Matchmaking Mishaps

MATCHMAKING MISHAPS: NCAA AMATEURISM AND COLLEGIATE ESPORTS

By: Michael Arin,† Volume 103 Staff Member

On August 15, 2017, ESPN announced that the National Collegiate Athletic Association (“NCAA”) is formally investigating its role in the collegiate esports[1] domain.[2]  By late November 2017, the NCAA contracted with a Chicago-based marketing and consulting firm to “further its exploration of the collegiate esports landscape,” noting that “more than 475 colleges and universities currently support esports at a club level, and approximately 50 schools offer scholarships in esports.”[3] While some believe the NCAA’s involvement is inevitable, the NCAA’s overgrown legal landscape presents challenges to adopting esports.[4] This Post briefly recounts the evolution of esports before considering the positive and negative consequences of NCAA adoption of esports.

SPORTSIFICATION OF VIDEO GAMES: ESPORTS[5]

Esports—the competitive playing and watching of video games—is a modern phenomenon unlike any other. Although often compared to traditional sports because, in both, “skilled players compete against each other in live events, supported by passionate spectator fans and sponsors,” esports differ in major respects: reliance on technology, youth of players, and, perhaps most importantly, lack of external regulation.[6]   These differences have generally remained consistent during the professionalization of esports from the 1990s through the explosion of participation in 2011 when Twitch transformed esports spectatorship.[7]

Since 2011, the industry has undergone a sportsification as investment by major sports[8] teams and corporate sponsors[9] triggered a vigorous debate as to whether esports are—legally and culturally—sports.[10]  This second wind of esports is the stage upon which collegiate esports programs began to draw attention.  Robert Morris University first announced a scholarship-sponsored League of Legends team in 2014 and now over one hundred universities offer similar programs.[11] These formalized programs are split between athletics, student services, and academic houses.[12] Several organizations have popped up in an effort to regulate and unite university programs nationwide: National Association of Collegiate Esports (NACE),[13] American Collegiate Esports League (ACEL),[14] and the National Collegiate Esports Association (NCeSPA).[15] In 2018, the NCAA has now entered the fray.  While the sportsification of competitive video games forecasts the NCAA adopting collegiate esports programs and thereby providing a legitimizing and stabilizing effect, a complete co-op by the NCAA would prove to be economically and legal incompatible because of the amateurism rules currently in place.

CREDIT WHERE ITS DUE: THE NCAA’S ABILITY TO UNIFY AND ADAPT

The NCAA has a long history in intercollegiate sports programs across the United States.[16] In 1905, there were over eighteen deaths and one hundred major injuries in collegiate football alone when President Roosevelt took action and convened officials to discuss the issue.[17] The result was the Intercollegiate Athletic Association, later renamed in 1910 as the NCAA.[18]  From 1910 to today, the NCAA slowly expanded from its initial role as developer of “rules that could be applied to the various intercollegiate sports” to protector of student-athletes.[19] This long history of the NCAA both provides a stable framework within which industry participants appreciate a sense of certainty and drags along with it a host of complications.

The NCAA, with all of its faults, does provides two primary advantages: unification and adaptation. “Collegiate esports … lacks rules, regulations and enforcement mechanisms that apply to all games and all schools” and importing the NCAA’s regulatory framework would provide a familiar stability to players and universities alike.[20]  It is uncontested that the NCAA is the biggest player in the intercollegiate sports scene.[21] With a wide reach—near omnipresence in the intercollegiate sports scene—and years of experience, the NCAA provides a process for unification.

Additionally, the NCAA has shown a willingness to adapt to esports.[22] Recognizing the inherent differences between esports and traditional sports, the NCAA specifically hired Intersport to conduct research and advise on a potential role in “supporting growth in this rapidly expanding space.”[23] While willingness to adapt may be present, it is unclear exactly how much adaptation would be possible for the NCAA.  Would the NCAA consider esports players athletes or would a new set of terminology come to dominate and dictate the players’ status?  It is pure speculation whether the NCAA would adapt appropriately, but a willingness to adapt does provide hope for esports aficionados seeing the NCAA as inevitable.[24]

NCAA AMATEURISM VS. ESPORTS STREAMING: ECONOMIC INCOMPATIBILITY

Yet the good does not outweigh the baggage; the NCAA of today is a mesh of complex regulations, concepts, and legal decisions that, if imposed upon the budding collegiate esports scene, would stunt program development. One of the central policies of the NCAA is amateurism: “Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.  Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”[25]  This principle creates a “clear line of demarcation between college athletics and professional sports.”[26] The primary difference is pay.[27] While some plaintiffs have been successful in piercing the NCAA’s amateurism defense, the holdings are largely limited due to NCAA settlement practices.[28] Although some authors claim amateurism is dying, the NCAA is unlikely to let go of its primary defense in the current flood of litigation.[29]

When applied to intercollegiate esports programs, amateurism makes a mess of esports’s interdependence on streaming sites. Streaming sites—as content distributors—are recognized as main stakeholders in the esports industry.[30] Both high-profile tournaments and aspiring esports players rely on streaming sites to gain popularity and base revenue from advertisements.[31] Some players have even found a career purely in streaming post-professional play.

It is unnecessary to speculate on how the NCAA views this form of monetization; the NCAA stripped UCF kicker Donald De La Haye of his amateur status for making an undisclosed amount via YouTube videos in 2017.[33] Via tweet, the NCAA stated: “Contrary to misperceptions, making a YouTube video—and even making money off of it—is not a violation of an NCAA rule . . . De La Haye could monetize his video activity as long as it was not based on his athletics reputation, prestige or ability.”[34] But, De La Haye was unwilling to separate his athletics videos from the rest.[35] This rule is entirely unworkable in the esports context; players would effectively be barred from monetizing any stream with video game content, presuming “athletics ability” is not restricted by game or genre. Ultimately, the NCAA would have to abandon one of its founding principles—amateurism—to accommodate the current esports economic model.

† Michael Arin is a student at the University of Minnesota Law School. Address author correspondence to arin0006@umn.edu or @ArinMJ on Twitter.

[1] Esports industry participants disagree over the proper grammatical rules affecting the term esports.  While several spelling variants exist (esports, e-sports, eSports, e-Sports) and authors debate as to the singular form of esports, the term “esports” herein refers to both the singular and the plural and will be the sole spelling unless spelled otherwise in the source.

[2] NCAA to Evaluate Esports Landscape in October, ESPN (Aug. 15, 2017), http://www.espn.com/college-sports/story/_/id/20341540/ncaa-discuss-esports-landscape-october.

[3] Chris Radford, Intersport to Help NCAA Research Esports, NCAA (Nov. 30, 2017), http://www.ncaa.org/about/resources/media-center/news/intersport-help-ncaa-research-esports. See also Nat’l Ass’n of Collegiate Esports [hereinafter NACE], School Directory, NACEsports.org, https://nacesports.org/school-directory (last visited Oct. 6, 2018) (listing 106 collegiate esports programs approximately one year later).

[4] Bryce Blum, The NCAA and Esports Don’t Mix—But Soon, They Might Have To, ESPN (Oct. 23, 2017) http://www.espn.com/college-sports/story/_/id/21121852/the-ncaa-esports-mix-soon-to.

[5] At the time of writing, the major esports titles include League of Legends (LOL) developed by Riot Games, Dota 2 and Counter Strike: Global Offensive (CS:GO) developed by Valve, and Overwatch developed by Blizzard Entertainment. Brett Molina, Why Watch Other People Play Video Games? What You Need to Know about Esports, USA Today (Jan. 12, 2018), https://www.usatoday.com/story/tech/news/2018/01/12/more-people-watch-esports-than-x-dont-get-here-basics/1017054001.

[6] Jas Purewal & Isabel Davies, The Esports Explosion: Legal Challenges and Opportunities, 9 Landslide 24, 25 (2016).

[7] Martin D. Owens, What’s in a Name? eSports, Betting, and Gaming Law, 20 Gaming L. Rev. & Econ. 567 (2016). Also, for an in-depth journalistic view on the development of esports, see generally, Roland Li, Good Luck Have Fun: The Rise of eSports (2016).

[8] See, e.g., Tom Huddleston, The New York Yankees are Investing in Competitive Video Gaming with Vision Esports, Fortune (Oct. 19, 2017), http://fortune.com/2017/10/19/the-new-york-yankees-are-investing-in-competitive-video-gaming-with-vision-esports.

[9] See, e.g., John Gaudiosi, What Investors Need to Know about ESports, Fortune (Dec. 10, 2015), http://fortune.com/2015/12/10/investing-in-esports (mentioning investment by Microsoft, Activision, Capcom, Coca-Cola, Red Bull, Pizza Hut, and American Express).  See also, Oliver Ring, FlyQuest Announces SNICKERS as “Official Chocolate” of the FlyFam, EsportsInsider (Jan. 12, 2018), http://www.esportsinsider.com/2018/01/flyquest-announces-snickers-official-chocolate-flyfam.

[10] For a legal perspective, see John T. Holden, Anastasios Kaburakis & Ryan Rodenberg, The Future is Now: Esports Policy Considerations and Potential Litigation, 27 J. Legal Aspects Sport 46 (2017).  For a social-cultural perspective, see generally, T.L. Taylor, Raising the Stakes: E-sports and the Professionalization of Computer Gaming 35-84 (2012). It is important to recognize that adoption by the NCAA will further legitimize the collegiate esports scene and serve as social recognition.  In the end, whether or not esports should be considered sports does not factor into the compatibility between esports and the NCAA save for the purist who believes that the NCAA should only deal with sports.

[11] Sean Morrison, List of Varsity Esports Programs Spans North America, ESPN (Mar. 15, 2018), http://www.espn.com/esports/story/_/id/21152905/college-esports-list-varsity-esports-programs-north-america; see also, NACE, supra note 3.

[12] Adel Chouadria, Q&A: Kurt Melcher on Advising the NCAA and Esports, ESPN (Dec. 1, 2017), http://www.espn.com/esports/story/_/id/21634961/qa-kurt-melcher-advising-ncaa-esports.

[13] Nat’l Ass’n of Collegiate Esports, https://nacesports.org (last visited Oct. 6, 2018).

[14] Am. Collegiate Esports League, https://www.acelesports.org/about (last visited Oct. 6, 2018).

[15] Nat’l Collegiate eSports Ass’n, http://www.ncespa.com (last visited Oct. 6, 2018).

[16] Leslie E. Wong, Our Blood, Our Sweat, Their Profit: Ed O’Bannon Takes on the NCAA for Infringing on the Former Student Athlete’s Right of Publicity, 42 Tex. Tech L. Rev. 1069, 1073 (2010).

[17] Rodney K. Smith, A Brief History of the National Collegiate Athletic Association’s Role in Regulating Intercollegiate Athletics, 11 Marq. Sports L. Rev. 9, 12 (2000).

[18] Id.

[19] Id.; Wong, supra note 16, at 1070.

[20] Blum, supra note 4.

[21] Wong, supra note 16, at 1070 (claiming the “NCAA is the biggest player in the $4 billion market for licensed merchandise for college athletics”); see also John Niemeyer, The End of an Era: The Mounting Challenges to the NCAA’s Model of Amateurism, 42 Pepp. L. Rev. 883, 885 (2015) (describing the NCAA as a “monopoly”); Blum, supra note 4 (“[the NCAA] is also the only regulatory body in a position to affect change across the entire collegiate sports landscape”).

[22] Chouadria, supra note 12 (“[The NCAA] understand[s] also that there are major hurdles and [esports] is not similar to traditional sports.”).

[23] Radford, supra note 3.

[24] Blum, supra note 4.

[25] NCAA, 2017-2018 Division I Manual 61-92 (2017), http://www.ncaapublications.com/productdownloads/D118.pdf [hereinafter NCAA Manual]; Oliver v. NCAA, 920 N.E.2d 203, 214, vacated pursuant to settlement (Sept. 30, 2009) (stating, in dicta, “amateurism is the bedrock and founding principle of the NCAA”).

[26] NCAA Manual, supra note 25, at 61.

[27] Id. at 63 (describing, in Article 12.1.2 Amateur Status, how an individual loses amateur status through impermissible payment).

[28] See, e.g., Oliver, 920 N.E.2d at 203 (challenging NCAA Bylaw 12.3.2.1—prohibition of counsel’s presence at negotiations—as a breach of good faith and fair dealing but vacated by settlement); White v. NCAA, No. CV 06-0999 RGK, 2008 WL 612046 (C.D. Cal. Jan. 28, 2008) (settlement of class action by football and basketball student-athletes whose financial-aid was capped below full cost of attendance in violation of the Sherman Act).

[29] Niemeyer, supra note 21, at 883.

[30] Laura L. Chao, “YOU MUST CONSTRUCT ADDITIONAL PYLONS”: Building a Better Framework for Esports Governance, 86 Fordham L. Rev. 737, 744 (2017) (listing main stakeholders as game developers, tournament organizers, teams, professional players, sponsors, and streaming sites).

[31] Id. at 750.

[32] Mel Hawthorne, 6 of Twitch’s Richest Streamers and How Much They Make, Gamebyte (Apr. 27, 2018), https://www.gamebyte.com/6-of-twitchs-richest-streamers/ (listing streamers who now make millions from Twitch streaming alone after successful competitive play). For an academic exploration of the evolution of streaming, see generally T.L. Taylor, Watch Me Play: Twitch and the Rise of Game Live Streaming (2018).

[33] Morrison, supra note 11.

[34] @InsidetheNCAA, Twitter (Jul. 31, 2017, 1:40 PM), https://twitter.com/InsidetheNCAA/status/892122868355657728/photo/1.

[35] Id.