Harbottle & Lewis associate Kostyantyn Lobov details the issues facing various areas of the industry as allegations of doping run rampant in the eSports space.
Year after year, the march of eSports towards mainstream acceptance continues to gather momentum. However, with prize pools often now stretching into the millions and tournaments becoming increasingly competitive, the pressure on players and teams to continually perform at the highest level is the greatest it has ever been.
Those who have witnessed eSports played at a professional level will know that matches can be won or lost in fractions of a second. Reaction times and concentration are key, as is training - several hours of it each day. Worryingly, it seems that an increasing number of professional eSports players are turning to performance enhancing drugs to help improve their cognition and reaction time or ability to manage the stresses of live competition and that doping may now be rife on the professional eSports circuit.
Doping is an extremely emotive subject which, aside from the ethical and physiological concerns it raises, can give rise to a number of potentially serious legal and commercial considerations for players, teams, leagues and the industry as a whole.
The most obvious consequence for any player who is doping is that, by taking a performance enhancing substance, the player could be committing a criminal offence if that substance is unlawful in the relevant jurisdiction. However, given that the most commonly used performance enhancing drugs in eSports appear to be prescription medications, such as Adderall and Ritalin, perhaps the more likely consequences are the sanctions that the player could face from their team, the league in which they compete and their sponsors.
For instance, depending on the terms, doping could amount to a breach of the player’s player contract with their team, giving rise to internal disciplinary action or even dismissal.
It should, and increasingly will, also amount to a breach of the relevant league’s rules, which could result in the player’s and/or their team’s disqualification or suspension from the league or its events. Being without a team or unable to compete in a league professionally could have disastrous financial implications for the player.
The player’s actions could also impact on their contractual relationships with sponsors. Individual sponsorship agreements between a player and a sponsor will typically contain a clause requiring the player not to engage in any conduct which could bring the sponsor into disrepute (known as a ‘morality clause’). Doping could fall within the scope of such a clause and give rise to the sponsor’s right to terminate the sponsorship agreement or enable the sponsor to renegotiate a significantly less favourable deal for the player. Recent events in the world of cycling serve as a reminder of how quickly sponsors will act to distance themselves from an athlete who is caught doping.
Team and Industry Issues
In addition to the impact that doping can have on the individual players engaged in the practice, the player’s actions could also affect the contractual relationship between their team and its sponsors. Team sponsorship agreements, like player contracts, are likely to contain a morality clause which could be triggered by the actions of one of the team’s players given the small size of most teams and the fact that the actions of one player are likely to reflect on the reputation of the team and its sponsors. `
Finally, if eSports becomes synonymous with the use of performance enhancing drugs, major corporate sponsors will be reluctant to get involved, which could slow the industry’s rate of growth and its ability to achieve mainstream acceptance.
Addressing the Issue
So what can and should be done about it? Whilst this is not a problem which will be solved overnight, there are a few practical steps which the parties mostly likely to be affected by doping could take to protect their positions.
Sponsors need not shy away from the industry, but should instead seek to include a robust morality clause, both in their agreements with individual players and teams, which specifically lists doping as a non-exhaustive factor which will trigger a right of termination for the sponsor.
For teams, negotiating out of a morality clause with a sponsor is likely to be difficult, particularly with bigger sponsors with greater bargaining power. Teams should therefore instead look to ensure that they are able to adequately sanction their players for doping under the terms of their player contracts. Should the worst happen, it would also be sensible to have an emergency PR plan of action and to be prepared to co-ordinate a response with the team’s PR agents and legal representatives to control any resulting media and legal fallout. Teams should be encouraged to educate new and existing players on the risks and potential consequences of doping as this is likely to help foster an anti-doping culture among players and teams, which is likely to be beneficial in the long term.
Those involved in the running of eSports leagues and tournaments will need to consider whether to update their competition rules to expressly prohibit doping (the ESL has already announced that it will be making changes to its policies and rules in light of recent events) or to agree on a set of uniform inter-league rules which could be self-regulated by each of the leagues themselves or governed by a central representative body (i.e. as is the case with FIFA in relation to football). As with traditional sports, either set of rules would need to provide for disciplinary hearings and sanctions for players found to have breached the rules, and establish a mechanism for appeals.
The success of either set of rules would depend largely on the degree to which any sanctions metered out for breaches of those rules are recognised and adhered to by all of the leagues. Incorporating the World Anti-Doping Agency’s anti-doping code (WADA Code) into a uniform set of inter-league rules could have the added effect of helping to further legitimise eSports in the minds of the public, who may associate the WADA Code with the highest levels of professional sport.
However, a robust anti-doping code is only of value if it is coupled with a stringent testing regime to ensure that it is being complied with. As the ESL has itself recently noted, full-scale doping testing at and in between eSports events is probably some time away and in any event does not address the issue of doping in online tournaments. This should not, however, stop the industry from moving in that direction now.
As eSports continues to grow, we can expect to see more and more parallels being drawn between it and traditional sports - both good and bad. Those involved in eSports as a commercial enterprise will have to grapple with these issues to ensure they have adequate systems in place to deal with doping as an emerging problem, and they may need to start doing so soon. We all want to see eSports flourish and avoid the widespread fallout recently witnessed in the world of cycling and athletics, from which the industry could take years to recover.