Analyzing the Unfair Play in E-Sports: Lack of Compliance in the Gaming Industry

Introduction

With internet connectivity reaching almost all households globally, E-sports has gained soaring support.[1] After being featured as a demonstration sport in the Asian Games, in 2018, E-sports has built a strong foundation for being recognized as a real sport.[2] Moreover, the International Olympic Committee intends to initiate an ‘Olympic Virtual Series.’[3] Although no formally recognized governing body for E-sports yet exists, International Esports Federation (IESF) has been conducting tournaments globally to achieve official acceptance.[4] The IESF Statute lays down specific objectives, which range from bringing together all E-sports stakeholders to ensuring fair play.[5] However, the highly generic nature of the Statute, with no mechanism for enforcing the players’ rights, shows the lack of proper governance. This further results in poor implementation and adherence to rules, leading to rights violations on such platforms.

sports and game

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The ‘one-sided’ fair play

To eliminate any discrimination in E-sports, it is crucial to understand a game’s player-developer dynamics. Game developers use tools like narrative designing to improve the eudemonic and hedonic experiences. The more engaging the game is, the better it will fare. Narrative designing in E-sports includes the plot, themes, characters, and dialogues. Whatever adds an interactive dimension to the game is part of narrative designing. Frequent updates introducing new characters not only broaden the narrative outlook but also allows players to explore other gameplay possibilities. The interpretative agency of a player determines how a player interacts with a game.[6] This means that due to the frequent updates, players are in a constant flux of having to piece together and re-orient their interpretation of the game.[7]

A player’s agency is vital to determine the result of the game. Making reasoned choices and judgments is part of exercising the player’s agency, ultimately deciding the outcome. For instance, story-based games like Knights of The Old Republic II, and Assassin’s Creed Odyssey, pose specific ethical and moral dilemmas.[8] These choices later affect the in-game characters and, ultimately, affect how the story plays out. In essence, the player also has a substantial role in influencing the progression of events. However, the player agency gets disrupted by the frequent updates and alterations in the game.[9] This interference with their cognitive abilities compels them to follow the authorial intentions of the developers, which serve their strategic needs.

In many games, players are often given the option or even compelled to buy in-game purchases, which offers them several benefits. These in-game purchases require real money to access special characters, powers, or skins.[10] As the game pattern evolves, the player perceives the option of in-game purchases as the binary of either investing a lot of time and effort into the game or just spending money and saving time and effort.[11] The business model of Fortnite is based entirely on this phenomenon. It is a free-to-play game, and yet it was the fourth-highest-grossing game. While Fortnite also has in-game currency, V-Bucks, to make in-game purchases, it does not substantially affect the player’s performance. By spending real money, players can enhance their game experience and gain a competitive edge over others.[12]

When a new item is released of specific strength and utility at a particular cost, its strength or general value is eventually reduced to prepare for another new release. This deliberate reduction of the power of an item is called ‘nerfing.’[13] Buying an item only for it to lose its value later, is a type of predatory monetization. It becomes especially challenging when these paid add-on items provide an advantage against those who play using only free in-game items. This reinforces the ‘pay to win’ model and lures the player to spend more to have a good gaming experience.[14]

Unrealistic presentation of products in dishonest ways, like excessive highlighting of features and not providing enough information about the conditions of the product, is part of predatory advertising. There is also no guarantee that the product purchased would meet the player’s expectations.[15] It is very much possible that he might end up with something different from what he paid for. With no grievance redressal mechanism and no regulations on predatory monetization adopted by game developers, the average consumer’s freedom of choice and conduct is being trampled with.[16]

The problem is that these microtransactions in games do not only serve as a medium to raise revenue, but it also reflects upon how the reins of power lean more towards the developer. It must be understood that video games are a collaborative work where the player and the developer should work together. However, the player’s actions are often subject to the developer’s strategic intentions, which deprives the player of their agency. Such an unequal relationship makes the player vulnerable to being cheated.

The gap between a developer and the player stays unregulated and unorganized. The imbalance of power gives unfair leverage to the developer of the game. As a consequence, a level playing field is compromised. It is disgruntling that the IESF Statutes have no mention of the rules and protocols that have to be followed by the developers. Considering the prevalence of unfair and misleading practices like compelling players to buy in-game purchases and nerfing the already acquired powers, a thorough review of consumer laws in E-sports is needed.[17]

The Way Forward

E-sports is a mystery. It is a sport, a technological innovation, and a profit-maximizing business, all at the same time. In the form of a sport, it has leagues, teams, skilled players, sponsors, broadcasters, and significant prize money. However, it is being held back from getting its due recognition of a ‘real sport.’ Unlike real sports, it is not considered a bulwark of socio-cultural ethics, resulting in many policies, governance, regulatory and legal issues. Due to this detachment from the real world, the ‘magic circle’ which protects the virtual world from outside influences exceeds the scope of consent, and it is argued that it should lead to legal liabilities.

There is a sheer absence of any global regulatory authority for E-sports, but the IESF statute presents a rudimental repository of some fundamentals sought to be achieved through E-sports. The main objective of the Statute is to ensure fair play, but the lack of compliance results in a ‘one-sided’ fair play, with the power leaning more toward the game developers. The developers can manipulate the game to serve their strategic motives and disrupt a player’s agency of how he chooses to interact with the game. To maximize their profit-making, games have strongly asserted the ‘play-to-win’ model, which not only takes away the quality experience of the game but also lures the players to use their money to gain an advantage. This is particularly problematic as those who don’t invest their money, would stand little chance of making progress in the game, regardless of their skills.

It is crucial to understand that while making in-game purchases, a player’s role coincides with that of a consumer. At such a juncture, predatory pricing and misleading advertisements deployed in the garb of ‘additional’ in-game purchases should be seen from the lens of unfair trade practices used to overpower players systematically. There is an urgent need to have regulations to increase the transparency on in-game purchases by evaluating the value propositions of these micro-transactions. There must be a robust consumer protection framework in place that will give guarantees about these purchases.

Author: : Sunidhi Kashyap, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1] Geyser, W. (2022) The Incredible Growth of eSports [+ eSports Statistics] W, Influencer Marketing Hub. Available at: https://influencermarketinghub.com/esports-stats/ (Accessed: 2022).

[2] Venkat, R. (2021) Asian Games 2022: Esports to make debut; FIFA, pubg, dota 2 among eight medal events, Olympics.com. International Olympic Committee. Available at: https://olympics.com/en/news/fifa-pubg-dota-2-esports-medal-events-asian-games-2022 (Accessed: October 17, 2022).

[3] Palar, S. (2021) The Olympic Virtual Series, Olympics.com. International Olympic Committee. Available at: https://olympics.com/en/featured-news/olympic-virtual-series-everything-you-need-to-know (Accessed: October 21, 2022).

[4] Admin (2022) What we do, International Esports Federation. Available at: https://iesf.org/about/what-we-do (Accessed: October 21, 2022).

[5] Admin (2022) Rules & regulations, International Esports Federation. Available at: https://iesf.org/governance/regulations (Accessed: October 15, 2022).

[6] Jennings, S.C. (2019) A meta-synthesis of agency in game studies. trends, troubles, trajectories, Game Journal. Ludica. Available at: https://www.gamejournal.it/a-meta-synthesis-of-agency-in-game-studies-trends-troubles-trajectories-s-c-jennings/ (Accessed: October 16, 2022).

[7] Ruotsalainen, M. and Blom, J. (2022) “The Player’s Interpretative Agency and the Developer’s Disruptive Powers: How Blizzard Enforces Authorial Intention in OverwatchJ,” in Modes of Esports Engagement in Overwatch. Springer International Publishing, pp. 49–62.

[8] Stang, S. (2019) Game studies, Game Studies – “This Action Will Have Consequences”: Interactivity and Player Agency. Available at: http://gamestudies.org/1901/articles/stang (Accessed: October 18, 2022).

[9] Stuart, K. (2015) Video games aren’t about power – they’re about agency, The Guardian. Guardian News and Media. Available at: https://www.theguardian.com/technology/2015/oct/16/video-games-power-agency-control (Accessed: October 19, 2022).

[10] Blank, A.R. (2021) “The Cost of a Bundle of Wood: Video Games and In-app Purchases,” Seton Hall Legislative Journal, 45(3), pp. 739–772.

[11] ibid.

[12] Ganti, A. (2022) How Does Fortnite Make Money?, Investopedia. Investopedia. Available at: https://www.investopedia.com/tech/how-does-fortnite-make-money/ (Accessed: October 20, 2022).

[13] Winters, C. and Winters, C. (2020) Buffing, nerfing, and op: What video games can teach us about talent management, Casey Accidental. Available at: https://caseyaccidental.com/buffing-nerfing/ (Accessed: October 22, 2022).

[14] Wong, A.W.-T. (2019) “Analysis of Global Regulatory Schemes on Chance-Based Microtransactions,” Asper Review of International Business and Trade Law, 19, pp. 111–154.

[15] Lui, D., Thompson, B. and Rich, C. (2020) “Blurring Lines: Gambling and Loot Boxes in Video Game Industry,” York Law Review, 1, pp. 7–35.

[16] Sigmon, K.A. (2021) “Pay to Play: Video Game Monetization Patents and the Doctrine of Moral Utility,” Georgetown Law Technology Review, 5(1), pp. 72–98.

[17] Arneaud, S.K. (2021) “Video Games and the Federal Trade Commission Act: An Analysis of the Practices of Video Game Developers and Their Effects on Players,” Florida A & M University Law Review, 16(1), pp. 47–66.

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