players whether it is for amateur or professional purposes will have to buy the game in the store. Further, if they want to play competitively online, they will need a stable internet connection and for better performance, a reasonable quality computer would also be advised. Though not all video games that are played professionally follow the same business model (some require a monthly fee, while others are free to download and work with micro-transactions), it is already clear that the amateur level of gaming is based on commercial business, while regular sports are not. Comparable to regular sports there are links between amateur and professional gaming. Just like with football for example, it is highly unlikely a player will skip the amateur level to become professional. To compete for prizes the player will have to practice the game, get better so they will get noticed by the professional level and perhaps join an already existing team. But eSports can also be more connected to the amateur level. A good example for this is the game League of Legends, a team based game, where professional players often use the in game matchmaking system to practice with random players (of around the same skill level) when their team is not available. Even if a player doesn’t have the same skill level as a professional player, he might still get to play with him, because many League of Legends professional players also stream. This means the gamer broadcasts his playtime on a site (e.g. the company Twitch has a streaming site with over 23 million visitors a month and more than 250 games to choose from62), which creates a form of revenue since the more viewers the gamer gets, the more he will get paid for running adds occasionally. Sometimes professional gamers have special matches where they play with fans and otherwise respond directly
60 Council Resolution 210/C 165/01, of 3 June 2010, concerning an updated handbook with recommendations for international police cooperation and measures to prevent and control violence and disturbances in connection with football matches with an international dimension, in which at least one Member State is involved. 61 Fédération Internationale de Football Association 62 Twitch website,
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to a fan chat. These are just some examples that professional gaming can sometimes be very close to amateur gaming. So what does this mean for our research into the role of the EU? First of all it shows that the EU in the regular sports field focuses on certain goals, and then sees how to reach these goals. This makes it helpful to identify possible goals that the EU might have in the eSports field. But secondly, can the practice of the EU not to make a clear distinguishing line between professional regular sports and amateur sports be applied to eSports and casual (leisure) gaming? It is clear that though there are several similarities between amateurism and professionalism in regular sports and in gaming, there are also plenty of differences. To just use the same practice might therefore not be advantageous. And sports and gaming definitely do not have the same position in society. Think for example of a child playing football the whole afternoon with some friends outside, or instead that same child playing FIFA on the computer (whether with friends, alone, or online against others) the whole afternoon. Most likely one will not have issues with the former, while there might be some concerns with the latter. This does not mean there can be no negative consequences of regular sports (for example injuries, overtraining and burnouts among children63), nor that gaming can’t have positive consequences (for example improved visual memory, visual attention, etc.64) but it does show that gaming and sports are inherently different. We will go deeper into this issue in Chapter 5. But for now it is sufficient to say: perhaps the EU doesn’t want to support casual gaming. Would it be possible to separate eSports from casual gaming that the EU would be able to play a role in eSports without going to deep into casual gaming? As we have seen there are multiple links between amateur casual gaming and professional gaming, so it will be important to consider this distinction when discussing the possible goals of the EU in Chapter 5.
63 Brenner 2007, p. 1242-1245. 64 Ferguson 2007, p. 309-316.
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Chapter 4: South Korea and eSports Every researcher who dives into the world of eSports will sooner or later run into the role of South Korea. This is because South Korea has played a very special role in the development of eSports, it is not without good reason that the first ever World Cyber Games was held in the capital Seoul or that Korea Magazine entitles South Korea as the ‘Mecca of e-Sports’.65 As Huhh points out, South Korea has a high rate of broadband connection (essential for a field that is based on connection network) and one of the biggest online game markets in the world (which, if not directly supports eSports, still indirectly supports the gaming culture eSports has grown from).66 This chapter will first examine how South Korea (further: Korea) has gained this important role, which factors were important for this developed. Then it will continue by taking a closer look at how the Korean government has played a role in this process, since this could serve as an example for EU involvement.
4.1 Online nation
4.1.1 Infrastructure In 2009 about 95% of Korean households were connected to broadband services, the highest connection rate in the world.67 As Jin explains the process to develop these broadband services started in 1995 when the Korean government adopted the Framework Act on Information.68 This Act was the start of a large government investment in the information infrastructure of Korea. Jin points out that the financial crisis of 1997 meant the next step in the increasing importance of information technologies. Many bankruptcies and high unemployment lead the Korean government to change from the traditional heavy and chemical industries to an economy based on IT (information technologies). Jin shows this commitment by the fact that Korea invested 11 billion USD in broadband services between 1998 and 2002, while the US merely invested 2 billion USD only in the form of tax breaks, rather than direct investment. It was in this environment that heavy competition between broadband companies lead to the high connection rate as well as relatively low monthly prices (compared to for example the US and Canada). The Korean government has now committed to the new generation of broadband services, investing billions in the upgrading of the connections services. It is clear that the serious involvement of the Korean government lead to Korea becoming a real ‘online nation’, and government involvement (also directly into the gaming industry and eSports field) will be the focus of the second part of this chapter, but Jin emphasizes that the government
65 Korea.net 2012. 66 Huhh 2009, p. 102-103. 67 Stategy Analytics 2009. 68 Jin 2010, p. 17-21.
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alone is not responsible for the development of a gaming culture (and subsequently: an eSports field).
4.1.2 PC Bangs Though the Korean government played an important role in creating the infrastructure necessary for an ‘online nation’, cultural and social factors have played a just as important role for the bringing in practice of this concept, especially in the gaming sector. Of large significance for this development is the PC bang (Korean for ‘PC room’), a concept in a lot of ways similar to internet cafés that can be found in European countries, but with a lot of differences as well. Huhh sketches the history of these companies in his article that emphasizes the importance PC bangs have played in the development of Koreas gaming culture.69 Huhh concedes that the first PC bangs, that followed the introduction of internet connections into Korea in the mid-90s, were very comparable to the Western internet cafés. They were mostly a place to get an internet connection (or better connection) and some work- related possibilities like printing documents, and customers were limited to a couple of enthusiasts. Huhh identifies two critical events that lead to a change in the PC bang concept (or internet cafés, as he still labels them before this period) in 1998. First of all, as mentioned in the last paragraph, the Korean government started its active promotion of an IT economy in the wake of the 1997 financial crisis that hit Korea. But the second event is from our game view point more interesting: the release of the game StarCraft by publisher Blizzard Entertainment. This strategic game, which in competitive form relies heavily on a good connection, became an unbelievable success in Korea: it is estimated that more than half of the worldwide sales of the game (3.5 million of 6 million copies) were sold in Korea between 1998 and 2002. While, as we noted in Chapter 2, Western eSports found its basis in shooting games like Quake and Doom, the immensely popular StarCraft soon developed its own eSports scene in Korea. Since the financial crisis of the year before left many young people unemployed, a part of the population found itself with a large amount of free time, and PC bangs quickly became the place to spend this time, with StarCraft as the main attraction. An observant reader might wonder however why these PC bangs were necessary, since we just concluded in last paragraph that Korea has the highest broadband household connection rates. Why did gamers not just play their games at home? Huhh explains this phenomenon with the social role the PC bang played for Korean gamers. Playing games alone was not enough for the Korean gamers, they preferred to come to the PC bang (often accompanied by higher costs) to have offline social contact besides (or during) gaming. PC bangs aren’t quite calm places where everyone is focused on the screen in front of him; they are rather busy and noisy rooms where all gamers are
69 Huhh 2009, p. 103-114.
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constantly in contact with each other. It was in these local PC bangs that a competitive StarCraft scene began to exist, by holding competitions in separate PC bangs without any organization between these. Gaming has definitely become mainstream in Korea, friends often meet up in PC bangs to play some games, and there are even PC bangs with ‘couple seats’ for gaming couples who like to stay close to each other. A picture might emerge from small, dark backrooms full of computers, but as Huhh emphasizes, PC bangs are immensely popular and with more than 20.000 PC bangs just in the capital Seoul there are plenty of ‘classy’ PC bangs as well with luxurious sofas to sit in, smoke-free zones and greenery surrounding the separate PC booths. Jin acknowledges the important role PC bangs have played for the gaming culture in Korea and explains how there also was a serious interaction between game producers, broadband service providers and PC bangs that helped the development (for example adjusting game subscription so it was possible to ask an hourly fee at a PC bang, which is what many Koreans prefer, or deals between game producers and broadband service providers to promote each other).70 He also emphasizes the importance of the cultural aspect of Korean society that played a role however. Koreans have embraced and welcomed technological progress with great fervour. As Jin explains, the Korean society now wants quick communication, quick games and quick contact. This has become apparent on so many levels: from the willingness of many Koreans to try out new digital devices, to the embracing of online English education and the eagerness that Koreans (after changing to the Western 5 day workweek) looked towards the internet for leisure. Another important cultural aspect is that Korea is, what Jin calls, the mass play culture. People do not like to be left out, and prefer playing games together, an aspect that greatly boosted the online gaming industry in the country and created a gaming culture perfect for eSports.
4.1.3. Korean eSports The above mentioned spread of network facilities and the rise of a gaming culture quickly led to the development of a Korean eSports scene. Especially the increasing popularity of online gaming, the release of the game StarCraft, and live broadcasting on online games on both television and the internet resulted in eSports becoming a major activity for the Korean youth.71 Taylor explains that this development was accompanied by “utopic-inflected ‘techno-Orientalism’ tales” of these professional gamers who live like rock stars, having a fan base comparable to regular sports athletes, holding contracts with famous companies like Samsung, wearing the latest sports gear from Nike, etc.72 Schiesel, with his closer look at the popular position of Korean eSports, gives us some more
70 Jin 2010, p. 22-32. 71 Ibid, p. 59-60. 72 Taylor 2012, p. 17-27.
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interesting numbers about this field: it is estimated that 10 million Koreans (on a population of 50 million) regularly follow eSports, and some eSports players fan clubs have more than 700.000 members, in total the number of Koreans who go spectate professional basketball, baseball, and soccer put together are the same number of Koreans who follow professional gaming.73 After this data, it is not so surprising anymore the first World Cyber Games event was organized in Korea. Jin acknowledges that the developing eSports field in Korea has given amazing opportunities for pro gamers, but also brings nuance to this phenomenon. Perhaps a few skilled professional gamers will rise to these ranks, but the majority of pro gamers will not get to this point. They will face salaries lower than the national average, intense training schedules, many will have dropped out of high school to pursue their dreams etc. Jin also emphasizes that there hasn’t been much systematic research on pro gamers and no academic papers analysing pro gamers, and since the eSports field is relatively young it is hard to say what the future holds for all these pro gamers.74 So while Korean eSports has become a lot more accepted and embraced by the community in comparison to Europe, it is good to note that this doesn’t mean that there are no negative aspects to the Korean gaming culture.
4.2 Government involvement It was already clear that the Korean government played an active role in the creating of broadband infrastructure. This alone does not mean however that the government actively supported the eSports field; just like building a road would not necessarily mean that the government supported each single user. But the Korean government went further than providing broadband infrastructure. Taylor explains how the government recognized the role of video games in the lives of their citizens and started to actively support and develop the Korean game industry, from export promotion and creation support to cultivating talented workers and research and development.75 A good example is the founding of the Korea Game Development and Promotion Institute (KOGIA) by the Ministry of Culture and Tourism in 1999. This institute publishes documents on the game industry regularly, and for example their 2003 report lists the several game industry-related policies that the Ministry of Culture and Tourism enacted.76 Besides providing information and creating multiple supportive bodies, these policies also include more substantive action. From a legal point of view the Ministry for example wants to enact the Cultural Industry Promotion Law, which classifies the game industry as a cultural industry. Also an amendment of the Sounds Records, Video, and Game Products Act was envisioned, to divert from a
73 Schiesel 2006 74 Jin 2010, p. 81-83. 75 Taylor 201,. p. 19-22. 76 KOGIA 2003
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more regulation based approach to active support and post management, and simplifying the classifying the grades of games (all ages – above 18 – unavailable). Other policies involve the promotion of private investment in multi-game places (like PC Bangs) and the building of physical game complexes in different areas of Korea. It is clear that the Korean government actively supports the game industry, even adjusting its legal framework to reach this goal. Jin lists several examples that show the Korean government also directly supports the eSports field that developed from the gaming industry.77 Not only does this include supporting eSports tournaments, but also providing a participation program for eSports cultural expansion (an eSports festival for disabled students for example), establishing a tax deduction for the monetary rewards earned by professional gamers (3.3% compared to the normal 22% for other awards), etc. The Korean government further acknowledged official online game competitions (game leagues) and works together the business sector in non-governmental organizations like the World Cyber Games and the Korea e-Sport Association (Kespa). “Online pro-gamer” has even recently become an official job category in Korea, their total number even surpassing the number of professional baseball players in Korea.78 Since Korea knows compulsory military service, and this obligation is in the prime years of professional gamers, the Korean Air Force even created its own eSports team named ACE, followed by the Korean Navy creating the StarCraft team Aegis. Just like it is the case with the gaming industry, the Korean government actively supports the eSports field, even through legislation.
4.3 Conclusion South Korea certainly has a special position in the eSports world. Not only with the direct development of the field (through for example the popularity of StarCraft and starting initiatives likes the World Cyber Games), but also through making eSports mainstream in a culture that embraces the game industry. This does not mean I would argue that the situation in Korea is a certain next step in the development of eSports in Europe. This chapter has made clear that the situation as it occurred in Korea did so because of a set of circumstances. For example the economic crisis (which lead to both a change of the core of industry and a large amount of unemployment and therefore leisure time), the active support of the government for infrastructure, gaming industry and eSports, but also other social and cultural reasons like the tendency of Koreans to not want to play alone, or their preference for PC in contrast to consoles (while traditionally consoles do better in Europe and the US). And this is besides obvious other differences, like the fact Korea is a relatively small country, while the EU consists out of many countries, all with their cultures (and their own views on gaming). Yet this does not mean that a closer inspection at Korea cannot be helpful. Korea’s role in the
77 Jin 2010, p. 59-80. 78 Ibid, p. 86-92.
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gaming industry is a nice example of interaction between government action and society: without the avid embracing of new technology by the Koreans, the government would not have been able to turn around its society so quickly no matter the investments; while at the same time without the large investments by the government, the society could not have developed their gaming culture the way it did. It is interesting to note that the EU is also actively improving the broadband infrastructure in Europe. Korean example also shows how the legal framework influences the development of eSports, and can form a source of inspiration to decide what role the EU should play. And even if this role would look nothing like what is being applied in Korea, their gaming culture can still provide a lot of information on the gaming industry in general and eSports in particular.
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Chapter 5: Goals and interests
5.1 Boundaries In prior chapters it was discussed what eSports is, how it relates to regular sports (and the possible legal framework), and how the field has developed in South Korea. This chapter will focus on the question why the EU would want to be active in the eSports field. It will discuss the goals and interests that the EU would want to see protected or fulfilled in this field. Obviously this task is a daunting one, since the EU can have a wide variety of interests, so setting some boundaries will be necessary. This research will firstly focus on interests that have a legal meaning. For example purely political or economic goals and interests, which have no basis in the EU legal framework, will not be considered here. To limit the scope further a second boundary will be the consideration of exclusively the individual’s role in the eSports field. Interests of the video game industry itself for example, will not be the topic of this research. This choice was made for two main reasons: first of all most of the gaming industry is led by non-EU companies (of the 20 leading global video game publishers in 2010, only Ubisoft is a European company).79 The EU interest in the game industry might therefore be limited and this is one of the reasons that these interests will not be discussed here. This does not mean however that these interests do not exist: French publisher Ubisoft for example just launched its game ShootMania which developed to be a real eSports game80, while European game developers like the Swedish DICE are or will be active in the eSports fields while creating their games.81 There might therefore still be legitimate reasons for the EU to become active in the eSports field to support this gaming industry. The second main reason why these interests will not be considered is because the gaming industry is in a good position to protect these interests itself. The field of eSports is already shaped by self-regulation at this moment, and since game developers are playing a more active role to professionalize the scene they are capable of pursuing their goals. The individual in the scene, the European citizen, does not have such a strong position. This is not the say he might not be able to influence the field at all, but at the moment the individual can mostly just accept the eSports field as it is given.EU involvement can therefore mean the most for the European citizen which is why this chapter will focus on their interests. It is then important to distinguish between the two different roles EU citizens might have. First there is the role of (potential) professional gamer in the eSports field. Secondly the role of the
79 EGDF 2011, p. 4. 80 Harman 2012. 81 Makuch 2013.
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‘consumer’, the person who watches the eSports, has the role of the spectator and possible supporter of professional gaming. These are two completely different roles, so it is important to consider the interests from both perspectives. Another important difference that should be kept in mind is the difference between professional and amateur (leisure) gaming, as was discussed in paragraph 3.4. It will have to be considered for each interest whether it might affect amateur gaming as well, or if it is possible to distinguish the two fields to begin with.
5.2 Citizen freedoms One EU principle that seems to relevant in basically every field, and the eSports field is no different, is the internal market.82 The free movement of persons and services contained in the internal market principle are of importance to professional gamers. In Donà v. Mantero the ECJ found that professional or semi-professional football players who were employed or provided a service would fall under the scope of art. 45 (workers) and 56 (services) TFEU.83 It is not difficult to apply this concept analogously to professional gamers as well, since they provide the same kind of economic activity as professional sportsmen. Potential EU professional gamers can run into some of the same problems as sportsmen in regular sports, which Barnard mentions in her discussion of sport case law.84 There can be for example rules limiting participation to professional matches to nationals of the country, rules obliging a minimum number of home-grown players (trained by the club), rules requiring fees to be paid when a player is transferred, etc. Professional gamers can also be limited in their options by these kinds of rules. To protect the free movement of professional gamers, there should be no rules in effect that are discriminatory, nor those liable to prohibit or otherwise impede free movement (market access), as was decided in the Säger case.85 Amateur (leisure) gamers don’t share this same interest, since this is exactly what distinguishes the two: amateur gamers don’t perform an economic activity so these particular freedoms don’t apply to them. As consumers of the eSports field, European citizens also use the internal market principle, but then indirectly. They benefit from a good appliance of the free movement principles to those involved with eSports, to create the best possible experience. For example if professional gamers were severely limited in playing for a different team, this might affect the quality of the professional games in the end. Likewise, if for example service providers who broadcast the matches don’t enjoy their free movement of services (for example not allowed to stream the games online in every EU country), this could mean that an eSports supporter is not able to enjoy the full potential of eSports. A consumer might use its citizen rights directly, when for example visiting an eSports event in
82 Art. 26 TFEU 83 Case 13/76, para. 12. 84 Barnard 2010, p. 246-253. 85 Case C-76/90, para. 12.
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another Member State86, but these visits are normally only a couple of days and thus not likely to meet much obstacles (though in theory there are obstacles possible).
5.3 Morals and health The public health is an important interest of the EU that it wants to protect for its citizens, ensuring a high level of human health protection.87 Questions of morals are mostly still national questions, where every Member State may differ in their values, but these two topics lead to the same question: does the EU really want to promote eSports, or can gaming cause adverse effects? This question can focus on two aspects, firstly: can eSports cause any health problems for the individual, and secondly: do eSports comply with moral values of society? These questions are important since the EU would not want to promote an activity that is harmful to the practitioner, and though the EU does not really have its own moral value system they would not promote activity conflicting with some Member States societal values. The health issue was formulated broadly above (‘any health problems’), but this can be nuanced. Regular sport for example, is not always safe either. Just recently the sport American Football got a lot of criticism for causing for example serious brain injury.88 The in Europe more popular soccer might also be cause of concern since the heading activity in the sport can also lead to cognitive impairment.89 These examples show that negative health effects do not automatically mean that the EU (or Member States) will not support the activity (reasons for this could be that some changes might take away the negative effects, positive effects might outweigh the negative, but perhaps also the traditional strong position of regular sports in society). Obviously playing video games is not a cause of serious brain injury, but there can be adverse physical effects for professional gamers. Research has shown that continuously watching a computer screen can lead to for example eyestrain, eye fatigue and dry eyes.90 There are however a lot of measures that can be taken to reduce this effect, for example proper lighting, having regular breaks, use eye drops, and there are even special computer glasses that greatly reduce many of the symptoms. RSI (repetitive strain injury) due to prolonged use of keyboard, mouse and computer can be another adverse effect that is relevant for the eSports field.91 Again these effects might be reduced by adjusting factors, like (most importantly) the posture of the gaming, and possibly the equipment (e.g. proper chairs). There are thus health concerns for professional gaming, but it would go a bit far to call professional gaming a
86 Art. 21 TFEU. 87 Art. 168 TFEU. 88 Belson 2013. 89 Matser 2010, p. 4-5. 90 Blehm 2005, p. 2-8. 91 Blatter 2002, p. 4-8.
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danger to health, especially since negative effects can be greatly reduced by proper behaviour and equipment. It is the EU’s interest to help its citizens who are (potential) professional gamers to reduce these health concerns. Spectating citizens obviously have to worry less about these effects, especially when they go to live eSports events where they watch the matches on a big screen. The only concern that could exist for them is if they follow the eSports events on their computer for prolonged periods of time, then the same eye concerns would exist for them as for the professional gamers themselves. The EU’s interest here would be the more general one that it wants its citizens to make proper use of their computers (to reduce adverse effects). However, as was concluded in Chapter 3, it is not that easy to make a clear distinction between professional and amateur gaming. The two fields are closely linked and supporting eSports would mean actively approving leisure gaming as well. There are some concerns related to playing video games in general. A study has shown for example that gamers who play MMORPGs (Massive Multiplayer Online Role-Playing Games) are more likely to spend more time in the game, have reduced sleep quality, experience negative effects on social and academic life, enjoy an overall reduced health, etc.92 MMORPGs do not have such a big role in eSports (it’s not so easy to host tournaments in these games), but even so this study shows that there is a relation between increased gaming time and several health and social factors. As was mentioned in Chapter 2, one does not become a professional gamer without practice: someone who’s aspiring to become a professional gamer will put a lot of time in the game before reaching this goal. It is therefore important for the EU to have a good view on the effects of video games (not only MMORPGs) on the lifestyle of gamers, and how they might prevent adverse effects, before endorsing the eSports field. Moral concerns can also be raised when discussing leisure gaming. An important example of this is the concern that violent video games make (especially young) gamers more violent. This view is advocated by inter alia Grossman, who as self-proclaimed expert in “killology” discusses in his book “Stop Teaching Our Kids to Kill” multiple cases of violence by young individuals (the infamous school shootings) and calls First Person Shooters (in which the gamer play directly as the gunman in game) ‘murder simulators’.93 Though Grossman is often dramatic in his book, he does represent a popular opinion in modern society, backed up by scientific research. For example Anderson and Bushman found a substantial increase in aggressive behaviour in all age categories of test subjects after playing violent video games.94 Funk, Baldacci, Pasold and Baumgardner find that video game violence can lead to lower empathy and stronger pro-violence attitudes in young children.95 This does not mean
92 Smyth 2007, p. 2-3. 93 Grossman 2009. 94 Anderson 2001, p. 5-8. 95 Funk 2004, p. 30-35.
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that all this research is conclusive. Weber, Ritterfield and Mathiak for example nuances their findings in their neural research for example by stating that virtual violence might be necessary for the player for virtual survival, which does not mean that the player is more aggressive in real life at all.96 Ferguson goes a lot further by openly criticizing the methods used in the existing research field on violent video games.97 He argues that the different studies have used different (unstandardized) measures of aggression, often poorly validated, bring inconclusive or negative findings forward as positive findings, do not account properly for third variables (like personality or family history), etc. Of course not every video game is violent in nature, and eSports games are played on professional level based on measure of skill, not of violence, but it would be difficult for the EU to support eSports without having an effect on video games in general. At the moment there is a European game rating system (PEGI symbols98), which shows there’s a common concern about this issue. However not every Member State takes part in this system, Germany for example uses its own rating system (USK99) and Germany is known for being strict on video game violence, willing to ban certain controversial games like Manhunt and Left for Dead 2. The effectiveness of these measures are debatable though, since retailers do not have to take PEGI symbols (for example age recommendations) into account (it is a voluntary system), and German bans on games are not so effective when gamers can just get their game cross-border or download them illegally online. With the popularity of video games increasing, it is in the EUs interest to protect its citizens from negative effects of playing (violent) video games. It also should be kept in mind that playing video games has positive effects as well (besides providing leisure). Ferguson finds for example that playing video games can also increase visual cognition (eye movement scanning, direction of attention, anticipation of consequences, etc.).100 Gee further mentions positive effects of certain games, like sparking interest in history, learning to request information at the right moment, invoke creational skills when giving a wide variety of options in game, progressive learning of skills to overcome obstacles, etc.101 These positive effects should be kept in mind when the EU wants to protect its citizens against the negative effects.
96 Weber 2006, p. 50-55. 97 Ferguson 2009, p. 105-115. 98 Pan European Game Information, more information on
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5.4 Gambling
5.4.1 Relationship between gambling and gaming When one would say “playing games for money”, the first thing that could form in a person’s mind could be online gambling rather than professional video games. This paragraph will look at two topics. First it will look at the relationship between online gambling and eSports, and secondly in the next subparagraph it will discuss betting within eSports. The online gambling industry is big business, according to a report from GamblingData solely the UK market was worth 1.7 billion GBP (approx. 2.0 billion euro102) in 2011.103 This market exists out of four main components: sports-betting, casino games, poker and bingo. The most important difference between online gambling and eSports is that online gambling exists out of games of chance, while eSports uses games of skill. Obviously the boundaries are not as exact as that: poker for example still requires a certain level of skill before being able to go professional, but in essence you still get random cards. The skill involved is dealing with the situation (the available card) you get by chance. In professional gaming the perimeters are more clear up front, for example in the game League of Legends you even know what characters the enemy team has selected so you can respond to it, in game timers of important objectives are known upfront, how much bonus certain objectives give, etc. It is thus not that eSports don’t involve a factor of luck, nor that online gambling cannot involve a level of skill, but in essence the two fields differ on this point. Add to this that the both fields come from a different concept. All the different online gambling sectors (sport betting, poker, casino games, etc.) are often combined on online casino sites like www.williamhill.com and www.royalvegascasino.com which usually give a welcome bonus to new members of several hundred euros, give flashy promises of the possible winnings, and even give the possibility to do all this on mobile phone. The concept of eSports on the other hand is based on a gaming society, giving the possibility of competitions in skill. There are money prizes involved for those few who can prove themselves in a particular game, but to compare this to the money based online gambling would be the same as comparing professional football to a physical casino. Online gambling and professional gaming are two different concepts. Linking them to each other could lead to eSports being judged on the wrong merits and associated with possible negative aspects of online gambling. Especially for a field that hasn’t managed to become a main stream activity, being associated with a sector like online gambling could impede this process. For example professional gamers might already have issues with explaining that they play video games for a living to their surrounding environment, this would surely be no easier task when this is associated with
102 Exchange rate used of 27 June 2013. 103 GamblingData 2012, p. 6-27.
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gambling. This mostly comes forth out of the fact that the term used for playing gambling games is the same as for playing video games: ‘gaming’. That this risk is not only theoretical was recently proven by the Swedish government. The Swedish supervisory authority for gambling and lottery, the Lotteri Inspektionen (Gambling Board) decided in June 2013 that commercial LAN parties (get together of computers mentioned in previous chapters) would require a permit from then on, costing up to 4000 euro, as well as additional possible costs of inspection and verification.104 This decision is based on a revision of last year’s revision of the Swedish slot machine regulation.105 This revision was finally based on a decision from the Regeringsrätten (Supreme Administrative Court) of 2004 in which the Court decided that the business of programmed computers for gaming, such as connected in a LAN environment are licensable activities.106 Since this permit system is so new, it isn’t clearly what the implications exactly will be. For now private LAN parties are excluded, and the term ‘the business of programmed computers for gaming’ seems to suggest that bringing one’s own computer would bypass this concept. Nevertheless it is shocking that the Swedish government decides to base this system on a regulation meant for slot machines, a clear gambling device. General Counsel at the Gambling Board Johan Röhr has even stated that there is no legal difference between these computers and slot machines. It will be interesting to see how the Swedish gaming community will handle this change. Sweden is known for its many LAN parties (even hosting the biggest in the world, Dreamhack) and LAN events are often the perfect place for eSports competitions to take place. It is worrisome that the Swedish government chooses to actively link video games with gambling, going as far as stating that a computer programmed for gaming (meaning: having games installed) is no different from a slot machine. The interest of the EU citizen in all this would be to see eSports receiving its own clear position, separated from (online) gambling. For the (potential) professional gamer this would be to make it easier to pursue his goals, for the spectator this would be important not to be pushed into the same target audience as gamblers (this could prevent eSports fans ending up in the gambling world because the two fields are linked by for example legal force). Besides this, the leisure gamer especially does not benefit from a general link between playing video games and games of chance. The gamer does not even seek to get any profit; he purely plays the game for fun. Any link between online gambling and playing video games seems even less to take the position of games into account than the position of eSports. The EU’s interest would be to clarify the relation between these two distinct fields.
104 Fria Tider, ‘”LAN party tax” hits Swedish Gamers’, 28 June 2013,
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5.4.2 Betting Though eSports is not the same as gambling, there does exist gambling within eSports. With the rising popularity of eSports, there was also a rise of betting. People can bet for example on which team will win a match, or on a particular in game situation (e.g. who destroys the first tower, or how long will the game last, etc.), very similar to regular sports betting. It is no surprise that companies like Pinnacle Sports and Digibet which provide for online betting on regular sports now also start providing the same opportunity for eSports. In essence there is no difference between betting on regular sports matches or eSports matches. The interest of the EU in this area should be twofold. First it will want to protect the consumer of these betting possibilities, the supporters of eSports. It will want to protect these citizens from problem gambling, in other words gambling addiction, as well as protect vulnerable groups like minors. Secondly the EU will also want to prevent unfair games from happening, since this is in the interest of both the consumer as the professional gamer. An example of this is match-fixing, when certain happenings in the games are predetermined, and though at the moment it is not a known problem in eSports, recent scandals in the regular sports world show that this could become a serious problem at some point.107 A possible situation could be for example like that of the Dutch FEB (the Dutch basketball league federation) which due to loss of funding accepted a partnership with a sports betting company with the promise to broadcast all its matches online, even most likely receiving a percentage of the profits on the bets.108 This raises concerns of influence of betting on the matches themselves, and though at the moment most eSports teams are mostly sponsored by computer related companies, it could still be a future possibility. The distinction between professional and amateur gaming is not important in this field, since there is only betting on professional matches.
5.5 Gender discrimination One topic that comes back in every field of EU law is non-discrimination. In specific gender discrimination can be found in two of the provisions of the TFEU having general application, namely article 8 that says the EU shall aim to eliminate inequalities, and to promote equality, between men and woman, and article 10 stating that the EU shall aim to combat discrimination based on sex. One would think that the eSports field, unlike regular sports where physical differences between the genders often justify different treatment (like separate leagues), would be perfect for non- discrimination, since it might seem like these physical difference wouldn’t mean as much behind a computer screen. Yet the eSports field is mostly a male world, there were for example no female players participating in the final competitions of both season 1 and 2 of the game League of Legends
107 BBC Sport 2013. 108 Boven 2013
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(though there were some female subs for some teams)109, the duel game StarCraft 2 does know more female gamers with female-only events and women participating and winning in mixed gender tournaments but the majority of the professional gamers is still by far male.110 Yet a recent study from the Interactive Software Federation of Europe (ISFE) in 16 EU Member States has shown that around 45% of gamers are female.111 Does this mean the underrepresentation of females in the professional field is a case of gender discrimination? In their discussion of the role of gender in games for learning Boyle and Connolly give a useful summary of research on gender difference in leisure gaming.112 Some important differences for example are that males play more and longer periods of time, that females often prefer different kinds of games (puzzle, educational, etc.), that males often have better spatial awareness that is required (though these kinds of differences tend to be small), and also that competitive elements appeal more to males than females. There are thus important factors that can contribute to the fact that women have a small role in eSports, but none of these gender differences are so large that it would justify the almost complete absence of female professional gamers in some of the eSports games. Taylor also finds that the eSports world is a masculine one, with women often only visible as supporters, observers, and fans.113 She further discusses the role of the gaming community itself in this situation. Though it has been shown that female gamers are a large portion of all gamers, their role is often marginalized and projected as inferior because they would only play ‘casual’ games like those on social media site Facebook. A feeling of male superiority seems general in most gaming communities, and female gamers who do show the dedication to become a professional gamer, a public figure, often have to deal with sexism. Taylor notices that it seems like the commitment to gaming and eSports of female professional gamers is constantly challenged by the community. Sometimes female-only events are held to try to negate some of the gender-mixed issues, but according to Taylor this only contributes to the belief that women don’t have the skill to compete with men. Taylor concludes that the role of female and male gamers is far from equal, and that the institutional and systemic roots of the eSports scene need to be reviewed to change this. The role of EU citizen as eSports supporter does not seem to suffer from gender discrimination, since this is exactly the role that women are accepted in. Female professional gamers on the other hand meet a lot of gender based resistance by the community and the field, and it lays
109 Information received from the Leaguepedia, an informative fan-site,
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in the EU’s legal obligation to try to take away this inequality. The field of leisure gaming can be of importance for this as well, since it is often the same community of a game that is interested in the professional field, and which can contribute to a sexist environment. Boyle and Connolly also point out that women are negatively represented in video games themselves as well, female characters often being underrepresented (few virtual heroines), or very gender-stereotyped (wearing pink clothing, or very revealing outfits).114
5.6 Excessive playtime The issue discussed in this paragraph might have fit under paragraph 5.3 instead, but I choose to reserve a separate paragraph for gaming addiction. This is because gaming addiction is not only a physical and moral issue, it is also one of the issues which clearly separates it from regular sports, and is one of the issues which it shares with online gambling. That video games can be addictive is a very popular concern about gaming. One of the game types which raises the most concerns is the MMORPG (Massive Multiplayer Online Role Playing Game) like World of Warcraft or Guild Wars. Beranuy, Carbonell and Griffiths when researching a group of MMORPG players found that the symptoms of addiction are loss of control of the behaviour involved, mood modification (e.g. guilt for losing control), and the longing for playing when they are not.115 The reasons to start playing they found were entertainment, escapism (from their environment), and virtual friendship, which in themselves do not differ much from other hobbies. But once playing time increases, many players lose control and focus their behaviour on the game, leading to psychological dependence on the game. MMORPGs are more receptive for this behaviour since they do not only require a relatively large amount of time for progress, they are also often clan-based (joining a certain group/clan/guild is necessary to progress in certain areas of the game), which can bring a kind of group pressure on the player (e.g. have to be online on certain times to join events, or have to spend time improving the character to help the group). Though it has already been established the role of MMORPGs is relatively small in the eSports scene, other game types are not excluded from this effect. Many games nowadays reward the player for putting more time in the game. First Person Shooters like Call of Duty and Battlefield work with a levelling system, meaning the player unlocks more content (better weapons and equipment) when he plays more. A lot of games work with some kind of similar system in one way or another, though not always so pressing. The group pressure that can play such a large role in MMORPGs could in essence exist in any team-based game. If a League of Legends team for example
114 Boyle 2008, p. 2-4. 115 Beranuy 2012, p. 4-11.
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aspires to become professional, it will require a lot of training, obliging team members to spend certain time in the game together. Playing video games can thus lead to excessive playing, often encouraged by the game itself. Yet using the term ‘game addiction’ itself also debatable. Wood stresses that there are no clinical criteria for video game addiction accepted by any reputable organization responsible for defining these kinds of disorders (e.g. the World Health Organization), and in his eyes the sudden use of ‘addiction’ is a result of media hysteria following increasing parental concerns.116 Wood is not trying to dispute the fact that some people play video games excessively, he only disagrees with the use of the term ‘addiction’. He emphasizes that there is only a small minority of gamers that might have serious issues, and he identifies four important factors in the current debate on video game addiction: -some players might be labelled ‘addicts’ by concerned parents or surroundings, while they do not really have problems with their game behaviour; -some players might have underlying problems and use video games to avoid dealing with these problems (the video game is thus not the problem, only the ‘escape’); -some gamers might end up labelling themselves as ‘addicts’ because of one of the two above factors; -some gamers are just not very good at managing their own playtime. While excessive playing of video games can be a legitimate reason of concern (as the examples with MMORPGs show, it can lead to neglecting other, often social, parts of life), Wood is afraid that labelling this behaviour as addiction and focusing on this ‘disorder’ will just lead to a shift of focus from the real substance, the real underlying problems, to a focus on the addiction itself. As was established either, it would be difficult to separate leisure from professional gaming for this issue. Professional gamers will come through the leisure gaming field, and aspiring an eSports career would encourage more playtime. It is in the EUs interest to make sure that these gamers know how to handle this, keeping any negative effects to a minimum. It is good to keep in mind that there is a large volume of different kinds of games, both in eSports and just in the leisure field and some games might have different effects. It is important for the EU to protect weaker groups, like those who are inherently inadequate at managing their own game time. EU citizens as supporters of the eSports field are in this role not receptive for this issue (besides their possible role as leisure gaming of course).
116 Wood 2008, p. 1-9.
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Chapter 6: Concluding recommendation
6.1 Concept In the previous chapter it had become clear that the EU has plenty of interests in the eSports field, already when exclusively looking at the position of the individual in this field. But what kind of action should the EU take to protect these interests? The European Union so far has been strikingly silent on the topic of electronic sports, its activity in the field of video games in general also being limited. This while the video games industry is constantly growing and video games seem to be a more common element in the daily life of many European citizens. This field knows a rapid development, creating increasingly more realistic games, and now also knows its own professional gaming scene (comparable to regular sports in setup) which is rapidly increasing in size. The EU seems to lack behind on this part, and that is why this chapter will use all the information gathered in the previous chapter to discuss what action the EU should undertake to protect its interests. This chapter is therefore a recommendation to the European Commission, focused on the individual citizen in the eSports field. Of course these are mere suggestions, but they should be seen as an open invitation to the Commission to start orienting itself in the relatively new field of eSports.
6.2 Legal basis If the EU wants to act in the eSports field in general, it will need the competence to do so, based on the principle of conferral.117 As became clear in Chapter 3 however, this is not such a clear task for eSports. Art. 6 (e) TFEU gives the EU the competence to support, coordinate or supplement the actions of the MS in the area of sport. Applying this article to electronic sports as well would mean a broad interpretation of the definition of ‘sport’. This is not an impossible situation, since as Chalmers, Davies, and Monti discuss, the situation of Member States being surprised by EU law going further than expected already goes back to the early sixties when the ECJ established the supremacy of EU law in the two famous judgments Van Gend en Loos and Costa v ENEL.118 The Commission could therefore argue that this article forms the legal basis for any action, but could meet serious resistance from the Member States since they have known a substantial independence regarding regular sports and might feel threatened by this use of the competence. Chapter 3 has also shown that this might not be the best solution, since eSports should fall under its own concept, being inherently distinct from regular sports. A broad interpretation of the definition of ‘sport’ might therefore not be the most accurate, nor politically possible solution.
117 Art. 4 and 5 TEU 118 Chalmers 2010, p. 185-188.
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The principle of subsidiarity, which is part of the principle of conferral, should also not be forgotten, which states that EU action should be more effective than action taken on national level.119 This test, which is meant to guarantee both the protection of national cultural identity and the effectiveness of centralised law, is not always straightforward to apply.120 We have already seen that the eSports field doesn’t know much of a national scene, but this does not necessarily mean that EU action would be more effective. Member States could for example use close cooperation between each other to solve the same cross-border issues that the EU wants to solve. So even if the Commission would find that it does have the competence to act, it will need to examine closely whether a particular action also fulfils the criteria of subsidiarity. Though the international characteristic of eSports might make it more likely that centralized EU action would be more efficient in solving relevant issues, it still is not a certain conclusion, so it will need careful consideration before any action would be taken. Yet this leaves eSports in the dark, exactly because of this unique concept, this mix of media, sport, leisure, and industry. The most effective would be to add a specific competence for eSports in the Treaties, but this would have to wait for a next Treaty amendment, and is probably not the most realistic solution. Of course the Commission is in the best position to judge if it is possible to use one of its existing competences to act within the eSports field. It would be advisable to the Commission to clarify its legal position in relation to the eSports, showing what competence it has besides any substantial opinions it might bring forward on the field itself (that will be discussed in the following paragraphs). This could be for example in a White Paper, comparable to the Commission White Paper on Sport (perhaps following a Green Paper to gain discussion by relevant parties in the field). Even if the Commission finds that it cannot base any action on an existing competence, it could still try to play an active role in the eSports field through other less formal ways. Borrás and Jacobsson discuss the Open Method of Coordination (OMC) for example.121 The OMC is a collection of old soft law traditions, though applied in a different way, the most important element being the focus on intergovernmentalism. As Borrás and Jacobsson find, the OMC is often used when a transfer of competences to EU level is not possible, as well as when there are new fields of policy where traditional regulatory instruments would not succeed. The OMC would mean that the European Council would choose the general objectives, followed by the Council of Ministers (on proposal of the Commission) choosing criteria to evaluate national practices, after which the process is mostly left to the Member States, with the control of constant evaluation. This possibility would make it possible for the EU to have its influence on the eSports field while protecting its interests. This option might
119 Art. 5 TEU 120 Chalmers 2010, p. 361-367. 121 Borrás 2004, p. 185-195.
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also be more acceptable for the Member States, since the process is intergovernmental, does not create strong obligations and is often based on a longer period of time. The Commission should decide how it will legally pursue its interests in the eSports field. This means that it should consider what existing competence it would find electronic sports under. If it finds itself to have competence, it should publish a White Paper to clarify its legal position as well as the policy goals it wishes to pursue (which will be discussed in following paragraphs). If it cannot find a legal competence, it should look for other ways to influence the field to protect its interests, for example by publishing a Green Paper to promote discussion, or consider the informal OMC procedure to get Member States together on the topic.
6.3 Internal market In essence the protection of the internal market principles might be the easiest task for the Commission, since it only requires the appliance of already existing law. As the regular sports field has shown us, spill over from other domains like the internal market are possible. What is required from the Commission is that it will actively consider the position of professional gamers to make sure the EU obligations are fulfilled. While at the moment there do not seem to be much problems on this field, it has already been argued that the international aim of eSports is an important element of the field. This means that it is also important that these problems will not start to arise. Would a Member State for example start introducing laws limiting participation to a tournament to nationals, the Commission should step in. The Commission should thus be watchful for any access restrictions that Member States might introduce in the future. Since these freedoms have direct effect, the professional gamer himself which has been adversely affected can go to national court, sometimes even against private parties. Would problems start arising, the Commission could for example establish a European reporting point (which would be more useful than national reporting points because of the international aspect of eSports) that would support professional gamers to make sure they are aware of their rights. Another important aspect of eSports in Europe is that it mostly relies on being broadcasted online. It is thus likewise important for the Commission to enforce the EU obligations in this field, to prevent Member States from restricting access which would conflict with EU interests. Altogether this issue does not demand any major action from the EU, since the developments in the regular sports field have shown that the already existing EU principles apply to all fields. It does require the Commission to be alert for any infringements of these obligations, and act accordingly.
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6.4 Adverse effects from gaming As we’ve seen in the previous chapter gaming can cause physical adverse effects, like RSI and eye problems. The importance for the EU to prevent these effects for professional gamers might not be so pressing, since these professional gaming teams can have coaches that consider these issues or sponsors that provide the proper equipment like computer glasses. However, since this field is so new, it is not yet clear what the physical effects will be in the long run. It would be advisable for the Commission to initiate or coordinate research into this topic, to be sure that everything is done to lessen these effects. The EU is in the best position to do this, especially because the eSports field does not stay within national borders, making a central research the most efficient. It is further important for the EU to guarantee this interest because professional gamers could be role models for gamers. Since playing video games is an increasing popular activity it would be in the EUs interest in general to guarantee proper use of computers to minimize the negative effects. For leisure gamers, who can also spend prolonged periods of time gaming and experiencing these issues, the Commission could for example cooperate with actors within the field to provide the knowledge necessary to fight these issues. The Commission could for example work together with game producers and publishers to provide this information in such a way that it will reach the gamer (for example not only in the game manual, but perhaps also as an extra message given by the main character at the start of the game), or coordinate the Member States to create active policy to provide this information (for example organize courses on the topic, provide the information to parents, etc.). With an increasingly ‘online’ society, an active role to guarantee proper use of computers would be beneficial, and the video game sector is a perfect place to reach (young) people. To negate physical effects of prolonged game time in the eSports field and leisure gaming, it would thus be advisable for the Commission to coordinate research on these effects (especially for professional gamers) and to actively promote the proper use of computers together with important actors in the field. Perhaps the field of eHealth can be used by the Commission.122 The EU is already active, for example, in making sure that healthcare information provided by software for mobile devices (‘apps’) to the consumer is reliable and is clear on its position compared to clinical healthcare.123 The Commission could integrate the above mentioned computer use concerns into the eHealth field by also making sure that the necessary information on computer use is provided in a clear and proper way.
122 The concept of eHealth is the use of information and communication technologies to improve health care systems. It is a field in which the European Union is fairly active. For more information,
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Another adverse effect issue is the concern about video games inducing violent behaviour. The research on this topic however is far from conclusive: it often has a lot of variables which can differ per research. Though it has already been established that the eSports field doesn’t seem to have direct problems with this issue, it would still be difficult for the EU to play a role in the field without taking a clear stance on the issue. That the EU wants to play a role in this, is already clear from the protection of video gamers Communication from the Commission of 2008, in which the Commission calls for protection of especially minor video gamers, putting much emphasis on the PEGI system.124 This shows good initiative of the Commission on this issue, and it is advisable to continue on this path. What would really contribute to clarifying this issue is conclusive research that is of sufficient scale, can identify and take into account all relevant factors, and can bring substantive conclusions applicable on clear terms to playing of video games. If the Commission could initiate such research, this could form the foundation for stronger harmonization between the Member States of measures on this issue, so that the outcome of the research can be brought in practice. Especially minors are a group of concern which the Commission wants to see protected. If research would show there is reason for stronger protection, the Commission should commit to stronger and more harmonized measures. It should not be forgotten that the majority of professional gamers are young adults, and inevitably already started playing video games when they were still minors. An example of such a measure could be an obligatory rating system applied in all Member States. Of course such harmonized measures could meet resistance from individual Member States, since they would prefer to decide themselves on specific video games, but fact is that such a scattered and national system might not be effective (since gamers might just buy across the border, or use other means to get the game). It would thus be advisable for the Commission to work for a stronger harmonization in this field, if this would proof to be necessary. Any resulting changes on the video game sector will inevitably also reflect in the eSports field.
6.5 Online gambling As was discussed in the previous chapter, it is in the interest of the EU to distinguish the online gambling sector from the professional gaming field. Both fields are inherently different, and combining the two would have negative consequences for the eSports. One of the few topics that might link the two fields is that there is a concern for addiction in both of them. We have already seen however that a gaming addiction concept is controversial, and even if there was a clear proven disorder this would not justify classifying gaming and gambling just because it could lead to the same kind of disorder. Distinguishing between the two fields should not be a hard task for the Commission.
124 COM (2008) 207 final, Brussels, 22 April 2008.
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If it would start playing a role in the eSports field, by for example a Green or White Paper or a Communication on the topic, it would already acknowledge that eSports is a distinct field. We have seen that South Korea specifically acknowledged the gaming industry by classifying it as a cultural industry. Though this kind of action would not be so obvious for the EU, it can still send a clear signal with the choice of legal basis as was discussed in paragraph 6.2. As regards to betting in the eSports field it does not seem necessary that the EU would take any specific action in the eSports field. In essence the betting on eSports is the same as on regular sports, so the Commission can just apply the policy it already has as regards to sports betting. What is important is that the Commission does not ignore the betting in the eSports field, nor let it gain a position of influence in the field (for example for match-fixing). The regular sports field has already shown that this possibility exists, and to prevent the negative consequences the Commission would be advised to take eSports betting into account when applying their gambling policy.
6.6 Women in eSports The EU has many possibilities to combat gender inequality in the eSports field. First of all the Commission could initiate research to find what issues female professional gamers (but also female gamers in general) meet and where these issues come from. Though it doesn’t seem likely that a Member State measure would discriminate between the sexes related to eSports, the Commission should be alert for any measure that breach EU law, which the Commission could take the specific Member State to the Court of Justice for. A female gamer who feels discriminated against (for example by a professional team that rejects her for being female) could bring this to a national court. Like was mentioned in paragraph 6.3, a European reporting point could really help out these women in establishing their rights, especially since it is likely that a discriminating party is from another Member State. The Commission could also work together with actors in the field to promote gender equality. Gender discrimination is an important topic of the EU, and is just as important in the eSports field as it is in any other. It might therefore, besides recognising the specific issues in the field, not be that necessary to take specific action in the field. It should not be forgotten however that the eSports field is heavily influenced by the general gaming community, and it is this community that knows issues of sexism, affecting the position of female gamers. To change this community completely is a hard task, but it is still important that the EU does all it can to promote gender equality, especially in a field that is becoming increasingly part of the daily life of its citizens. An example of action is the recently launched “No Hate Speech Movement” campaign of the Council of Europe, which focuses on
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the fights against human rights violations online, and this also applies to sexism in video games.125 It would be advisable to the Commission to start consulting and cooperating with relevant parties (e.g. CoE, Member States, game developers, gaming associations) to identify the issues and create an action plan to solve this issue. In an increasingly online society, it is important that issues like gender discrimination and sexism are not accepted or tolerated principles in parts of this society.
6.7 Managing game time The negative effects of excessive game time are another point of issue for the EU. The concept ‘gaming addiction’ however is controversial so it would be advisable for the Commission to first initiate research into this issue, identifying real characteristics and causes of these problems. Excessive gaming as an escape method for other problems for example, is difficult for the EU to solve. Excessive gaming because of the inability to manage play time on the other hand can be a target for the EU. The Commission could for example work together with actors in the field like game developers to introduce measures to reduce these problems. The game World of Warcraft (a very popular MMORPG receiving criticism for inducing excessive playing) for example has introduced ‘parental controls’, allowing the parents of a minor gamer to put in restrictions on for example the daily hours a child may play, or on which specific days, etc.126 It is obvious that in preventing excessive game time for the vulnerable group of minor gamers, parents can and should play a big role. The Commission could start coordinating Member States to guarantee that this is happening, for example by making sure parents have sufficient information and methods to keep this under control. This issue becomes more complicated when related to adult gamers however. They might have issues with managing their gaming time as well, and experience negative consequences because of it, but it would be harder for the EU to get involved in this (adults are not necessarily a vulnerable group and can make their own choices). The Commission could still play a supporting role however by providing possibilities for these gamers that do run into problems to improve their situation. This could be done for example by coordinating the Member States to provide for this sort of assistance, like establishing an institution that provides courses to teach gamers better control over their game time or actively works with individuals on their issues that led to excessive gaming. These measures could be taken locally, but EU involvement would guarantee that this issue is taken care of sufficiently throughout the Member States.
125 For more info, visit the website of the campaign,
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6.8 Other interests This paragraph is meant to emphasize that though this research has focused on the main interests of the European citizen in the eSports field, there could be many more interests that would bring the EU to play a role in eSports. Protecting citizens from the negative consequences of betting, or from possible adverse effects from certain games, which were mentioned before, are examples of consumer protection. The EU could have more interests to protect the European video game consumer, for example data protection. Professional gamers, as well as leisure gamers, often need to make accounts with game publishers to be able to play their games. This information as well as game related information is all stored by the gaming industry and it should be in the interest of the EU that this information is not abused or stolen. Making sure that the EU’s data protection framework is correctly applied in the eSports field is therefore of importance. The EU can also have economic interests like supporting the game industry to maintain this job sector. The examples from South Korea have already shown that government involvement can mean a lot for the industry, for which recognizing the role video games play in the daily life of the citizen. The EU could for example coordinate Member States to promote private investment in this sector as well as cooperating with the actors in the eSports field to create a favourable environment for video games. There can also be interests that have a political reasoning behind them. Since the eSports field and the gaming community have a very international characteristic (and a relative small national scene) it could prove useful for the EU to become active and supportive in the field to promote the solidarity between Member States (the European identity). Another political interest could be that the EU acknowledging the eSports field and shaping a policy would give a clear signal that the EU does not lack behind the reality of European society (this would fit in the Digital Agenda strategy of the EU).
6.9 Concluding remarks All the proposed measures in this recommendation can be viewed as rather soft: necessary research, cooperation, coordination and support. I haven’t advised any really far going measures because of three reasons. The first reason is the issue of the legal basis. The legal basis will depend on what path the Commission will choose, but it is unlikely that this will be a very broad competence. That is why I have chosen to recommend a more supportive role, like that of the regular sports field. Secondly the eSports field is a very new field and has arisen from the video game sector, which is still lacking conclusive research on some topics. This is why it is important that the EU first identifies the possible issues within the field. Research will be necessary to enable the EU to decide how it will proceed. Since South Korea has an important history as gaming nation, as well as a large role in eSports, the country could be an important source for research on these topics. Thirdly, being a new field the
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eSports is also in a still early stage, where the field itself is constantly busy improving. Self-regulation might therefore be better to handle the issues as they arise, while strong measures influencing the field might adversely affect it instead. A coordinating role for the EU would therefore make it possible for the eSports to keep developing, while the EU pursue to protect the interests it has. While the eSports field is new, it is also rapidly increasing in size and popularity. It seems to be a good example of an outcome of the modern digital era. While it shares characteristics with the regular sports, it is a distinct concept with its own unique aspects. The regular sports field has shown however, that issues can arise that the field cannot seem to handle itself. Since in the eSports world, there is not a strong national scene, the EU is in the best position to prevent these issues from arising, to protect its citizens. As the South Korean situation has shown, this involvement could have a big impact on the field. In consideration of all the findings of this research, it would a pity of the European Union would not establish its legal role in the field to pursue its many interests, while supporting this new European world of electronic sports.
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