Kicking It New School: Applying the Fifa Regulatory Model to the Esports Industry
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41803-jle_51-3 Sheet No. 63 Side A 11/07/2019 11:26:51 \\jciprod01\productn\J\JLE\51-3\JLE304.txt unknown Seq: 1 7-NOV-19 10:17 NOTE KICKING IT NEW SCHOOL: APPLYING THE FIFA REGULATORY MODEL TO THE ESPORTS INDUSTRY JAMES A. INGRAM* ABSTRACT Over the past decade, video gaming has transformed from a teenage hobby into a near-billion-dollar “eSports” industry. “ESports”—profes- sional, competitive video gaming—has grown rapidly in popularity dur- ing this time, and shows no signs of slowing down anytime soon. Many of today’s eSports companies are multi-billion dollar, publicly traded businesses. Professional organizations, which support specialized eSports teams, are becoming household names. And professional players are, by many accounts, the rock stars of a new generation. Despite the indus- try’s recent success, however, eSports continues to operate as its own Wild West, lacking uniform standards and regulations. This Note explores the problems that this has created for professional eSports players and proposes the establishment of an international regulatory body based loosely on the model used by FIFA, soccer’s worldwide governing organization. TABLE OF CONTENTS I. Introduction ......................................... 484 R II. Background .......................................... 488 R A. The ESports Industry ............................. 488 R 41803-jle_51-3 Sheet No. 63 Side A 11/07/2019 11:26:51 1. ESports by the Numbers ..................... 488 R 2. Key Stakeholders ............................. 489 R a. ESports Companies ...................... 489 R b. Professional Organizations . .............. 491 R i. Raising Revenue ..................... 492 R ii. Player Support ....................... 494 R c. Professional Players ...................... 495 R 3. ESports Tournaments ........................ 497 R 4. The WESA ................................... 499 R 5. Problems Facing Professional Players . ........ 500 R a. Lack of Transparency .................... 500 R * J.D. 2019, The George Washington University Law School; B.A. 2015 State Univer- sity of New York at Buffalo. 483 41803-jle_51-3 Sheet No. 63 Side B 11/07/2019 11:26:51 \\jciprod01\productn\J\JLE\51-3\JLE304.txt unknown Seq: 2 7-NOV-19 10:17 484 The Geo. Wash. Int’l L. Rev. [Vol. 51 b. Lack of Standardization . ............... 501 R i. Doping Regulations . ............... 502 R ii. Appeals .............................. 505 R c. Lack of Representation................... 506 R B. FIFA.............................................. 507 R 1. Corruption and Subsequent Reforms. ........ 508 R 2. Organizational Structure ..................... 509 R a. Member Associations ..................... 510 R b. Congress ................................. 510 R c. Council .................................. 511 R d. General Secretariat ....................... 511 R e. Judicial Bodies ........................... 511 R 3. Transparency ................................. 512 R 4. Standardization .............................. 513 R a. Anti-Doping Regulations ................. 513 R b. Disciplinary Appeals ...................... 515 R 5. Player Representation ........................ 516 R III. Analysis .............................................. 516 R A. An ESports Regulatory Body......................... 517 R 1. Organizational Structure ..................... 517 R 2. Powers ....................................... 518 R 3. Applications to Doping and Disciplinary Appeals ...................................... 518 R 4. Increasing Transparency Through Salary Disclosures or Minimums .................... 519 R B. Incentives to Join ................................ 520 R C. Defending the FIFA Model ....................... 521 R 41803-jle_51-3 Sheet No. 63 Side B 11/07/2019 11:26:51 1. Why Not WESA? ............................. 521 R 2. The FIFA Model Works ...................... 521 R IV. Conclusion ........................................... 522 R I. INTRODUCTION Amer Barqawi was twelve years old when he first set foot inside of a video gaming “net cafe”´ near his home in Jordan.1 His older brothers were frequent visitors to the cafe´ and Barqawi was curious to see what all of the excitement was about.2 Barqawi’s brothers were less than thrilled about the prospect of Barqawi tagging alongside them, but they were given no other choice after their 1. eSports Stories, The Story of Miracle — Amer Al-Barkawi — Team Liquid — Dota 2 — Biography — Profile, YOUTUBE (Apr. 9, 2017), https://www.youtube.com/watch?v=dghnyyj R7uM [https://perma.cc/2PT5-6ATE]. 2. Id. 41803-jle_51-3 Sheet No. 64 Side A 11/07/2019 11:26:51 \\jciprod01\productn\J\JLE\51-3\JLE304.txt unknown Seq: 3 7-NOV-19 10:17 2019] Kicking It New School 485 mother granted him permission to attend.3 At the cafe,´ Barqawi’s brothers introduced Barqawi to the video game “Dota 2” and he was immediately hooked.4 Unbeknownst to him at the time, in just eight years, playing Dota 2 would earn Barqawi more money than most make in a lifetime.5 On August 13, 2017, then-twenty-year-old Barqawi and his team- mates were crowned the winners of the renowned eSport tourna- ment “The International” in front of thousands of fans in Seattle’s sold-out KeyArena.6 The International, which is organized for the world’s top Dota 2 players, boasted almost eleven million concur- rent viewers7 and featured a prize pool of nearly $25 million.8 As first place winners, Team Liquid took home a total of $10,862,683.9 Barqawi’s cut of the prize? $2,172,536.10 For many, the story of Amer Barqawi reads like a chapter from a young adult fiction novel. A twenty-year-old winning millions of dollars playing video games? Yeah, right. But Barqawi’s story is far from fic- tion. In fact, Barqawi, and many like him, are pioneers in a twenty- first century Wild West: the rapidly growing industry of “eSports.” The origin of eSports, i.e., “multiplayer video game[s] played competitively for spectators, typically by professional gamers,”11 lies in South Korea, where competitive “Starcraft” tournaments first emerged during the 1990s financial crisis.12 Since that time, 3. Id. 4. Id. 5. Compare Amer “Miracle” Barqawi - Dota 2 Player, E-SPORTS EARNINGS, https://www. esportsearnings.com/players/14671-miracle-amer-barqawi (estimating that Barqawi has earned $3,671,337 from 44 tournaments) [https://perma.cc/88V3-QS2E], with Michael F. 41803-jle_51-3 Sheet No. 64 Side A 11/07/2019 11:26:51 Thompson, Earnings of a Lifetime: Comparing Women and Men with College and Graduate Degrees, INCONTEXT (Mar. 2009), http://www.incontext.indiana.edu/2009/mar-apr/article 1.asp (showing an average lifetime income of $1.8 million for individuals possessing a bachelor’s degree in the United States) [https://perma.cc/C4LK-U5PV]. 6. Marissa Payne, These Five Gamers Just Won $11 Million Playing ‘Dota 2’, WASH. POST (Aug. 12, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/08/12/ these-five-gamers-just-won-11-million-playing-dota-2/?utm_term=.01eea11c09ec [https:// perma.cc/23N7-B88S]. 7. The International 2017, ESPORTS CHARTS, https://esc.watch/tournaments/dota2/ international-2017 [https://perma.cc/GB7N-9Z4G] (last visited Feb. 27, 2019). 8. The International: Dota2 Championships, DOTA 2, http://www.dota2.com/interna tional/overview/ [https://perma.cc/BCC5-ZJG5]. 9. Id. 10. See Amer “Miracle” Barqawi - Dota 2 Player, supra note 5. R 11. e-sport, OXFORD LIVING DICTIONARIES, https://en.oxforddictionaries.com/defini- tion/us/e-sport [https://perma.cc/XF76-53D9]. Used herein, “eSports” refers only to professional level competition, not the casual gameplay that many individuals enjoy as a hobby. 12. John T. Holden et al., Esports Corruption: Gambling, Doping, and Global Governance, 32 MD. J. INT’L L. 236, 238 (2017). 41803-jle_51-3 Sheet No. 64 Side B 11/07/2019 11:26:51 \\jciprod01\productn\J\JLE\51-3\JLE304.txt unknown Seq: 4 7-NOV-19 10:17 486 The Geo. Wash. Int’l L. Rev. [Vol. 51 eSports has exploded in popularity throughout the world,13 natu- rally leading to the generation of impressive revenues along the way. Today, eSports is on the verge of becoming a billion-dollar global industry.14 The eSports industry is both vast and complex, but essentially consists of three main stakeholder groups: (i) eSports companies, which own intellectual property rights to video game franchises;15 (ii) professional organizations, which support specialized teams of professional players;16 and (iii) professional players, like Barqawi, who are obtaining widespread notoriety and wealth as eSports con- tinues to grow in popularity.17 Despite the industry’s recent success and rapid growth, eSports remains largely unregulated and somewhat disorganized.18 While this creates challenges for all of the industry’s stakeholders, profes- sional players are arguably impacted most. They face three broad categories of problems persisting in the eSports industry. First, a lack of transparency makes it difficult for players to nego- tiate the terms of their contracts with prospective professional organizations.19 This is particularly true for newer and younger players who are more vulnerable to exploitation.20 Second, a lack of standardization results in different players being subjected to different rules.21 These discrepancies are especially concerning with regard to doping and disciplinary proceedings.22 Lastly, a lack 13. See, e.g., In Total: 66 Events & $9,009,900 Prize Money So Far, INTEL EXTREME MAS- TERS, http://en.intelextrememasters.com/legacy/ (providing an overview of past tourna- ment locations) [https://perma.cc/MS24-LJLR].