ESports Disputes: Choosing your battleground

This is stating the obvious to most action-RPG players. Esports is rapidly accelerating towards being a billion-dollar-per-year industry, yet it is unclear whether its major stakeholders have given as much thought to their choice of battleground for legal skirmishes. 

Unlike in traditional sports, where the Court of Arbitration for Sport (CAS) provides the ultimate forum for many clashes, esports is a developing industry and as yet no overarching body has established itself for this purpose. There are also questions as to whether any such forum would be suited to the broad variety of disputes that might arise. 

This has led to a somewhat confused terrain for those looking to do battle: publishers and tournament organisers vie for decision-making power on issues such as doping and match-fixing. Elsewhere, software cheating cases are dressed up as copyright infringement as publishers seek to protect their product in national courts.

From traditional litigation in the national courts, to arbitration under the auspices of one of the fledgling esports arbitral bodies, below is a brief outline of the factors that parties should consider when choosing their legal arena.

Where possible, this is an issue best considered when entering contracts: don't leave it until swords have already been drawn.

Choice of arena: factors to consider

• Contractual requirements: has the choice of forum already been made under the terms of a contract? Is there anything in the publisher's or the tournament organiser's rules that stipulates a particular dispute resolution process?
• Time and cost: what is the value of the dispute? Does it require urgent resolution? 
• Geographical considerations: is the dispute clearly rooted in one country or is there a more complicated cross-border aspect to it? Will the award be enforceable in the right jurisdictions?
• Commercial complexity: does the commercial background of the dispute allow a narrow perspective? Or is there a wider point at issue?
• Technical issues: what sort of expertise might be required of those sitting in judgment?

Choice of arena: options

1. Litigation

If enforceability is a deciding factor, and if the dispute is clearly rooted in one jurisdiction (whether by contract or by practical factors) traditional litigation through the relevant national courts remains a viable option.

However, esports is an online-first, digital entertainment industry, and is by its very nature international: the vast majority of disputes are likely to have an international aspect that requires a broader, more flexible legal approach. Wrangles over "lex fori" and "forum non-conveniens" can add an unwelcome layer of complexity and expense if jurisdiction is not clear from the outset.

Where issues of cheating and eligibility require urgent resolution, this might be hard to achieve in some local courts.

2. Commercial Arbitration

Arbitration under the rules of one of the recognised international arbitral bodies (for example, the LCIA, the ICC or the SIAC) appears to lend itself well to the esports model. The procedural approach is more flexible than litigation: as a result this is already the choice of forum for many international commercial disputes, including many sponsorship and licensing disputes in the world of traditional sports.

Enforceability is rarely a problem thanks to the New York Convention. The parties usually have a hand in picking members of the tribunal, so gaming or other technical expertise can be sought out if required. Accelerated procedures are available under some arbitral bodies, which could potentially be adapted to suit the urgency of cheating or tournament eligibility cases.

On the other hand, whilst it can be quicker and cheaper than a national court system, the time and cost might still be off-putting for many of the players, teams or young start-ups trying to make their way in this new industry. A recent report by the LCIA revealed that, under its own procedure, the average dispute costs $97,000 and takes 16 months from initiation to grant of the award.

3.The Court of Arbitration for Sport (CAS)

Some have suggested that the CAS is the natural forum for resolving esports disputes. After all, the commercial and legal world of esports is in many ways analogous to that of traditional sports: the key stakeholders are similar (event organisers, players, fans, sponsors) and many of the ethical and legal concerns, from chemical doping to cheating and match-fixing, are shared between the two. Indeed, some insiders, including Alex Lim of the International E-Sports Federation, are lobbying for esports to be recognised as a sport in its own right (though others are keen to distance esports from traditional sport wherever possible). 

The CAS tribunals are of course comfortable dealing with a variety of rulebooks and regulations from sports governing bodies. The principles for just and fair interpretation of FIFA's rules for tournament participation in the football World Cup should not necessarily differ greatly from the interpretation of ESL's rules on gameplay. 

The Ad Hoc Division of the CAS allows for extremely quick resolution of cases where this is required: for example, decisions about player eligibility for an upcoming tournament.

However, there are several current issues with this arena when it comes to esports: firstly, CAS currently doesn't have any gaming specialists on its list of arbitrators, so technical expertise might be found lacking; secondly, no major stakeholders in esports (publishers or organisers) have yet subscribed to the concept of CAS as a decision-making body; thirdly, and perhaps most importantly, the CAS has yet to recognise esports as a sport under its remit, let alone to arbitrate on any related disputes.

4. Esport-specific arbitral bodies and decision makers

The World Esports Association (WESA) launched the Arbitration Court for Esports in November 2016. This is currently backed by ESL (one of the foremost esports tournament organisers), along with several of the major publishers.

The outward aim appears to be to create an umbrella arbitration court: a CAS for esports. In its infancy, it has not built up any body of decisions from which its judicial reliability can be fairly judged. Other tournament organisers and publishers might also be uncomfortable with competitors backing it.

An alternative is the Esport Integrity Coalition (ESIC), which was established in September 2015 and sets out to provide an arena for handling disciplinary, corruption and doping issues in esports. It has gained legitimacy, including through a partnership with the UK Gambling Commission, and works as an investigatory and disciplinary body for tournament organisers including ESL and World Cyber Arena (WCA).

ESIC is steadily building up a body of cases on technical cheating and may be on the way to establishing itself as the go-to forum for such disputes. ESIC is an opt-in decision-maker, meaning its decisions are only enforceable amongst its members. It is uncertain whether ESIC has aims to broaden its reach to handle more commercial matters.

While such uncertainty remains across the board, and before a model esport dispute resolution forum emerges, parties on the verge of dispute would do well to consider their choice of battleground very carefully.