By - Marcelo Mattoso
Recently, the competitions scenario and the Brazilian judicial system’s “injunctions” to authorize the participation of teams in competitions have both been widely discussed—but after all, what are the real “rules of the game” in legal terms?
Following the growth of the esports market, certain doubts have arisen, especially concerning the legal aspects of these competitions, as well as possible interference from the judicial system.
Although there are certain similarities with traditional sports, there are even more peculiarities that distinguish the two, mainly due to intellectual property in electronic games. There are no owners or strict guidelines in electronic sports; this is not the case, however, in games, in the strict sense (e.g. League of Legends, Free Fire, Hearthstone etc)—and this has been raising certain legal issues concerning competitions.
Regular exercise of rights
When dealing specifically with the professional competitive scenario, for the most part, events are organized by the developers/publishers themselves in order to promote the company brand and the game, to which end they hire teams or players to participate in competitions.
As a rule, this occurs by means of partnerships for marketing purposes; teams commit to participating in competitions, hiring players and technical staff, and, in return, developers/publishers pay them a certain amount of money.
But make no mistake: as simple as it may seem, this is a complex legal transaction, involving numerous rights and obligations arising from the contract, which provides for all types of possible issues, from intellectual property to labor and data protection.
Moreover, since these competitions are restricted and private, and focused on marketing brands and games, participating teams are chosen carefully and exclusively by developers/publishers, as marketing partners, after careful and extensive analysis, so as to ensure that only serious ones—willing to contribute to the sector— in fact participate.
Also, as this is a private and inter-party relationship, this faculty (choice of participants) is considered regular exercise of rights, insofar as it is the owner of the game, owner of Intellectual Property and organizer of official competitions, who chooses the participants, since he or she is the most interested party concerning the quality and integrity of these events. After all, it is their brand that is at stake.
In other words, this is not a public competition, but a private one, in which developers, exercising their freedom to hire guaranteed by law (art. 421 and 422 of the CC) and doctrine, select the participating teams and contract with them participation in competitions, through a private partnership agreement, aiming, as mentioned above, at the marketing of games.
So, since this is a commercial contract in which the developer/publisher assigns a “vacancy” in a competition for participation of a certain team, this assignment has a private and inter-party nature, which is why the intervention of the judicial system must be an extraordinary—and not ordinary—measure.
Here we are talking about a license to use a “vacancy” in a private competition, for marketing purposes, with the legal nature of a private inter-party contract, where the user of the vacancy is paid to participate. Again, this is not a public offer where anyone who wants to can attend the event and register. It is up to the event organizer to decide who will or will not participate in the event he or she is promoting (regular exercise of law), and not the teams themselves or the judicial system.
In addition, when showing interest in participating in such events, either as a team or as a team member, the individual or legal entity, as well as signing a confidential and private contract, automatically approves that competition’s regulations and the guidelines established by the organizer—otherwise, there would be disorder and the purpose of the event (game promotion and marketing) would be nil.
Thus, there are two main steps here: firstly, a team must be selected to participate in a competition, through a civil contract with the developer/publisher; secondly, the team is also bound to the competition regulation, which must be faithfully observed.
Brazil’s judicial system has already expressed itself numerous times in the sense that it is up to the platforms, which in this case also appear as organizers of the competitions, to select the participants, ensuring the integrity of the virtual or physical environment; it is a regular exercise of right to supervise and punish users or competitors who do not comply with the rules provided for in the terms of use and other regulations.
Finally, it is noteworthy that, following ten long years of investments by developers/publishers, the Brazilian esports scene is flourishing and now moves millions of BRL, in addition to harboring thousands of professionals who dedicate themselves exclusively to it. This is why any movement that interferes with the balance can end up making this rapidly growing sector unfeasible.
Marcelo Mattoso holds a law degree from Unesa. He is a specialist in Digital Law (Innovation and Technology) by Fundação Getúlio Vargas, as well as an enthusiast who is specialized in consulting and litigation in the Games and Esports market. He is a lawyer, partner and coordinator of the Games/Esports field at Barcellos Tucunduva Advogados.
Source: Tecmasters
