LEGALIZING E-SPORTS: VIRTUAL SPORTS BUT REAL PROBLEMS
This post, the Winning Entry of the 2nd RFMLR Freshers' Article Writing Competition, 2021, is authored by Megha Bhartiya, first-year student of B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Patiala.
The E-sports industry owes its existence to the interaction between largely consumed conventional competitive sports and the age of globalization. Digital spaces have provided an effortlessly efficient way to interact with people around the world, and interactions are not limited to conversations. Online sports provide a stimulating alternative to calls and messages by keeping the consumers engaged through visual and auditory graphics. They also boast a large variety based on different skillsets like multiplayer online battle arena (MOBA), first-person and third-person shooter (FPS and TPS), real-time strategy (RTS), etc. The sports market in India remains centered around traditional sports. Traditional in this sense can be understood as popular games involving physical movement. These games often draw a large number of participants as well as spectators and range from sports like kho-kho and gilli danda to cricket. On the other hand, there is a rapid and large rise in participation and promotion of the online gaming industry by those who are keen enough to understand the potential it offers.
2. BIRTH AND RISE OF VIRTUAL SPORTS
With the birth of the internet, virtual single-player games transformed into multiplayer games and one of the most popular among these was World of Warcraft (WoW) by Activision Blizzard. WoW was a massively multiplayer online game ("MMOG"). These require internet connectivity and are played after logging in to the game’s host server. In these games, the content was often overshadowed by the social networking aspect. The immense popularity and success of WoW and other MMOGs was a clear indication of the potential that these multiplayer online games and sports could offer. This success can be largely attributed to their connectivity features which include voice and video channels where players from across the world can communicate in real-time. Their social networking features enhanced the sales and outreach greatly, proving to be their selling point. Interestingly, E-sports and E-gaming are separate terms used for what is based on skill and based on chance. Both have developed and grown in momentum tremendously in the last decade. The recent growth was catalyzed by the pandemic when people were forced indoors during quarantines and lockdowns. There has been a clear shift in consumption and creation of digital entertainment including virtual sports from pre-COVID to post-COVID time.
3. PROBLEMS FACED BY E-SPORTS INDUSTRY
With a rise in participation and viewership, the E-sports industry falls short of becoming a large-scale marketable and commercial institution majorly due to the absence of laws, well-formed regulations, and organized education about the industry to the masses. Even before insisting upon forming guidelines, the industry first needs to be given statutory recognition and consequently promotion by the government of India, following the example of countries like Malaysia, Korea, Denmark, Finland, Ukraine, Russia, and more. India’s neighbors Pakistan, Nepal, Sri Lanka, etc. have also recognized E-sports and put them under their national sports framework.
The existing legal framework in India around online gaming and sports is ambiguous due to the unclear policies and laws regarding E-sports, insufficient due to the lack of such clear policies themselves and traditional as mentioned before. This has been reiterated by many experts from both fields of law and sports and such ambiguity and insufficiency also stem from obsolete sports policies. The biggest example would be the gambling laws dating back to pre-independence. As a consequence, India lags behind in the virtual sports industry due to the absence of newer laws and a long-delayed acknowledgement for the industry altogether. This is due to no statutory mention of virtual sports and lack of government recognition to institutions working towards developing the E-sports industry in India. Senior advocate Aruneshwar Gupta, the chief architect of the Sports Act of Rajasthan, Himachal Pradesh, and Uttar Pradesh has also commented on how the National Sports Development Code of India is wholly insufficient and incapable to deal with the sports industry. He believes that the national sports laws must deal with all competitive sports in India which they do not currently. Lokesh Suji, the director of the E-sports Federation of India has also explained the potential of E-sports relative to Cricket, arguably the most popular sport in India. He explains how it can outrun cricket but the government must take steps.
4. ARGUMENTS AGAINST E-SPORTS
E-sports has met with constant backlash by many over the years. German critics have been the loudest. One of the chief arguments against recognizing E-sports as an official sport is that it does not involve any physical activity, strain, or muscle movement. The German Olympic Sports Federation ("DOSB") President, Alfons Hörmann, had claimed that E-sports did not exist and would not be included in the Olympic program in January 2019 during the new year reception for DOSB. This was a response to a statement issued by the federal government’s digitalization commissioner, Dorothee Bär, stating that E-sports was sports. In the same year, the Hessian Interior and Sports Minister, Peter Beuth, had even gone as far as to say “E-sports is as little sport as knitting and playing the recorder”.
The German’s opinions are an extreme and grating version of those of the opposition. The one common element in the definition of ‘sport’ in the Cambridge and Collins’ dictionary is the requirement of physical activity and skill. Since the largely relied upon definitions incorporate physical movements, the arguments of the oppositions of E-sports prove to be sound. The issue then is the old-school definition itself and the subsequent need to update it. These anachronistic definitions in the era of constant technological growth and sweeping transfer of industries to digital platforms act as deadweights for the sports industry, disallowing it to flourish and make the best use of the exhaustive virtual space. Under the national policies for Sports, the Ministry of Youth Affairs and Sports, India mentions that sports and physical education activities are essential for human resource development. They help develop comradeship and friendly competition, and also improve productivity. Noticeably, sports and physical education are read together here and the idea that any sporting activity must entail physical exertion is thus inveterate, but with time formats of sports and consumer patterns have evolved and the prerequisites of sports have changed. This results in an urgent need to change rudimentary definitions of sports and communicate the changes to the masses.
The second argument against E-sports is rooted in the grey area between sports and games. The Public Gambling Act, 1867 made an exception for games of ‘mere skill’. This clearly implied games involving skills to play and win were distinct from others, but the definition of what were games of ‘mere skill’ was unclear. The Supreme Court in three separate judgements, namely Dr KR Lakshmanan v. State of Tamil Nadu; State of Andhra Pradesh v. K Satyanarayana; and State of Bombay v. RMD Chamarbaugwala observed that ‘mere skill’ meant dominance of skill as a prerequisite of victory. The success in games of skill must primarily and substantially depend on the knowledge, training, attention, experience, and adroitness of the player. Since the element of chance could not be eliminated completely, the skill must be the dominant factor to determine whether a game was indeed based on it.
5. ARGUMENTS FOR E-SPORTS
Sports are a large part of Indian culture and the disapproval of E-sports in India is similar to that of Germany, though, more moderate. Arguably, the online sports industry in India suffers more due to the disregard and lack of knowledge about it than the actual opposition against it. Lack of clarity about what can be categorized as E-sports and the difference between sports and games pose another hindrance. Suji refers to games like Teen Patti, Rummy, Poker, etc. that get confused with competitive E-sports like FIFA, Counter-Strike, Dota, or Fortnite as igaming and not E-sports. He classifies them as casual and chance-based games that allow the players to make money whereas E-sports are entirely dependent on one’s own skill.
To understand why E-sports should be included as sports, one must understand the rationale behind the need to remove physical movement as a prerequisite for sports and observe the many skills it requires and benefits it provides to the players. Online sports are a test of dexterity and diverse skills including the sharpness of mind, concentration, attention, hand-eye coordination, memory, critical thinking, and more. They inculcate soft skills like team spirit and communication since the majority of online competitive sports are team-based. Problem-solving, quick decision-making, and analysis of given situations become crucial skills when playing E-sports. Tactical and strategy-based sports also provide stimulation and mental exercise. Victory in related tournaments results in a boost to self-esteem and personality growth. These skillsets are tested in various national and international E-sport tournaments, in fact, the Intel Extreme Masters World Championship 2017 had massed more viewers than Donald Trump’s presidential inauguration from the same year. These statistics show that people also enjoy watching E-sports tournaments as a form of recreation, implying it is coherent with the element of enjoyment under the definitions of sport in the Cambridge and Collins’ dictionaries.
The International Olympic Committee ("IOC") and Olympic Council of Asia ("OCA") recently launched a virtual sports series giving recognition to virtual sports. At the 2018 Asian Games, E-sports was only a demonstration event but it is set to make its full debut as a competitive medal sport in the 2022 Asian Games in eight games – FIFA, PUBG mobile, Arena of Valor, Dota 2, League of Legends, Dream Three Kingdoms 2, HearthStone and Street Fighter V. To India’s pride, Tirth Mehta won a bronze medal in the HearthStone demonstration event in 2018. Though Mehta’s medal did not count towards India’s final tally, it was a landmark event illustrating the unrealized potential and talent pool for virtual sports in India.
6. WAY FORWARD
The way forward now is to recognize, accept, organize and promote. E-sports and its potential to turn into a large sporting phenomenon found acknowledgment in the Lok Sabha session of the Indian Parliament on 4 February 2021 by the former Union Minister for Sports, Kiren Rijiju, but it was limited to mentioning it as an emerging platform. To the industry’s dismay, he added that the government had no plans to add E-sports to the concurrent list. Instead of pigeonholing an entire industry, the government must aim to bring forth its latent economic potential by revamping the existing legal framework regarding sports to include E-sports and also recognize formal institutions working for the same in India like Electronic Sports Federation (EFSI), E-sports Development Association of India (EDAI) and E-sports India (EI). Online gambling needs to be differentiated from online sports and games to avoid the exploitation of ambiguous wordings and lacunas in reworked laws. While India lags behind, even the hostile Germans have started conceding to the growth of the virtual sports industry. In 2020, the German Federal Government approved a new E-Sports visa. This was a result of the changes in the new Skilled Immigration Act as per the German E-sports Federation (ESBD). It will make the process of obtaining permanent residency easier for professional E-sports players from non-EU countries. This is a step forward for the Germans with a clear recognition of the competition and skillset involved in online sports. Online games and sports have also worked as a bridge between people during the pandemic and proven their capacity to be commercialized by the exponential growth witnessed in the last two years during Covid-19. Virtual gaming experienced one of the biggest revenue leaps in 2020 and is expected to grow.
Proper legislation and monitoring can help expand the online sports industry from the domain of digital entertainment to a full-fledged state-recognized sport resulting in increased opportunities for the youth and creating employment. Over many decades, sports have modernized while the laws remain stagnant. India has witnessed the birth of many new competitive sports and games as well. Commercialization of sports is rampant, yet the prospect of marketing E-sports remains neglected and the dark underbelly of the industry persists. This underbelly includes sports frauds, phishing, and substance abuse which is akin to the conventional sporting industry and subsequently jeopardizes the participants’ legal rights. With the younger generation being exposed to digital media and content sooner than earlier, their interest and participation in online sports tournaments increases. Once recognized by the government, drafting newer frameworks focused on regulating the ever-growing online sports industry is important. The safety net of protected rights and judicial recourse assures and encourages more participation and will unequivocally lead to the overall growth of the Indian economy.