Presentation
Video Games & Esports: Publishers’ Control of an Industry
Beyond the individual gamers, the esports scene has recently seen an increase in the number of press releases from esports organizers announcing sanctions against players and/or entire teams in cases of match-fixing. This is the recent case of Maurice “AceeZ” Erkelenz and Lucas “Korey” Zwingmann, suspected of intentionally losing matches during the Tom Clancy’s Rainbow Six: Siege esports competition.
This action was allegedly orchestrated by a third party who bet on the team’s defeat, leading Ubisoft to impose sanctions including a $5,000 fine, warnings, reprimands, and a ban from participating in esports events for “inappropriate sharing of internal information and acting with knowledge of financial stakes.”
Some time ago, a Scottish player, Doki, was “sentenced” to a six-month suspension from all official matches for “toxic behavior in ranked,” while Juninho “gdNN1” Nunes, a former player for the Black Dragons team, was sanctioned by the publisher and the esports competition organizer for “unsportsmanlike conduct and dissemination of misleading information.”
These sanctions and expulsions, which are constantly increasing, are justified by the desire of stakeholders to preserve the integrity of video games and competitions, particularly in cases of cheating. In reality, the vast majority of online video game publishers, as well as some platforms like Twitch, now have moderation systems in place and the ability to sanction any content or behavior they deem abusive.
While some of these measures are applauded by the community, especially in cases of cheating or cyberbullying, the system surrounding the identification of behaviors and their sanctions is nevertheless criticized as being theocratic, opaque, and completely arbitrary.
This power that video game publishers wield over their users through disciplinary sanctions, generally based on a graduated scale of penalties, is not a new phenomenon. In 2006, Blizzard Games deleted nearly 30,000 World of Warcraft player accounts for various violations of its terms of service (compared to 76,000 this year).
The video game publisher: a king in its virtual world
Users and players are subject to disciplinary rules through a membership agreement signed upon registration, most often presented as a license: the well-known End User License Agreement (EULA), Terms of Service (ToS), or other Rules, Code of Conduct, and Charters. As such, EULAs specify the rights and responsibilities of the player towards the publisher, as well as in their interactions with other users.
They have become the means by which developers limit abuses within virtual worlds. The work relegated to moderators, historically volunteers and now alternately salaried or automated, is subject to increasingly rapid oversight, guaranteeing the integrity of their platforms. Their absolute power of control has been enshrined in French courts, which have recognized their contractual power to restrict and control.
(Initial rulings: Paris High Court, 1st Chamber, December 12, 2001, upheld by the Paris Court of Appeal in a judgment of March 11, 2003)
Video Games & Esports: The Publisher, Anything But a Court
Despite the growing confusion, video games are entirely controlled by video game publishers in their capacity as owners of intangible assets, over which they hold the broadest rights. Since they are in no way courts in the strict sense of the term, game platforms and publishers are not required to follow any specific procedures for imposing or notifying sanctions.
This confusion surrounding the status of video game publishers stems in particular from the terminology currently used to describe their oversight, reminiscent of criminal law: “fine,” “prevention policy,” “penalties,” “warning,” “reprimand,” “temporary or final conviction.”
To resolve the majority of disputes, mediators draw inspiration from fairness and judicial rules without holding the title or the constraints of the courts, particularly regarding the rights of the defense, fair trial, and so on.
Referred to as “police measures,” their prerogatives over user and player access to and use of their property appear to be limited by only one exception: abuse of rights, encompassing any disproportionate sanction or any infringement on freedom of expression or fundamental rights.
Video Games & Esports: Player & User Frustration
The current system is facing increasing criticism from some gamers and esports athletes, who are often victims of these types of sanctions and denounce their discretionary and arbitrary nature. Conversely, other users of these virtual spaces, often referred to as “early adopters, activists, or virtual delinquents,” reject any intrusion of law into these supposedly utopian digital spaces.
However, it is very difficult to assert any rights, particularly ownership rights, over content whose access has been restricted. Indeed, players do not legally own their games and published content: for the past decade or so, they have only held a user license for most games, which is revocable in principle.
The contractual position of the game publisher, which some consider infantilizing to the user through a system of sanctions analyzed as despotic, remains ambiguous “insofar as the player continues to fulfill their contractual obligations, notably by paying their subscription during periods of temporary sanctions.”
Video Games & Esports: Distinction Between Disciplinary and Criminal Law
Standardization & Regulatory Authority. Stabilizing the sector regarding sanctionable behavior is hampered by the diversity of individuals and entities capable of issuing regulations that define and penalize the misconduct of players or competitors. Each game publisher, each video game title, and each organized competition is likely to propose its own rules, disciplinary authority for judgment, and sanctioning.
A necessary standardization of the rules would be welcome, similar to the institutions developed within the sports ecosystem. The governing body(ies) must be legitimate in its/their structure to be recognized by all stakeholders, while also guaranteeing its independence and international reach to be credible and effective. These issues are perfectly applicable to other esports topics, particularly regarding player doping.
Esports is not a sport. Widely debated during the creation of its first legal framework in France, the legislature decided, for legitimate reasons, not to grant esports sporting status.
Read our article explaining the reasons for this decision.
Consequently, the disciplinary systems established by sports federations, with their criminal implications, are not as easily transposed to esports. General principles can be replicated, such as the principle of legality and proportionality of punishment, which requires game publishers, organizers, and even teams to be very precise in defining prohibited behaviors in their terms and conditions.
The concept of punishment and the proportionality of sanctions would then be linked to the nature of players’ rights. Transposing the sports model, based on the disciplinary power of federations, would require national esports organizations to unite players in a way that establishes a legal relationship with them, empowering them to take action against them.
However, publishers and organizers have every interest in clarifying and informing competitors and players as soon as possible of the sanctions associated with any violation of the rules, conditions of participation or any other contractual document binding them. These can be penalties related to competition – such as suspensions, temporary expulsions or disqualifications, temporary or permanent exclusion from any event organized by the publisher, or even, in some cases, from the video game itself.
Legal Implications. While civil sanctions can be sought against individuals violating game rules, legal proceedings are also possible on contractual grounds, and in some cases, even criminal proceedings. Conversely, in the absence of a recognized national esports federation, administrative disciplinary sanctions are not currently feasible.
Video Games & Esports: Contract Law to Combat Player Sanctions
Contracts. Currently, only private contract law truly governs esports practices. Consequently, the use and development of primarily contractual sanctions raise questions about their validity under commercial law, and even, subject to certain reservations, the tortious liability of the accused party.
For example, excessive strictness The penalties imposed on players could be challenged under consumer law, which penalizes unfair terms in adhesion contracts, the very type of contract that currently governs all video game competition contracts.
Case law has not yet settled the question of whether a player’s license agreement qualifies as a pure adhesion contract, thus engaging the full scope of consumer law.
Means of defense. Beyond contacting dedicated game support services to try to regain access to their accounts and content, players and users who have been penalized or banned from platforms still have recourse, such as requesting additional information justifying the penalty(s), under threat of legal action for breach of contract by the publisher.
To effectively pursue this request, it is essential to document as much as possible the circumstances surrounding the penalty: accounts, messages, personal data collected, etc. It may also be beneficial to include all relevant evidence to support the claim. of personal and financial harm. A meticulous review of the EULAs and code of conduct can also reveal unfair terms that can be used against the publisher.
The fastest possible challenge allows for highlighting the reality of the harm, particularly in the event of summary proceedings and full legal action for breach of contract against the publisher.
Esports. This issue also presents new challenges in the esports sector. Indeed, a professional esports player, whose entire income depends on access to and participation in a video game, usually a single title, could argue that a sanction from the publisher would prevent them from carrying out their professional activity without valid justification.
Given the diversity of regulations applicable to video game competitions, it would also be possible to shift the responsibility for this sanction onto third parties, such as the event organizer or the team. This would allow for demonstrating good faith towards the game publisher regarding the interpretation of the applicable rules. at the time of the competition.
