Whenever dispute resolution authority rests with a single person or entity, the potential for abuse is obvious and well-documented throughout the course of human history. The current esports landscape gives publishers precisely this type of power. When Riot banned multiple League Championship Series teams last week, and Valve banned the ex-IBP players last year, they allegedly did so without anything resembling the basic tenets of fair dispute resolution. No transparency. No due process. No right to appeal.
Regardless of whether you agree with the bans issued by Riot and Valve, or any other punishments doled out in esports, there can be little doubt that we need to level the way in which disputes are addressed. We must not only reach fair outcomes but also create fair processes to ensure that all of the key stakeholders will buy into and abide by the decisions that are reached. Otherwise, we continue to take the incredible risk that high-stakes punishments and/or dispute resolution will cause irreparable rifts between the parties that need to work together to create sustainable industry growth moving forward.
Such procedural mechanisms would act as a check against the unilateral whims of the publisher and go a long way toward eradicating some of the most common disputes in esports. Poaching, allegations of players being held under unlawful agreements, breaches of contract, and much more would be easier to address through expedited, specialized dispute resolution.
Moreover, the presence of such procedures would actually deter wrongful behavior. Very few people in esports are afraid of getting sued, in large part because they know the cost and time associated with litigation renders it a largely ineffective opportunity to redress the most common types of grievances.
Traditional sports leagues face the same problem, which is why they have all adopted some form of alternative dispute resolution. We need to follow suit.
For those asking: I was never presented evidence by Riot for these claims, nor did I know most of them existed.
— MonteCristo (@MonteCristo) May 9, 2016
The ownership fallacy
Before we can address dispute resolution procedures, we need to dispel one of the most popular myths that surfaces whenever a publisher takes an action with which many members of the esports community disagree: It's the publisher's game, and they can do whatever they want.
The publisher sits atop the decision-making food chain, to be sure. As I addressed in the first article in this series, whether that publisher is very active in the ecosystem (like Riot) or largely uninvolved (like Valve), it's in a unique position to impact how esports function for its game. The level of control publishers wield goes beyond that of a traditional sports league because they own the underlying intellectual property and can shut down externally run competitions if they so choose.
Herein lies the crux of the myth. Too often people equate the legal right to do something with the ability to undertake that action without repercussions.
Even while publishers maintain virtually uncheckable legal authority, their bargaining leverage and ultimate decision-making authority is more tenuous. Riot owns League of Legends and Valve owns CSGO. That gives them the legal right to charge $1,000 per day for the right to play the game, if they so choose. But they would never take that action because they cannot compel users to continue to play their game, and they are not eager to forego the revenue streams created by the current player base.
Players, teams, and third-party tournament organizers have precisely this type of counterbalancing leverage. Esports generate massive interest in certain game titles, which in turn drives millions of dollars in revenue for the publisher. The importance of these other parties will only continue to grow as fans develop deeper ties to team brands, superstar players and organizers that produce world-class events fans attend and love.
So a publisher may possess the legal right to expel teams or players. That right can even be a good thing, as the publisher is in a unique position to remove bad actors from the industry, benefiting everyone involved. But contrary to popular belief, that legal right is not boundless. The continued growth of esports hinges not just on the actions of publishers, but on the continued involvement, hard work and dedication of the players, teams and tournament organizers that round out the competitive ecosystem.
Even if publishers currently maintain vastly more bargaining leverage than any other party, that won't always be the case. I won't cover unionization here, because that is a topic for a future article in this series. But as the history of traditional sports shows, a combination of time, economic development and better organization can provide a party with a meaningful voice in the decision-making process where none existed for decades.
Power dynamics change, particularly as the amount of money at stake grows exponentially. They already are changing in many esports. So where do we go from here?
I was also told of my ban 30 minutes before the post. I was given no time to respond or present any information.
— MonteCristo (@MonteCristo) May 9, 2016
The basics of alternative dispute resolution
Luckily, we don't have to reinvent the wheel. Traditional sports leagues throughout the world employ specialized dispute resolution models that strike a balance between the need to reach a speedy resolution and the importance of adjudicating disputes in a full and fair manner.
While every league tackles the issue somewhat differently, there are certain basic indicia of fairness we should be adopting as we develop mechanisms and procedures that suit the unique needs of each individual esport (or the industry as a whole). Here are the basics:
At the request of one party, a dispute between two or more players, teams, tournament organizers and/or publishers should be submitted to formal, specialized dispute resolution proceedings.
Hearings should be granted in all cases, unless otherwise requested by the parties.
Once a grievance has been filed, a hearing must take place within a short period of time (e.g., 30 days), with a more expedited period for any disciplinary action resulting in suspension or expulsion (e.g., 10 days).
Every party should be given the full and equal opportunity to present any relevant evidence or proof of their claims.
Every party should have the right to be represented by counsel.
Evidence should be taken in the presence of all parties to the dispute.
Testimony should be given under oath, and every party should have the right to question a witness.
A neutral decision-maker (such as an independently hired arbitrator) should be involved at some stage in the process, whether by presiding over the initial hearing or in an appeal.
Decisions should be rendered as soon as reasonably practicable, but no later than one week after the hearing if the disciplinary action in question involves a suspension or expulsion.
The losing party should have the opportunity to appeal.
Does this sound like a lot? Maybe it is. Maybe it'll take us a couple years to get here, and each esport will need to adopt certain aspects of these recommendations over time. I'm OK with that.
Anything is better than nothing.
It's about time we stop reflecting on the fact that the system is broken, and start taking concrete steps to resolve disputes more fairly and protect the interests of all the parties on which the entire esports ecosystem is built.
Editor's note: Bryce Blum practices at IME Law (www.imelaw.com), where he represents six LCS teams, including Renegades, and four of the top 10 Counter-Strike: Global Offensive teams according to the current HLTV ranking, including two of the WESA Founding Members. He is a co-founder of the Esports Player Resource Center.