Is there a need for unionization in esports?

Posted in eSports Employment, labor and pensions Regulations

With thanks to vacation scheme student Craig Langsdale for his assistance in preparing this blog post.

Author: Dan Harman

Introduction

Trade unions have existed in traditional sports for many years (the UK’s Professional Footballer’s Association has been operating for more than a hundred!), and can represent hundreds if not thousands of professional athletes in a multitude of sports. With esports becoming more established, and millions of dollars being made by leagues through competition at a national and international level, is it time that the players look back to the late 19th century, take inspiration from their peers in traditional sports, and unionize? What could such organisation achieve in such a fledgling industry (one where many participants have not yet reached the age of 18), and what would be its raison d'être? In this article, we look at existing problems that may drive players towards a union, and the possible impacts of unionization in the esports sphere.

Exploitative contracts

“Professional gamer” is a job title that many young people would describe as a dream career. As the rapid expansion of the esports industry is demonstrating, it is now, more than ever, possible to make this dream a reality. As an industry still in its relative infancy, esports may find itself more susceptible to player exploitation, due to the younger demographic of some of its players. As many who sign these contracts are under the age of eighteen, legal representation is often not obtained and the individual will simply sign whatever is put in front of them due to a combination of social pressure and a fear of missing what they view as the opportunity of a lifetime. Such contracts can be heavily one-sided in favour of the organisation, allowing them to make arbitrary deductions from player salaries or insert unreasonable non-compete clauses that force players to stay or risk losing their careers.

Contrast such contracts with an example from a unionized industry. David Price is an American professional baseball pitcher for the Boston Red Sox. He missed the start of the 2018 season after being diagnosed with carpal tunnel syndrome. However, he remained entitled to collect his seven-year, US$217m contract. This was because he is a member of the Major League Baseball Players’ Association. This labor union participates in collective bargaining with the league, negotiating contracts and ensuring the enforcement of those contracts. Esports players lack this strong union support, and are currently unable to benefit from their careers in the same way that other athletes do. As a result of these short-term, insecure contracts, esports careers can be notoriously short-lived. Minor injuries can be career-ending; for example when Hai ‘Hai’ Lam, one of the most accomplished North American League of Legends mid-laners, suffered a strain-related wrist injury he was forced into early retirement. While his compensation package was not revealed it is highly unlikely that he was given anything close to what David Price received.

Tfue’s contract

An exploitative contract that has recently come to light is Turner “Tfue” Tenney’s contract with FaZe Clan. As per his ‘Gamer Agreement’, after the first six months the contract was automatically extended for three years, locking Tfue in for three and a half years. Tfue has recently brought a claim against FaZe Clan over what he describes as a “grossly oppressive, onerous and one-sided” contract, with the main issues revolving around the sharing of income. For example, one clause reportedly stipulated that FaZe Clan would receive 80 percent of the income from any sponsored videos involving Tfue, whereas other clauses imposed restrictions that prevented Tfue from pursuing any sponsorship deal that hadn’t received approval from FaZe Clan. The contract also reportedly contained a very specific early termination clause allowing FaZe Clan 15 business days to match any offer received by Tfue from a rival organisation, and retain him if they do so, regardless of Tfue’s wishes to the contrary. The lack of unions and regulation in this space means clauses like this can be common, with no guidance as to what is and is not acceptable being available to players.

What could a union achieve?

Labour unions in sports are typically born out of unfair working conditions and inadequate wages. In 1967, the year the National Hockey League Players Association was founded, players’ salaries ranged from US$10,000 to US$15,000, with no pension or healthcare plans. In comparison, the average wage of a National Hockey League player in 2011 was US$2.4m, and the minimum wage was US$500,000. There are some concerns however, that unlike traditional sporting unions, esports face unique barriers to unionization that aren’t seen in their traditional counterparts. For example, videogames may have a limited lifespan, losing popularity as time goes on until they are eventually replaced by a new up-and-coming title. By the time a union is organised, the game upon which it is based could have faded into obscurity. Further, esports leagues such as the Overwatch League and the League of Legends Championship Series span multiple jurisdictions with varying labor laws and attitudes towards labor unions, increasing the complexity of starting such a union. Finally, the documentation for large franchise tournaments do not envisage a labor union, it is a closed system that would require significant amendments to accommodate such a union, increasing the inertia of the esports community as a whole.

The intent of such unions would be to create fairer working conditions for the players in esports, however this is dependent upon a concerted effort from the players themselves. It remains to be seen whether the time is right for such an approach, but as esports (and its players) mature and more stories like Tfue’s start becoming commonplace, there are likely to be ever greater pushes for organisation and regulation across the industry.

For more information on the above, please contact Alex Wills.

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