By: Fabian Ziermann (D’Kart)
First, what is eSports?
Electronic Sports, commonly known as eSports, represents the competitive playing of video games. eSports has developed over the last decade from a small extracurricular activity, pursued by a niche group of particularly talented players, into an entire industry. For instance, the most successful eSports game, Riot Games’s League of Legends (LoL) has entered the eSports scene only 10 years ago in 2011. What started with small tournaments now includes competitive leagues in all major regions of the world, including secondary leagues for talent development. Whilst eSports may be somewhat comparable to traditional sporting disciplines and as such may allow for the conclusion that eSports’ antitrust relevance stems only from the fact that EU competition law is increasingly active in the sporting sector (ISU, super league), this appearance is deceptive.
eSports and modern antitrust – relevance?
Whilst traditional sports are usually regulated by an external governing body which enforces an independent ruleset (e.g. UEFA for football), in eSports, due to the market structure, regulators are effectively unable to establish themselves. However, eSports is not just a sporting discipline that needs regulating, but an ecosystem designed to utilise network effects from several markets, to benefit the respective publisher. These network effects are a product of connecting multiple markets with the underlying eSports game. Both the weak presence of regulators and the winner-takes-all market structure of the eSports sector are attributable to the game publishers’ empowerment by IP law.
Whereas football is not owned by any one party, eSports games and with that all related markets are controlled by the publisher holding the copyright for the respective game. This means that unlike modern gatekeepers, which “only” have a proprietary business model, for instance Google’s algorithms, in eSports the game publisher has an ownership interest in all markets built on the underlying game…