Despite the fact that the Esports sector is highly professionalised, there are still no specific regulations governing the relationships between the different agents that make up the industry.
It is common to see professional sportsmen and women sign their contracts in front of the media in mass presentations. Along the same lines, in Esports it is increasingly common to find large shows where Clubs present their Players, but what contracts should these Gamers sign with their Clubs?
This pill aims to analyse which regulations apply to the contracting of these Players.
Self-employed or employed?
The first of the questions to be addressed in order to determine the applicable regulations in the relationship between the Gamer and the Club is the nature of the link between the parties.
Although on many occasions we find that this relationship is articulated through a commercial contract, it should be borne in mind that we are in an employment relationship when the Gamer is integrated under the organisation and management of the Esports Club, receiving remuneration for this.
Specifically, Gamers will be considered employees, and therefore the Workers’ Statute will be applicable to them, when they have established obligations that are typical of an employment activity, such as, for example, complying with a specific training schedule, using the equipment and resources provided by the club or following the instructions and indications of the Club’s Management.
In conclusion, in order to determine the contract to be signed by the player, we must take into account the traditional features of the employment relationship.
Special employment relationship of professional sportsmen and sportswomen or ordinary employment relationship?
Although there is currently a wide-ranging debate as to whether Esports should be considered a sport, from a strictly legal perspective we must rule out the application of the special regime for professional sportsmen and sportswomen.
Specifically, although Esports organises competitions, sponsorships are signed or image rights are included in contracts, Royal Decree 1006/1985 of 26 June 1985, which regulates the special employment relationship of professional sportspersons, does not recognise Esports as a sport, nor its players as professional sportspersons, so we do not consider that the special employment relationship of professional sportspersons applies in these cases.
The aforementioned regulation defines a professional sportsperson as “one who regularly and voluntarily engages in the practice of sport on behalf of and within the scope of the organisation and management of a club or sports entity in exchange for remuneration.”
Therefore, as the specific regulations for professional sportsmen and women do not apply, we understand that we must refer to the ordinary employment regulations to determine the employment contract to be signed between the teams and their players.
Temporary contract or permanent contract?
The publication and entry into force of Royal Decree-Law 32/2021, of 28 December, on urgent measures for Labour reform, the guarantee of employment stability and the transformation of the Labour market – known as the Labour Reform – has introduced a series of substantial changes in Labour regulations that directly affect the type of contract that can be signed in the sector.
Although until the entry into force of the aforementioned regulation it was possible to discuss the type of contract under which the Gamer could be linked to the Club, with the publication of the aforementioned reform this link will have to be indefinite or permanent.
Specifically, prior to the aforementioned modification, it was possible to sign a temporary contract for a specific work and service with those gamers whose relationship is limited to a specific competition. However, since the entry into force of the aforementioned reform, this possibility has been eliminated and an ordinary indefinite-term contract or, where appropriate, a fixed-term employment contract must be signed when the provision of services is repeated over time for specific periods of time.
In conclusion, in the absence of specific employment regulations for the sector, the employment relationship to be entered into between the Gamer and the Club must be of an indefinite nature.
ABOUT THE AUTHORS
Xavier Pallarés is a partner in Deloitte Legal’s Labour and Employment practice since 2020, with previous experience at Ramón y Cajal, Clifford Chance and KPMG. He has more than 17 years of professional experience and specialises in preventive law and Litigation; technical assistance in collective bargaining, Employment regulation proceedings and collective bargaining agreements. He holds a degree and Master’s degree in Law from Universidad Ramón Llull University (Faculty of Law -ESADE) in Barcelona. Xavier has been recognised as a leading lawyer in the most important international directories, such as BestLawyers.
Jordi Diosdado is a senior associate of Deloitte Legal Barcelona office Employment practice. He joined the Big Four in 2008. He is a Law graduate from Universitat Pompeu Fabra and holds a Master´s degree in Labour Law and Social Security from the Barcelona Bar Association (ICAB).
Nerea Notario is an associate in Deloitte Legal´s Employment practice, joining the Big Four in 2021. She is a Law graduate from Universidad de Deusto and holds a Master´s degree in Sports Management and Sports Law from ISDE.
