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WWE Wrestler Loses Bout with Video INSIDE THIS ISSUE

Game Company in Copyright Trial Will New Jersey be the center of the Esports Universe? 2 By Hannah Shankman, GW Law, 3L the G.I. Bro character beyond the ring and developed a comic book starring a cartoon FREE KICK?–UK Soccer n June of 2021, a federal jury in Texas version of G.I. Bro. Drawn by freelance Players’ Seek Clarity on Data found that Activision Blizzard Inc., a I comic book artist Erwin Arroza, the G.I. Bro Rights 3 popular video game developer and publisher, cartoon was depicted as a muscular character had not infringed the copyrighted persona of Activision Gets Expansion, But sporting military garb and dreadlocks. Not the Type it Planned On 5 retired WWE wrestler Booker T. Huffman. Booker T. subsequently registered the Booker T. alleged that Activision copied one COVID-19 and Sponsorship of his personas, “G.I. Bro,” in Call of Duty: comic book and four drawings of the G.I. Rights: Rise in Eports 5 Black Ops 4. Citing to similarities between Bro character with the United States Copy- Online Gaming and Online his military-themed character and the Call right Office. It was through the rights and privileges associated with these works that Safety – Where Is the Law of Duty character David “Prophet” Wilkes, Heading? 7 Booker T. sued the video game company for Booker T. brought his case against Activi- copyright infringement and sought an award sion. He alleged that Activision’s posters and Esports Included in Flurry of States’ Sports Betting Bills 8 of profits from the sale of the game. After a marketing materials for Black Ops 4 that four-day trial, the jury sided with Activision displayed the image of Prophet infringed Esports Programs Move the and found no instances of wrongdoing. upon his G.I. Bro copyright. Chains at FBS Schools 9 Booker T. Huffman donned the G.I. Bro In the marketing materials at issue, persona at various points in his professional Prophet is pictured as a muscular military- wrestling career. In 2015, Booker T. took See WWE on Page 12

Ramirez v. Electronic Arts: What You Sign Is What You Get By Jeff Birren, Senior Writer Facts it (Id.). It includes an arbitration provision that states, in relevant part: evin Ramirez began playing Electronic EA creates “digital interactive entertain- KArts Inc. (“EA”) games in 2011. He ment” including “developing video games “[A]ll disputes, claims or controver- started with EA’s FIFA game and added for consoles and computers.” Each game “is sies arising out of or relating to this governed by EA’s standard User Agreement.” Madden NFL Game in 2013. After playing Agreement, any EA Services and its To access “the full features of EA’s games, EA games for eight years, Ramirez decided marketing, or the relationship be- including the ability to use Ultimate Team that EA was violating California’s anti- tween you and EA (“Disputes”) shall Packs, the user must agree to the terms of gambling law. So, in October 2013 Ramirez be determined exclusively by binding the User Agreement.” When the user first filed a putative class action against EA. EA arbitration. This includes claims that loads the game, a pop-up window appears. responded with a motion to compel arbitra- accrued before you entered into this This “alerts the user that they must accept tion. Ramirez opposed it, but the U.S. Dis- Agreement…” (Id.). trict Court in San Jose granted EA’s motion the User Agreement before continuing to the (Ramirez v. EA, Case No. 20-cv-05672-BLF game. The user is able to scroll through the The arbitration “shall be administered (“Ramirez”) at 2 (3-6-21)). entire User Agreement” before consenting to See RAMIREZ on Page 4

Will New Jersey be the center of the Esports and the Law Esports Universe?

HOLT HACKNEY By Nicole Kardell, of Ifrah Law 1. The DGE views the separate esports Managing Editor and Publisher games (e.g., Fortnight and League of he EGR’s East Coast Virtual Briefing Legends) as leagues and their respective 2021, took place May 26, 2021 with T players as athletes of each particular Hackney Publications a packed agenda, including revealing the league. In other words, each game winner of the Ifrah Pitch Competition. publisher would be akin to the NFL We wanted to provide some highlights on THE ROBERTS GROUP or MLB and players specialize in a developments in esports as a gambling verti- Design Editor particular game without crossing over cal. Esports was the focus of a Q&A session to other games. ELLEN M. ZAVIAN, ESQUIRE hosted by Chris Grove, a partner at Eilers Adjunct Professor at George & Krejcik Gaming. Grove interviewed the 2. Developing a gambling model for Washington University, director of New Jersey Gaming Enforcement, esports is not as clear cut as traditional Professorial Lecturer in Sports David Rebuck on the future of esports and sports betting and entrepreneurs are Law at George Washington Law New Jersey’s efforts to become the hub for across the map with ideas. School all things esports. 3. Nevada and New Jersey are the two states Editor In Chief The conversation started off with an over- most focused on monetization of esports COURTNEY SEAMS view of New Jersey’s journey as a “vanguard” while both are still grappling with how Researcher of online gambling regulation, the reasons to convert it into a legal gambling op- for its success, and how this translates into portunity with all the protections in BRIANA NARDONE what New Jersey will do to develop a suc- Marketing place for other gambling verticals. cessful esports market. 4. Certain esports publishers have been Please direct editorial or subscription Rebuck said that New Jersey Governor reluctant to open themselves to esports inquiries to Hackney Publications at: Phil Murphy has made clear that he wants [email protected]. gambling out of concerns over scrutiny his state to become the established hub for faced in regulated gambling. The DGE Esports and the Law is esports and related gambling. In that vein, has worked with others to educate the published quarterly by Hackney Rebuck noted that the NJ DGE has been Publications. publishers that, like sports leagues, it in talks with stakeholders across the esports is not the leagues, but the gambling industry about what esports gambling should Postmaster send changes to: operators who are subject to gaming Hackney Publications, P.O. Box look like. He further invited stakeholders licensing. 684611, Austin, TX 78768. and entrepreneurs to engage the DGE in discussions as they assess and build an esports 5. Rebuck anticipates that, once a suc- Copyright © 2021 Hackney cessful model for esports gambling is Publications gambling model. According to Rebuck, it is the entrepreneurs, as opposed to the es- developed others are likely to follow ports publishers, who are most aggressively and join. pushing to monetize esports in this fashion. At the end of the session, Grove asked While esports is still “very much a niche a question related to what’s near and dear industry,” as Rebuck noted, operators, to his heart: online poker. He wanted to publishers, and entrepreneurs have been know Rebuck’s thoughts on whether there presenting a host of ideas to the DGE on will be growing liquidity in poker through how to monetize the industry. He was clear international compacts. While Rebuck that esports professionals see esports as an believes growth in the international poker athletic event and that esports are authorized pool is tricky (noting that regulatory schemes as sporting events under New Jersey’s sports are apples to oranges between the U.S. and wagering law. other jurisdictions), he is confident more Some takeaways from Grove’s conversa- U.S. states will join the Multistate Internet tion with Rebuck: Gaming Agreement. n

FREE KICK?–UK Soccer Players’ Seek Clarity on Data Rights

By Will Scolinos, GW Law, 3L statistical data, despite being disseminated seek greater control over where their data pursuant to private broadcast agreements, is shared thereafter. ho owns Pro Soccer Player Harry was a public fact and should be distributed Richard Dutton, representing Project Kane’s top speed in a match? The W free of fees and licensing. velocity of a well-struck cross by Soccer Red Card, was quoted by Wired.com saying The GDPR places strict regulations on Midfielder Bruno Fernandes? The height that, “The details of their passing accuracy, the use of personal data, which it defines of Brazilian Footballer Alisson Becker? their fitness, their speed, all of those things broadly as “any information relating to an To finally resolve ambiguities related to which you see in various guises on count- identified or identifiable natural person players’ ownership of their data, more than less websites or games – that’s how players (‘data subject’).” The players will rely on the 400 current and former UK soccer players are assessed now… The simple message following arguments: (1) Lack of transpar- (known collectively as Project Red Card) are is in order to do that, you need a player’s ency and fairness, (2) Failure of consent bringing a lawsuit alongside former Cardiff consent, and you ain’t got it.”4 violates the legal processing requirement, City and Layton Orient manager Russell One could argue the player only owns (3) Failure to provide additional protec- Slade. The suit asserts that certain gambling, a small percentage of the goal’s data. For tions for health-related data, (4) Consent gaming, and data processing companies use example, when a player scores a goal with is not part of their player’s contract, and players’ personal, performance and tracking (5) Violating protections against profiling a Nike ball, in Adidas cleats of Arsenal’s data for financial gain without the consent data subjects. colors, in a stadium paid for by the club of the players to whom the data relates, Conversely, the Defendants will argue and league, how much of that goal does the purportedly in violation of EU law.1 they have a legitimate interest is such data player really own? Does he/she own enough Project Red Card argues that the players’ and their interest is more important than to erase it from the official league statistics performance data (speeds, distances traveled the rights of the footballers. or merely from a gambling website? in a match, etc.) should be treated under The main ripple in the GDPR is that Some experts wonder if the solution lies UK and EU data protection laws as personal there is presently no consensus on which in a player’s contract or collective bargain- data and is being exploited for financial gain sporting data deserves full GDPR protec- ing agreement. In the United States, the without their consent. tions. This untested legal landscape sur- NBA and the NFL have already taken this Ultimately, Project Red Card’s success rounding this issue could cut either way approach. The NBA permits nonbiometric hinges on which data is legally considered because, in the past, certain sports related personal data and or data concerning health. data sharing without individual players’ data has been treated as belonging to the In 2018, EU passed the General Data consent and the NFL operates similarly, public domain. For instance, over the past Protection Regulation (GDPR) which with the addition of biometric data. several years, data related to scoring a goal provides protection for one’s data, includ- “Analytics” has become a buzzword in has been treated by the EU courts as data ing athletes. The GDPR grants individuals professional sports in this post-Moneyball belonging to the public domain.2 However, (i.e. players) the right to rectify inaccuracies era. Teams today spare no expense in identi- it is worth noting that the GDPR contains in their data, access the data themselves, fying and exploiting the most minute trend an exemption for data shared for journalistic and remove their data altogether from the that could lead to a competitive advantage. purposes, but it is more strictly enforced dataset. Should the players elect to delete More data is recorded each year. And today, for data used for gambling. their data, the less valuable the dataset will as teams and leagues seek to recoup lost According to the BBC’s interview with be to purchasers. revenues incurred during the pandemic, Jason Dunlop, a technology expert who co- Prior to 2018, the EU courts have held founded the sports data firm Global Sports there is more data than ever available to that statistical data is not personal data. For Data and Technology Group alongside sell. Drawing the line of ownership will instance, in 2012, the European Courts of n Project Red Cross’s Russell Slade, players prove difficult in today’s betting world. Justice found that Football DataCo, which “have no issue with football clubs using the aggregated and licensed out Premier League manager leads lawsuit over use of players’ personal data.”3 Instead, he argues that the players statistical data (scoring, assists, etc.), did data, BBC Wales News, (July 28, 2020), https:// www.bbc.com/sport/football/53557706. not own the data. Instead, it ruled that the 2 Football Dataco Ltd., et al. v. Sportradar 4 Oliver Franklin-Wallis, There’s a big fight brew- GmbH, et al., (2012) ECR1-0000, the Court ing over the Premier League’s player data, WIRED 1 Regulation (EU) 2016/679 (General Data of Justice of the European Union (“CJEU”). UK, (July 8, 2020), https://www.wired.co.uk/ Protection Regulation). 3 Nick Hartley & Philip Marsh, Russell Slade: Ex- article/project-red-card-football-data.

Ramirez v. Electronic Arts: What You Sign Is What You Get

Continued From Page 1 by the American Arbitration Association and is bound to EA’s User Agreement, in- arbitration provision in capital letters in the (“AAA”) under its Commercial Arbitration cluding the Arbitration Provision and the software (Id.). Rules” and: class action waiver.” Consequently, “Ramirez Courts “have consistently enforced” must arbitrate all of his claims against EA on similar provisions when the user had actual “YOU AND EA AGREE THAT an individual basis.” Ramirez countered that EACH MAY BRING CLAIMS notice of the provision or was required “to “the Arbitration Provision is unenforceable” AGAINST THE OTHER ONLY affirmatively acknowledge the agreement under case law “because it bars his ability IN YOUR OR ITS INDIVIDUAL before proceeding with the use of the service” to seek public injunctive relief.” EA’s Reply CAPACITY AND NOT AS A (Id.). Finally, Ramirez did not “dispute that argued that pursuant to AAA rules, “gateway PLAINTIFF OR CLASS MEMBER he agreed to” the EA agreement, nor that issues of arbitrability—such as validity of the IN ANY PURPORTED CLASS OR the Arbitration Provision “covers” his claims agreement—must be decided in arbitration REPRESENTATIVE PROCEED- against EA. This was “sufficient to show that rather than by the Court” (Id.). ING. The arbitrator shall not consoli- an agreement to arbitrate was formed” (Id.). date another person’s claims with your “Legal Standard” “Delegation of Arbitrability” claims and shall not preside over any The Court noted that the “Federal Arbitration Ramirez argued that the entire arbitration type of representative class proceeding. Act (“FAA”) favors arbitration and a liberal agreement was unenforceable “because it The arbitrator may award declaratory federal policy favoring arbitration agreement, bars his right to obtain injunctive relief.” or injunctive relief only in favor of the notwithstanding any state substantive or EA responded that it “properly incorporates individual party seeking relief and procedural policies to the contrary.” A written AAA rules” that provide that the validity of only to the extent necessary to provide arbitration agreement in a contract “shall be the arbitration agreement is “delegated to relief warranted by that party’s claim. valid, irrevocable and enforceable, save upon the arbitrator” but not the court. The Court If this specific subsection is found to such grounds that exist at law or in equity agreed. Prior cases “established that incorpo- be unenforceable, then the entirety for the revocation of the contract” (Id.). ration of arbitration rules—to include the of this agreement to arbitrate shall be In “deciding whether to compel arbitra- AAA rules— into a contract constitutes clear null and void” (Id. at 3, emphasis in tion,” the Court “determines two gateway and unmistakable evidence that the contract- the original.) issues.” The first was whether “there is an ing parties agreed to arbitrate arbitrability.” agreement to arbitrate between the parties” Ramirez, or his lawyer, was undeterred. Here, the incorporation of the AAA rules and then “whether the agreement covers the On October 13, 2020 Ramirez filed his constituted a “clear and unmistakable del- dispute.” However, these “gateway issues complaint. He alleged that “an online, in- egation of immediate issues of arbitrability can be expressly delegated to the arbitrator game feature called Ultimate Team Packs, to the arbitrator” (Id.). where the parties clearly and unmistakably which is present in a number of EA’s games, Ramirez insisted at oral argument that provide otherwise” (Id.) qualifies as an illegal ‘slot machine or device’ the purported incorporation of AAA rules under California Penal Code §330(d)” (Id.). “Formation of Arbitration “without explicit reference to the provision Ramirez had three class claims. The first Agreement” of arbitrability is insufficient to establish was a purported violation of California’s The first issue was “whether the parties agreed delegation.” However, he failed to explain Unfair Competition law; the second was to arbitrate” (Id. at 4). The Court found that “how this situation is meaningfully different” a purported violation of California Legal EA had “provided sufficient evidence that than a prior decision. The Court thus found Remedies Act; and the third was for unjust Ramirez accepted the Arbitration Provision, that the “incorporation of the AAA rules” enrichment. Ramirez requested that “’EA and that he did so knowingly.” That provi- into the EA User Agreement “is sufficient modify its games” to prevent “users from sion “governs” users’ access to the product, to demonstrate delegation of arbitrability to engaging in gambling, including through and it covers all “disputes, claims or con- the arbitrator” (Id.). the use of Ultimate Team Packs or similar troversies arising out of or relating” to the mechanisms” (Id.). User Agreement. In order to have used the “Class Action Waiver” EA filed a motion to compel arbitration, product, “Ramirez must have affirmatively Ramirez claimed that the arbitration provi- asserting “that Ramirez, by installing and clicked a button indicating that he accepted sion was unenforceable, based on a 2017 playing FIFA and Madden NFL, accepted the User Agreement” and this included the See RAMIREZ on Page 8

Activision Gets Expansion, But Not the Type it Planned On

By Ellen M. Zavian, Esq., workers was filed on Monday, August 23, of the obligation to retain evidence pending Editor-in-Chief, ESL 2021. According to the filed documents, the DFEH’s investigations. the word ‘employees’ has been changed to It has been reported by Axios that an AB California court has expanded the ‘workers’ in order to include employees and anti-discrimination lawsuit matter, spokesperson denies all such allegations. A contingent or temporary workers. against Activision Blizzard (AB), to include The original complaint filed by DFEH The ‘interference’ allegations within the against AB back in July 2021 accused AB temporary workers to the already group of amended complaint seems to stem from of fostering a “pervasive frat boy workplace female full-time employees. If this was not alleged actions by AB in its attempt to culture” that subjects women to harassment, enough, California’s Department of Fair use their executed NDAs, which require Employment & Housing (DFEH) has also the ‘workers’ to first speak with AB before abuse and lower pay. This filing came after a alleged AB has actively interfered with its going to DFEH directly. In addition, the 2-year investigation by DFEH and a failure investigation into the anti-discrimination amended complaint accuses AB of shred- to resolve the issues with AB. matter. ding documents related to the investigations Despite AB’s active steps to tackle the Expanding the Complaint to redefine and complaint, by the human resource per- issues in the complaint, it is clear this matter the ‘group’ to include this larger group of sonnel. Such actions would be in violation is not going away anytime soon. n COVID-19 and Sponsorship Rights: Rise in Eports

By Gill Dennis and Aumair Qayum, of anticipated title is released, a plethora of a prize pool of $35 million. However, other Pinsent Masons LLP official (and unofficial) YouTube and Twitch major e-sports competitions, such as Activi- live streams, play-alongs and compilations sion’s Call of Duty League Championship he COVID-19 pandemic has had a follow, with countless forums, discussion 2020 took place online. Despite lost ticket fundamental impact on the market T boards and discords also opened. So, it is sales, players at that event could play for a for sponsorship rights in traditional sports. total prize pot of $4.6 million. Similarly, However, one industry which has by its of little surprise that where a new game is Blizzard’s 2020 Overwatch League con- very nature been primed for this moment focused on or has an element of multiplayer tinued online, retained its $5 million prize is e-sports. As such, where unpredictable competition, the e-sports giant has always pool and was picked up by mainstream cancellations and postponements of sport- been ready to swallow it up. broadcasters and aired on ESPN, Disney and ing events have led to sponsors feeling Emergence of Esports ABC. The pandemic also saw other smaller frustrated, e-sports offer a new horizon of E-sports is essentially a form of professional regional organisations and competitions opportunities. sporting competition through the medium continue to thrive. Rising Popularity of Video of video games. Competitions can take place During the crisis, other sports were able Gaming anywhere in the world, both online and of- to embrace e-sports, either for the first time The worldwide popularity of video gam- fline, with the most popular events being or with an increased emphasis, with event ing has never been in question. When held in large arenas with packed crowds. organisers arranging alternative e-sports development budgets and gross profits for Depending on the game in question, players events for real-life sports matches or races best-selling games began to dwarf those of can compete individually or as part of teams that would otherwise have to have been most Hollywood blockbusters (Rockstar’s and win substantial cash prizes. cancelled or played without crowds in stadia. Grand Theft Auto V grossed an eye-watering When the COVID-19 pandemic first The Premier League hosted an online $6 billion from a budget of $265 million), hit, e-sports were not entirely immune. ePremier League: Invitational tournament interest from those outside the industry The prestigious Dota 2: The International where Premier League players, including began to peak. tournament which was due to take place in Liverpool’s Trent Alexander Arnold and As video gaming continues to become more August 2020 in Stockholm was cancelled. Manchester City’s Raheem Sterling, played impressive and accessible (more people play The popular tournament was last held in FIFA 20, competing against one another video games today than ever before), the Shanghai at the Mercedes-Benz Arena in with matches streamed on YouTube. Simi- subculture has grown with it. As each new front of an 18,000 capacity crowd and with See COVID-19 on Page 6

COVID-19 and Sponsorship Rights: Rise in Esports

Continued From Page 5 larly, Formula 1 also shifted online, with For example, a sponsor with a focus on the which have also entered the e-sports world drivers such as Jenson Button, George Rus- North American and EU markets will most include Coca-Cola, Marvel Entertainment, sell, Lando Norris and Charles Leclerc taking likely wish to target tournaments centred Beats Electronics, Pizza Hut, Gillette and part in a virtual grand prix using the F1 2019 on the FIFA or NBA video games, given DHL. game. Both competitions were viewed by the popularity of live football and basket- Comment millions online. The Premier League’s own ball in both regions. Conversely, a sponsor ePremier League tournament is due to go with a more universal approach may look E-sports appear to be here to stay; the e- ahead in 2021, where professional gamers towards organisations, tournaments and sports market is set to grow to be worth will initially compete online in the hope teams focused on the globe’s most popular more than $1.5 billion by 2023. With of reaching the finals broadcast live on Sky e-sports games, such as CS:GO, League of COVID-19 restrictions still in place in Sports, YouTube and Twitch later in the year. Legends and Dota 2. many countries, uncertainty remains in the Opportunities for Sponsors While past sponsors for e-sports have in- traditional sports sponsorship market. Spon- sors should explore whether the diversity in With e-sports continuing to adapt and cluded names synonymous with the industry selection that e-sports offers can help them thrive in the context of the pandemic and itself, more mainstream names have recently to achieve their brand objectives in an ever- receiving unprecedented mainstream media entered the e-sports market. For example, changing landscape. attention, an opportunity opens for sponsors Mercedes-Benz recently announced a part- to share the limelight. nership with leading e-sports company ESL, This article was originally edited by, and E-sports offers unrivalled flexibility and which includes Mercedes-Benz sponsoring first published on, www.internationallawof- choice for sponsors. Interested commercial ESL’s flagship events taking place across fice.com. partners can select the endorsements that are several global markets. McDonalds has also For further information on this topic the best fit for their own brand objectives. tied in with various organisations, most re- please contact Gill Dennis or Aumair Qa- Would-be sponsors can also choose whether cently with global organisation Gen.G and yum at Pinsent Masons by telephone (+44 to partner with organisations, tournaments, Czech organisation Entropiq, in relation to 20 7418 8250) or email (Gill.Dennis@ teams or individual players. They can target their respective events. US clothing brand pinsentmasons.com or Aumair.Qayum@ different regions and select the limits on Levi’s also recently partnered with NUEL, pinsentmasons.com). The Pinsent Masons their endorsements – from single events to the United Kingdom’s biggest university website can be accessed at www.pinsent- multi-year partnerships. e-sports organiser. Other household names masons.com. n

Online Gaming and Online Safety – Where Is the Law Heading?

By Cris Pikes, CEO and Co-founder registered users in Germany to remove within the EU’s internal market and have of Image Analyzer ‘manifestly unlawful’ content within 24 service users whose place of establishment or hours of receiving a complaint. residence is within the EU.” n the May issue of Esports and the Law, The EU Digital Services Act proposals, A “substantial connection” will be Jeffrey Neuburger and Frances P. Kelley, I published December 15th 2020, will bring deemed to exist where a service provider of Proskauer Rose law firm, reported on a many more organizations into scope to has a significant number of users in one case brought before a California district remove illegal content uploaded to their or more of the European Member States; court (Coffee v. Google LLC, No. 20- digital platforms. As an example, LEGO where it targets services towards residents 03901 (N.D. Cal. Feb. 10, 2021)), where recently announced its LEGO VIDIYO™ in one or more of the Member States, for Google LLC successfully argued that, un- example by using their language or cur- der Section 230 of the Communications service, a partnership with Universal rency; or where it has an establishment Decency Act, it could not be held liable Music that enables children to make and within the EU. for mobile game players’ in-app purchases. upload their own music videos. Under The court ruled that, even though the proposed legislation, LEGO will be Legal Representation in Google earns 30% of any in-app purchases legally responsible for moderating this Europe that are made within apps downloaded user-generated content to ensure that ad- Under the proposals, all service providers from the Google Play App Store, it was equate protections are provided to service must provide a publicly listed single point simply providing a platform. The court users who reside in Europe. of contact for direct communication with also stated that, under Section 230 of the As a provider of content moderation the European Commission and authorities Communications Decency Act “even if technology to multiple global organiza- in the Member States. a service provider knows that third parties tions that may find themselves in scope Online service providers that do not are using such tools to create illegal content, for the new legislation, Image Analyzer have a physical establishment in Europe the service provider’s failure to intervene is commissioned lawyers at Bird & Bird, must appoint a legal representative in the immunized.” who specialise in technology law, to write Member State where its services are used and Online games companies with signifi- two whitepapers that provide early insights provide that representative’s name, address, cant user bases in Europe and the United into the legal obligations proposed within and contact details to that Member State’s Kingdom face a very different regulatory the EU DSA and the draft UK Online Digital Services Co-Ordinator. environment. Safety Bill. The lawyers at Bird & Bird have Bird & Bird writes in the whitepaper: Impending legislation in the form of scrutinised the proposals and presented a “This legal representative can also function the European Union’s Digital Services digest of the requirements and penalties, as a point of contact. It is important to note Act and the UK Online Safety Bill will to aid organizations in gaining clarity on that this legal representative can be held place increased legal obligations on online their future obligations and potential legal liable for non-compliance with obligations platform operators to swiftly remove illegal exposure under the new legal regimes in under the DSA.” content. The draft UK Bill, published the EU and UK. Tiered Obligations May 12th 2021, goes further and requires Territorial Scope The EU DSA proposes a four-tiered ap- online service providers to remove illegal An important point to note is that the proach with organizations meeting incre- and ‘harmful’ online content, particularly proposed legislation will apply to all on- mental legal obligations according to the where this poses a risk to children. line service providers that have significant type and breadth of services they provide. The EU Digital Services Act numbers of users in Europe, regardless of Regardless of their tier, all organizations The EU Digital Services Act aims to create the service providers’ place of establish- will have to comply promptly with valid a safer online environment for EU citizens ment or residence. As Bird & Bird writes Take Down Orders relating to illegal con- by legally requiring online service provid- in the whitepaper, “The DSA has a broad tent on their platforms that are issued by ers to swiftly remove illegal content from extra-territorial scope irrespective of interme- a European Member State’s court. their platforms. diaries’ places of establishment or residence. The four tiers comprise: Germany’s Network Enforcement Act Based on a “substantial connection” test, Very Large Platform Operators (NEA) already requires Social Network the law will apply to intermediaries based whose services are actively used by 10% Providers that have more than 2 million outside of Europe that provide their services See ONLINE on Page 10

Esports Included in Flurry of States’ Sports Betting Bills

By David A Bujarski and Michael A. Ohio’s SB176, which has been approved by videogame events may also signal a growing Tomasulo , of Winston & Strawn LLP the Senate and referred to committee in the respect for esports as legitimate competitive House, includes “esports events” in its defini- ost states with recently passed sports events. As streaming platforms like Twitch tion of a “sporting event.” Texas’s HB2070, betting legislation include esports already allow informal non-monetary bet- M which is still in committee, also includes under the definition of “sporting event” or ting of “channel points” on the outcomes “electronics sports events” and “competitive “sports event.” Maryland’s HB940, Arizona’s of esports events, gamers and fans will video game events” in its legalization bill. likely jump on the opportunity to wager HB2772, Wyoming’s HB133, and Connect- Interestingly, Louisiana’s HB697, which has real money on video game competitions as icut’s HB6451 include “electronic sports,” been signed by Louisiana Governor John “e-sports,” or “video game competitions” Edwards, specifically excludes “electronic more states approve legislation. Gambling within their definition of a “sporting event.” sports” and “competitive video games” from on esports events will also provide a smaller Some of these bills require further negotia- its definition of “sports event.” Meanwhile, but steadier stream of tax revenue for states tions with tribal gaming commissions, and the competing state Senate bill, SB247, that include it in part of their sports betting then approval from the U.S. Department of includes “competitive video game or other bills, as esports events happen year-round the Interior before they can go into effect electronic sports event” in its purview. SB247 and often without a defined season. but will eventually open avenues for betting was passed by both chambers of Louisiana’s As more data becomes available, indus- on these kinds of competitions along with legislature and sent to the Governor for try observers and commentators will be traditional events like football and basketball. review. If signed into law, SB247 would watching to see how much revenue esports Because they are included and categorized likely expand the scope of the more restric- can provide in comparison to traditional as part of the broad definition of a “sporting tive House bill. The inclusion of esports in sporting events. n event,” gambling on esports events will be the Louisiana Senate bill shows the growing The original article can be found here: regulated and administered the same way as influence of the esports industry in the wider https://www.winston.com/en/the-play- traditional sports betting. sports entertainment sector. book/esports-included-in-recent-flurry- Other major states with bills introduced, As more states pass sports betting legal- of-states-sports-betting-legalization- but not yet passed, take a similar approach. ization bills, the inclusion of esports and bills.html

Ramirez v. Electronic Arts: What You Sign Is What You Get

Continued From Page 4

California Supreme Court opinion “that injunctive relief” was “clearly a matter The Court granted the motion to compel held that contracts that waive a party’s regarding the validity” of the arbitration arbitration and stayed “this action pending right to seek public injunctive relief are provision and that was “plainly delegated completion of the arbitration.” It required unenforceable” (Id. at 5). EA’s contract to the arbitrator” (Id.). the parties to provide the Court the status of limited the arbitrator to “award declara- “Dismissal of Plaintiff’s the arbitration within 60 days and “thereafter tory or injunctive relief only in favor of Claims” within 10 days of the conclusion of the arbi- the individual seeking relief” and barred EA also requested the Court to dismiss the tration.” If the case returns to the Court, EA Ramirez from “seeking public injunctive claims “upon a finding that they arbitrable.” “may re-notice its Motion to Dismiss” (Id). relief.” It also stated that if “this specific A Ninth Circuit opinion gave courts “the Conclusion subsection is found to be unenforceable, discretion to stay or dismiss claims subject then the entirety of this agreement to to a valid arbitration agreement.” The It is on to AAA arbitration for Ramirez and arbitrate shall be null and void” and con- arbitrator “must still determine” whether EA, and the critical question of whether the sequently, Ramirez asserted, the entire the arbitration provision was “enforceable arbitration agreement is enforceable. EA may arbitration provision “is invalidated” (Id.). against Ramirez’s claims.” The Court was also want to re-think its User Agreement To the Court, “whether the Arbitration “not certain” that the “claims will remain with its clause that could lead to the entire Provision is unenforceable because it in arbitration” so “outright dismissal is not arbitration agreement becoming “null and improperly limits the right to seek public appropriate” (Id.). void.” n

Esports Programs Move the Chains at FBS Schools

Authored by LEAD1 Association and sary for programs to support the training, tions to map the landscape for esports on Alex McNeil, Uni Esports Group scrimmages, and gameplay review sessions campus. The bigger players are recogniz- Important Note: LEAD1 does not take that are normally typical. ing that esports is here to stay.” sole responsibility for the information Even the most high-profile esports pro- Many of these institutions aren’t yet ready provided in this report as the content grams have felt the acute effects of budget to launch a program. But they’re conducting is created by the named contributing and student shortfalls. “Most program lead- due-diligence to understand how esports authors. ers are hurting,” said McNeil. “There have can be used to support student outcomes. n the last two years, the so-called rise of been layoffs, plans for gaming centers have “The questions we’re answering are both Icollegiate esports programs has been a been put on hold, and first-year students pragmatic and mission-driven. Not just, hot topic among higher ed leaders. Esports are struggling to make connections. Almost ‘How much will this cost?’ or ‘What about (a genre of competitive video games) are a everyone is holding their breath right now.” Title IX,NIL, and the NCAA?’ But also, new entrant to the roster of many athletic Collegiate Esports ‘How do we make a program that embodies departments across the country, with some Infrastructure Continues to our commitment to inclusion?’ and ‘How programs providing scholarships to varsity Develop do we balance gaming and learning?’” recruits. Even given the complications, there have Leaders Should Plan for The rationale for developing these pro- been notable developments in the inter-col- Tomorrow grams is clear. Large pools of tomorrow’s legiate infrastructure amid COVID-19.The college-aged population play video games. This deep planning is where McNeil rec- National Junior College Athletic Association ommends larger institutions spend their (According to Pew Research, “fully 97%” of (NJCAA) launched an esports division that time and resources—for now. The lack of them do.) Seeking creative solutions to enroll has engaged over 60 member institutions NCAA governance is concerning for many, and retain students, leaders have turned to in the first two seasons of competition. For and questions about Title IX compliance esports programs as a new, exciting, and four-year programs, the Eastern Collegiate potentially remote student offering. pose definite challenges. But that shouldn’t Athletic Association (ECAC) has led the But how has COVID-19 affected the prevent leaders from formulating the institu- charge. A national championship sponsored development of the esports landscape at tion’s stance vis-a-vis esports. by Collegiate Sports Management Group US schools? In this brief report, Alex Mc- “Now is the time to begin addressing (CSMG) is taking place this week. Neil, co-founder of Uni Esports Group, questions internally and to start the planning As the number of collegiate institu- a higher education consulting firm that process. If you can build the institutional tions participating in esports grows, larger helps plan and launch high-impact esports players are making their presence known. plan today, tomorrow’s rollout is going to programs, shares his views on the topic. And new institutions are planning their be that much smoother. These questions COVID-19 has Tempered entrance. [about the NCAA, NIL, and Title IX] will Esports Growth More than 12 FBS programs administer be clarified sooner or later. Institutions While COVID-19 has created a major “varsity” esports programs, including Miami should be ready for when that day comes.” setback for most units across the university Ohio, Utah, and Boise State. Some recent As millions of vaccines are deployed organism, a common assumption is that programs, like the one at the University of across the county, the haze of COVID-19 esports programs have actually benefited Kentucky, have announced partnerships has begun to dissipate. Signs point to the over the same span. This narrative has with professional esports organizations and reversal of collegiate esports’ slow-down. proven true, but only to an extent. Esports other community partners. Michigan re- Competition is heating back up, new schools programs have remained effective remote cently made headlines when it announced are tapping in, and an entirely different clan engagement tools throughout the COVID an alumni donation of $4mm to fund the of students are discovering the benefits of crisis. Across the board, the rate of program development of its esports program. organized inter-collegiate competition. adoption has accelerated. “We’ve seen an uptick in the number “I think the next 12 months will see the However, the day-to-day operations of of DI institutions seeking help to create a largest growth in new programs so far,” Mc- most programs have been disrupted. Remote strategic plan for esports,” said McNeil. Neil said. “A new world of college esports is “esports athletes” often lack access to the “We’re collaborating with leaders at several waiting at the end of the pandemic. About resources and communication tools neces- FBS programs and at larger state organiza- that, I have no doubt.” n

Online Gaming and Online Safety – Where Is the Law Heading?

Continued From Page 7 of the European population will have the viders to include within their user Terms in the preceding financial year. As a final highest level of legal obligation and will and Conditions clear information on resort, services can be suspended in affected risk the maximum fines and penalties for how illegal content will be moderated. European Member States. non-compliance. The major social media Terms and Conditions must provide clear Bird & Bird writes, “In cases where there platforms will be included in this tier. information on policies and procedures is an urgency due to the risk of serious damage Online Platforms which provide host- and disclose the use of any tools including for the recipients of a service, the Commission ing services that store and disseminate algorithmic decision-making, automated may order interim measures. Digital Service content to the public at users’ request. and human content moderation. Online Coordinators can also order the cessation of Bird & Bird cites online marketplaces, platforms will also be required to report an infringement and impose proportionate app stores and content-sharing platforms on the accuracy of automated content remedies to bring the infringement to an as examples. moderation and the safeguards applied effective end.” Hosting Services providers, such as to the use of the technology. When will EU DSA become cloud or web hosting services will be re- All service providers must provide an- law? quired to enable third parties to notify the nual EU DSA reports that show which Bird & Bird writes in the whitepaper that presence of alleged illegal content on their actions they have taken in response to a final consensus must be reached by the systems. Where a hosting service provider authorities of Member States; the number European Council representatives and the removes access to information provided of orders received, and the categories of European Parliament on the proposed by a service recipient, the hosting service illegal content removed from their plat- Digital Services Act before it is formally provider will be legally obliged to provide forms; as well as providing details of any adopted by EU Member States. As a result, the service recipient with a statement of content moderation undertaken of their it is not likely to pass into law before 2023, reasons (Article 15). own volition. Intermediary Services which act as a which allows organizations time to make conduit for online information or pro- Trusted Flaggers the necessary preparations to comply. vide a limited hosting or caching service The EU DSA proposals include a facil- UK Online Safety Bill ity for law enforcement agencies, non- for the transmission of information will On May 12th 2021, the UK government governmental agencies, and other entities face the lowest level of obligations under published its draft Online Safety Bill which to become “Trusted Flaggers” that can the EU Digital Services Act. Bird & Bird will place a legal obligation on online alert online platforms to illegal content cites internet service providers, network platform operators and internet search hosted therein. Bird & Bird writes, “To infrastructure providers and domain name services to swiftly remove illegal content, become a trusted flagger, an entity will need registrars as examples of organizations which is defined as, “(i) terrorism content, to demonstrate: (a) it has the expertise and that will fall into this tier. The obligations (ii) CSEA content, (iii) priority illegal competence required to detect, identify and follow the existing intermediary liability content, and (iv) other illegal content, tak- notify of illegal content; (b) it represents regime. Intermediary Services’ obligations ing into account (in particular) algorithms collective interests and is independent of any described in Chapter 11 of the draft Digital used by the service, and how easily, quickly Online Platform; and (c) it carries out its Services Act, re-state the core principles of and widely content may be disseminated by activities for the purpose of submitting notices the e-Commerce Directive, which includes means of the service” [Draft Online Safety in a timely, diligent and objective manner. liability exemptions and prohibits Member Bill Section 7, pg 16]. Online Platforms will be required to ensure States from obliging intermediaries to Distinct from the EU DSA proposals, that reports submitted by trusted flaggers are introduce “general monitoring” of infor- the UK Online Safety Bill will also legally treated with priority and are decided upon mation they store or transmit. However, oblige online service providers to remove without delay Article 6 of the proposals provides a “Safe .” content that is not illegal, but which poses a Harbor” to remove legal liability for In- Penalties and Sanctions risk of harm to service users and the wider termediary Services that take the initiative Under the proposals, the European Com- public, particularly children. to remove illegal content. mission will be empowered to impose This latter requirement has received Content Moderation penalties for non-compliance of up to criticism that the ‘harms’ are insufficiently The EU DSA will require all service pro- 6% of an organization’s global turnover See ONLINE on Page 11

Online Gaming and Online Safety – Where Is the Law Heading?

Continued From Page 10 defined in the draft Bill. and online marketplaces.” to 10 percent of their global turnover or The UK Parliament Commons Library Tiered Obligations having access to their services blocked Briefing Paper, Regulating Online Harms in the UK. In a move that takes penal- The aim of the Bill is to legally oblige offers some clarification by stating content ties farther than the EU DSA proposals, online service providers to help combat will be deemed to be harmful “If a service the draft Bill also suggests that company online harms by putting systems in place provider has “reasonable grounds to believe executives could be held personally liable to risk assess, identify, and remove illegal that there is a material risk” of the dissemi- for online harms created by their services. and harmful content. The obligations nation of the content “having a significant placed on providers will be risk-based and Conclusion adverse physical or psychological impact” on proportionate to the reach of the service. While the proposed EU and UK legisla- a child or adult of “ordinary sensibilities” As with the EU DSA, the UK govern- tion may appear Draconian, there are [page 26].” ment’s draft Online Safety Bill includes many business benefits to be gained from In the context of the Coffee vs. Google proposals to categorize organizations based creating a safer online environment for LLC case, this is important because Google on the number of people using their online service users, particularly where an online argued that it was neither the creator of platforms. game is designed to be used by children. the video games, nor the Loot Boxes which ‘Category 1’ organizations will include Failure to tackle harmful content risks were purchased within the mobile apps the largest social media sites which will making an online community toxic and hosted on the Google Play App Store, it have greater obligations to moderate driving users off the platform. Responsible was merely acting as the passive host of content uploaded by users. content moderation, in compliance with the app platform and played no role in ‘Category 2’ companies are likely the proposed EU DSA and UK Online what people decide to buy within the apps. to include any interactive community Safety Bill, will help organizations to Under the Online Safety Bill, Loot platform that promotes the sharing of maintain a positive online user experience Boxes could be deemed to pose a risk of user-generated content, such as online and reduce legal exposure while protecting online harm and indeed, within its guid- gaming, dating, online travel agencies, brand integrity and revenues. The EU DSA ance on the risks within online games, the private messaging, and retail sites. proposals lead with this aim when they UK’s National Society for the Prevention With regard to the content modera- state that the legal obligation to remove of Cruelty against Children (NSPCC) cites tion obligations faced by smaller online illegal content will provide digital service that the risks to minors using online games organizations that serve UK citizens, Bird providers with “legal certainty, harmonisa- include “grooming, cyber bullying, trolling, & Bird writes, “The government has already tion of rules”, and make it, “Easier to start-up griefing, scams and in-game purchases.” called out terrorist content and child sexual and scale-up in Europe,” while providing Territorial Scope abuse and exploitation content as illegal, business users with, “a level playing field Similar to the EU DSA proposals, an and in-scope services are expected to take against providers of illegal content.” n particularly stringent measures to address online service provider will be in scope to References comply with the UK Online Safety Bill if these, and further “priority illegal content” the service is targeted towards and used by will be identified by the government in sec- eSports and the Law, May 12th 2021, https:// esportsandthelaw.com/2021/05/12/ mobile- a significant number of people in the UK, ondary legislation. For smaller companies app-platform-entitled-to-cda-immunity-over- or if the content presented on the service with limited resources, these categories of state-law-claims-related-to-in-app-purchases- carries a “material risk of significant harm” harm should be tackled as an absolute bare of-loot-boxes/ to UK citizens. minimum.” Jeffrey Neuburger, partner at Proskauer https:// Bird & Bird writes in the whitepaper, Penalties and Sanctions newmedialaw.proskauer.com/author/jneu- “Examples of services likely to be in scope burger/ The draft Bill published in May confirms include, but are not limited to social media European Commission, The Digital Services that the UK Office of Communications services, consumer cloud storage sites, video Act: ensuring a safe and accountable online en- (Ofcom) will be appointed as the authority vironment https://ec.europa.eu/info/strategy/ sharing platforms, online forums, dating with the power to enforce the new law. priorities-2019-2024/europe-fit-digital-age/ services, online instant messaging services, Failure to adequately moderate content digital-services-act-ensuring-safe-and-account- peer-to-peer services, video games which could result in companies being fined up enable interaction with other users online, See ONLINE on Page 12

WWE Wrestler Loses Bout with Video Game Company in Copyright Trial

Continued From Page 1 style male character with dreadlocks. Yet, District of Texas disagreed, stating that copyright despite certain similarities between Prophet was first introduced to the gaming copyright owners have a right to jury trial the two characters. After the announce- series in Call of Duty: Black Ops III as a irrespective of the type of relief requested. The ment of the verdict, counsel for Activision specialist fighter that replaced 90% of his case was then set for June 2021 before a jury. emphasized Activision’s belief in integrity body with robotic technology to improve his At trial, Activision maintained that it throughout the creative process and stated fighting ability. However, Activision released independently created the Prophet character. that the company was “pleased with out- Black Ops 4 as a prequel to Black Ops III. It argued that it did not copy the G.I. Bro come” of the case. Therefore, the newer game depicts Prophet image, nor create an image substantially While the jury ultimately sided with Ac- before his robotic upgrades. The similarities similar to G.I. Bro—two elements Booker tivision, it is not the only celebrity to go after between the prequel version of Prophet and T. was required to prove to successfully claim game publishers and their alleged ‘copyright’ G.I. Bro prompted Booker T.’s legal team to copyright infringement. Further, Activision infringement actions. Philadelphia Eagles argue that Activision ripped-off G.I. Bro in argued Booker T. did not provide sufficient football player Lenwood Hamilton sued designing this iteration of Prophet. evidence to support the claim for copyright the Gears of War creators over claims that Activision denied the infringement claims infringement. In Activision’s motion for Cole Train was based on him. Selena Gomez and tried to avoid Booker T.’s request for a judgment as a matter of law, Activision al- launched a $10 million lawsuit against a jury trial altogether. Activision argued that leged that it never had access to the G.I. Bro mobile game for using her likeness. And Booker T. did not have a right to a jury trial drawings, and that the G.I. Bro drawings Lindsay Lohan tried to sue Take-Two Inter- because he was only after profits from the were not copyrightable because they were active in 2014 for copyright infringement. sale of the video game. Due to this request simply a generic copy of a muscular male No matter the case, more of these matters for equitable relief, Activision claimed this figure from the face down. will continue to flow in as games grow in case should only be tried before a judge. The Ultimately, the jurors were not convinced popularity and our personal brands take on United States District Court for the Eastern that Activision infringed upon Booker T.’s a life of their own. n

Online Gaming and Online Safety – Where Is the Law Heading?

Continued From Page 11 able-online-environment_en ing Online Harms’, May 28th 2021 https:// Bird & Bird whitepaper–EU Proposal for a Draft UK Online Safety Bill https://assets. commonslibrary.parliament.uk/research-brief- Digital Services Act – Are You in Scope? publishing.service.gov.uk/government/uploads/ ings/cbp-8743/ system/uploads/attachment_data/file/985033/ NSPCC, ‘Keeping children safe, online safety, Bird & Bird whitepaper – The UK’s proposed Draft_Online_Safety_Bill_Bookmarked.pdf online games’ https://www.nspcc.org.uk/ Research Briefings, UK Parliament, Commons keeping-children-safe/online-safety/online- Online Safety Bill – Are You in Scope? Library, ‘UK Briefing Paper, Regulating Online games/ Both whitepapers are available for download at Harms’, Page 26, https://researchbriefings.files. Childline, ‘Information and advice on online parliament.uk/documents/CBP-8743/CBP- mobile safety and online gaming’ https://www. www.image-analyzer.com. 8743.pdf childline.org.uk/info-advice/bullying-abuse- UK Parliament, Commons Library, ‘Regulat- safety/online-mobile-safety/online-gaming/