 Log Out 

H O ME TOPICS  MORE  EVENTS  JOBS  E X PE RT ADV I S O R S  C O U R SE S  AB O U T U S  MY AC C O U N T 

E X PE RT SE RV I C E S

COVID-19: how is esports coping compared to

traditional sports?
Published 08 April 2020 By: Daniel Kozelko Courses

Sports Law Advisors

Covid-19 has brought the world of traditional sport[1] to a standstill. From cancellation of
major leagues across the world to the postponement of the Tokyo 2020 Olympics, the
virus has been relentless[2]. Esports has not been immune to Covid-19’s reach.
Cancellations of major tournament events have come thick and fast[3], as have closures
of esports teams’ headquarters and community centres[4].

However, unlike traditional sports, the shutters remain up on much of the industry. In Upcoming Events
recent days online streaming platforms such as Twitch have reported massive increases MAY Football Law Digital
in user streaming hours[5]; online games platforms such as Steam have reported record 21
Conference 2020
numbers[6]; and, importantly, much tournament and competitive play has gone online[7].
Large players in traditional sporting industries are already turning to esports: see, for
JUN Becoming a sports
example, Formula One, which has recently launched the Virtual Grand Prix Series[8].
18
Governments are also getting involved, with the Japanese Ministry of Economy, Trade lawyer: starting out
and Industry proposing an initiative to lift the esports industry in Japan[9].
SEP Understand The Rules
Much of this is supported by the crucial distinction between esports and its traditional
17
counterparts. Whereas the latter requires numerous people to be present in the same Of The Game 2020 -
place, usually in close proximity, esports is digital at its core. As was recently reported by LawInSport Annual
Forbes, Nicolas Maurer (CEO and Co-Founder of Team Vitality) explained:
Conference
From a content and events perspective, the beauty of esports is that it’s a digital first
product. Physical contact isn’t needed between players, and they don’t even need to
be in the same country to compete. Live events are cancelled, and rightfully so, but
unlike other industries the lockdown doesn’t mean we, and players, can’t keep
producing content. Our priority is providing the community with our favourite form of
entertainment in these difficult times.[10]
While esports shares a number of Covid-19-related difficulties with traditional sports,
there are also points of distinction. This article seeks to flag some of these interesting
LawInSport Podcast
distinctions. While it focuses on the law and restrictions imposed in the England, it is of
equal application in other countries enforcing Covid-19 related lockdowns. Specifically, it
looks at:

• The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020;

• The effects of the restrictions on tradition sports and esports; and
• The consequences of the restrictions.

The relevant restrictions

At the time of writing the relevant restrictions in England were provided for by The Health
Protection (Coronavirus, Restrictions) (England) Regulations 2020[11]. Similar
regulations exist for the constituent nations of the UK. Cookie policy

By Regulation 6, there is a restriction on movement such that a person cannot leave their
residence without a “reasonable excuse”. Reasonable excuse includes “travel for the
purposes of work… where it is not possible for that person to work… from the place
where they are living”. By Regulation 7, gatherings of more than two people in a public
place are not permitted. There is an exception where the “gathering is essential for work
purposes”.

By Regulations 4 and 5 there are restrictions on which business can operate.

Interestingly, while many businesses that require large group gatherings to operate are
closed (see schedule 2 part 2 of the Regulations: e.g. nightclubs), some are only closed
to the public. While cinemas, theatres and concert halls are closed by Reg 4(4), this does
not prevent the broadcast of performances (Reg 4(5)). Sports stadiums are simply not
included in the list of premises in schedule 2 of the Regulations[12].

The effect of the restrictions

It is clear that, for both traditional sports and esports, spectators cannot attend events in
person. No reasonable excuse is available to a spectator for leaving their residence, and
no exception is provided for the gathering of spectators to watch sport. Similarly,
businesses that sell goods to spectators are required to close[13], albeit this does not
mandate the closure of the entire operation if the remainder of the business is permitted
to continue[14].

The interesting point of distinction in these restrictions comes with regard to the athletes
themselves. There was much discussion in the earlier parts of March about the possibility
of traditional sport being “played behind closed doors” (that is, played with no spectators)
[15]. This would still require the athletes, along with staff required to make fixtures and
training happen[16], to attend stadiums or other venues. Under the terms of the
Regulations, such activity would appear to be permitted. There would be a reasonable
excuse for leaving the residence, as an athlete cannot compete or train at home; and, an
exception for the gathering of people, as it is essential for work purposes. In this way, it is
clear that, as a matter of law, there is no strict prohibition on traditional sport continuing
(although, as a matter of practicality, such an approach has not broadly been taken).

In contrast, it would appear that for most eathletes, the same considerations do not
apply. As esports are essentially digital in nature, and close proximity is not (usually)
needed between players, there will rarely be a reason that makes it necessary for an
eathlete to leave their home. For regulation 6 it will be possible for the person to work
from the place they are living; and, for regulation 7 gathering will not be essential. While
it is true that teams will often play and train together, this certainly can also be managed
remotely except in the most extreme of cases. And, if such an extreme case arises, then
it is likely the exceptions in the Regulations will apply in the same way as for traditional
sports. Of course, this is all before recognising the fact that much of an eathlete’s
revenue and work will arise in maintaining their own personal online community[17],
rather than just playing and competing in professional play.

Consequences of the restrictions

There are a number of interesting conclusions that arise from this distinction, some of
which is canvassed here.

First, it is clear that esports must capitalise as much as possible on its digital nature. This
is both as a matter of practicality (it is better that events go ahead than do not go ahead),
but also of legal reality. Police in England have already begun using their enforcement
powers under the Covid-19 related legislation, and people leaving their houses may face
serious scrutiny of the reasons why they are travelling[18]. As such, questions will be
asked whether a person leaving their house to go to a central place to play video games,
albeit professionally, constitutes a reasonable excuse, and whether the gathering is
necessary. As the author has canvassed in other areas of law on LawInSport, the nature
of esports as not yet mainstream may impact negatively upon how decision-makers
enforcing the restrictions view such esports-related excuses[19].

Second, it may be considerably more difficult for teams (as, often, teams are formed
around an employment structure) to justify steps taken to dismiss or furlough eathletes or
support staff. In circumstances when a sizeable amount of work can be done on-line and
in a remote form, it will be hard to justify redundancy (or other forms of dismissal).
Similarly, if work can be done from home it will be hard to use of the UK government
furlough scheme, which requires that the individual be unable to complete work for the
organisation[20].

Third, as was noted in another article recently published on LawInSport, the law of
frustration and force majeure is going to be very important in resolving the plethora of
legal issues that Covid-19 will cause[21]. To take three examples: players’ bonuses,
sponsorship, and cancellation of competition will all raise serious points of friction which
may ultimately be resolved in the courts. Of note here is that considerations concerning
the movement and business restrictions in traditional sport will be subtly different to
those in esports, because of the way in which they apply. It may be harder to argue that
a contract has been frustrated, or that force majeure applies so as to discharge an
obligor of their obligation to perform, in circumstances where a live event that could have
been played behind closed doors is cancelled outright. As was noted above, it is
considerably easier to see how traditional sports can be played behind closed doors, at
least from the perspective of the legal restrictions. In contrast, the cancellation of live
esports events may more easily fall under frustration or force majeure, as it is harder to
explain why eathletes have a reasonable excuse to leave their home to work (and harder
to explain why the gathering is necessary). While eventually something which will be
fought in the courts, it is important for industry players to consider this issue now as the
address the ways in which they will meet (or, as appropriate, disregard) their contractual
obligations.

Comment
While Covid-19 will inevitably slow esports’ momentum, it may be that the industry can
capitalise on its moment in the sun[22]. There may be some notable legal and practical
difficulties ahead, as this article seeks to consider. However, with proper management,
the esports industry may emerge as one of the great business success stories of the
Covid-19 pandemic.
References
[1] Used as a useful contrast to esports rather than a comment on the value of either
form of sport.

[2] The Guardian has an extensive list of cancellations focused on Europe:

https://www.theguardian.com/sport/2020/mar/13/coronavirus-and-sport-a-list-of-the-
major-cancellations (last accessed 7 April 2020); ESPN has an extensive list of
cancellations focused on North America:
https://www.espn.co.uk/espn/story/_/id/28871525/coronavirus-cancellations-reactions-
sports (last accessed 7 April 2020)

[3] ESPN has an extensive list of esports events for March 2020 effected by Covid-19:
https://www.espn.co.uk/esports/story/_/id/28852881/how-coronavirus-affecting-esports-
gaming-events (last accessed 7 April 2020)

[4] Mike Stubbs, ‘How Esports Teams and Competitive Platforms are Dealing with the
Coronavirus Pandemic’,

forbes.com, 31 March 2020, last accessed 7 April 2020,

https://www.forbes.com/sites/mikestubbs/2020/03/31/how-esports-teams-and-
competitive-platforms-are-dealing-with-the-coronavirus-pandemic/#d16756f7192c

[5] Matthew Gault, ‘'Something Needs to Fill That Void.' As Stadiums Go Quiet, Esports
Are Having a Moment’, time.com, 31 March 2020, last accessed 7 April 2020,
https://time.com/5812633/esports-coronavirus/

[6]https://www.gamesindustry.biz/articles/2020-03-16-record-number-of-steam-users-
online-during-coronavirus-outbreak

[7] See Footnote 2

[8] ‘Formula 1 launches Virtual Grand Prix Series to replace postponed races’,
formula1.com, 20 March 2020, last accessed 7 April 2020,
https://www.formula1.com/en/latest/article.formula-1-launches-virtual-grand-prix-series-
to-replace-postponed-races.1znLAbPzBbCQPj1IDMeiOi.html

[9] Kelvin Tan, ‘Japanese government launches initiative to lift esports’, 31 March 2020,
last accessed 7 April 2020,

https://www.sportbusiness.com/news/japanese-government-launches-initiative-to-lift-
esports/

[10] See Footnote 4

[11] SI/2020/350

[12] An excellent summary of the provisions, provided in the context of enforcement by

the police, was published by 5 Essex Court on 1 April 2020:
https://5essexcourt.co.uk/images/uploads/articles/Coronavirus_-
_A_Guide_for_Police_Forces_in_England_.pdf (last accessed 7 April 2020)

[13] Reg 5(1) (or, dependent on the circumstances, reg 4(1)).

[14] Reg 5(9) (or, if reg 4(1) applies, reg 4(6)).

[15] Premier League prepared to have fixtures behind closed doors… unless they’re
prevented on health grounds by Government’, talksport.com, last accessed 7 April 2020,
https://talksport.com/football/684768/premier-league-games-behind-closed-doors-
coronavirus-pandemic/

[16] For the remainder of the article “athlete” and “eathlete” is taken to include the
relevant support staff.

[17] See Footnote 4

[18] See for example: Martin Brunt, ‘COVID-19: Woman convicted under Coronavirus Act
was 'wrongly charged'’, news.sky.com, 3 April 2020, last accessed 7 April 2020,
https://news.sky.com/story/covid-19-woman-convicted-under-coronavirus-act-was-
wrongly-charged-11967745 albeit the conviction was later overturned as the charge was
brought under the wrong legislation

[19] Daniel Kozelko, ‘Battle Royale at the border: the immigration problems plaguing
esports athletes in the UK and US’, lawinsport.com, 14 Feb 2020, last accessed 7 April
2020,

https://www.lawinsport.com/topics/item/battle-royale-at-the-border-the-immigration-
problems-plaguing-esports-athletes-in-the-uk-and-us

[20] UK Government Guidance, ‘Claim for your employees' wages through the
Coronavirus Job Retention Scheme’, gov.uk, 26 March 2020, last accessed 7 April 2020,

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-
retention-scheme#who-can-claim

[21] Nick De Marco QC, ‘COVID-19: sport and the law of frustration and force majeure’,
lawinsport.com, 17 March 2020, last accessed 7 April 2020,
https://www.lawinsport.com/topics/item/coronavirus-sport-the-law-of-frustration-and-
force-majeure

[22] See Footnote 4

Copyright notice
This work was written for and first published on LawInSport.com (unless otherwise
stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make
digital or hard copies of this work (or part, or abstracts, of it) for personal use provided
copies are not made or distributed for profit or commercial advantage, and provided that
all copies bear this notice and full citation on the first page (which should include the
URL, company name (LawInSport), article title, author name, date of the publication and
date of use) of any copies made. Copyright for components of this work owned by parties
other than LawInSport must be honoured.

Views 2525

Tags: Commercial | Coronavirus | COVID-19 | Employment | Esports | Health Protection

(Coronavirus | Restrictions) (England) Regulations 2020 | Sponsorship

Related Articles
COVID-19: practical guidance for those affected by cancelled sports events in Germany
COVID-19: key points for football clubs on the UK Government’s job retention scheme
COVID-19: 10 legal considerations of extending the football season in England

Author

Daniel Kozelko
Daniel practises from 39 Essex Chambers and has a particular interest in eSports
issues.
 He has significant experience in commercial and civil disputes. This includes assisting in
multi-million pound contract and construction claims in the High Court, in arbitral
proceedings, and appearing in the High Court on civil and regulatory disputes.

Daniel also has an interest in disciplinary proceedings, having worked on a number of

matters for a variety of regulators. Daniel is an avid gamer, with a particular interest in
MMORPGs, grand strategy, and FPSs. He looks forward to bringing his gaming
knowledge to eSports and video game disputes.

daniel.kozelko@39essex.com
Full Profile

Back To Top
Terms and Conditions Cookie Policy Sitemap
Subscribe Announcements

Copyright © LawInSport Limited 2010 - 2020. These pages contain general information only. Nothing in these
pages constitutes legal advice. You should consult a suitably qualified lawyer on any specific legal problem or
matter. The information provided here was accurate as of the day it was posted; however, the law may have
changed since that date. This information is not intended to be, and should not be used as, a substitute for
taking legal advice in any specific situation. LawInSport is not responsible for any actions taken or not taken
on the basis of this information. Please refer to the full terms and conditions on our website.