WESA announced the formation of their own arbitration
court on November 2nd 2016. There has been widespread criticism of several of WESA’s policies and rules which many feel favor one particular tournament organiser. However the fact of the matter is that WESA includes several top ten teams amongst its members. They are the community leaders when it comes to forming a framework and setting standards.
As a more efficient alternative to lengthy and costly litigation, the Arbitration Court offers a legal framework that can be used to resolve a range of issues, including contract disputes, prize money pay out and distribution, financial misconduct and Player representation. The issues will be decided by an impartial panel of three Arbitrators, although the parties can also agree to utilize a single arbitrator (sole Arbitrator) for certain disputes. The decisions at the end of the confidential proceedings are final and there are no appeals.
You can read the full length of the announcement on the WESA website.
Bryce Blum(@EsportsLaw) who has been instrumental in several of the issues related to the legal aspects in Esports was asked for his opinion on the arbitration court of WESA by the community. As such he put out a public statement regarding the same in a detailed post on Reddit.
Arbitration: the Basics
What is arbitration? Arbitration is form of alternative dispute resolution that allows for conflicts to be resolved in a private, binding manner by an independent third party. Arbitration rules will resemble those of a court room, but they are far less onerous and formal. As a result, decisions can be made much faster and cheaper than through the court system.
Why is arbitration used in sports (and should be in esports)? Sports present a unique set of challenges when disputes arise. An athlete’s career is short (as is the season itself), and a dispute surrounding what team they play for or whether they are a free agent will necessarily impact the ecosystem in a more immediate sense than in many typical judicial disputes. Sports (and esports) don’t have time for a three-year court case to reach final resolution.
Moreover, having the ability to respond to issues in a timely manner actually deters wrongful behavior. Very few people in esports are afraid of getting sued, in large part because they know the cost and time associated with litigation renders it a largely ineffective opportunity to redress the most common types of grievances. Establishing an expedited, specialized dispute resolution mechanism helps address these concerns.
It’s also worth noting that specialized bodies develop a better sense of the subject matter, bringing background expertise to the table that can prove vital in reaching just decisions. Think of it this way: would you rather the judge of a case understand the industry, or have to learn about why all these kids are playing video games for a living before diving into the particular dispute in question?
What happens in esports without arbitration? We wind up with decisions made without any semblance of due process or transparency. I wrote an op ed in the wake of the IBP player ban, and my conclusion was simple: the decision itself might be fair, but the process definitely wasn’t.
Also, for every dispute that gets resolved, there are dozens that never do. Some of the most common disputes in esports involve poaching, allegations of players being held under unlawful agreements, breaches of contract, and the like. If no tournament organizer or publisher steps in to adjudicate the conflict, courts are too expensive and time consuming, and no alternative dispute resolution process exists, the parties are left without a viable avenue of recourse. This, in turn, perpetuates the problem. If one party gets away with a certain type of wrongdoing, others in the ecosystem are much more likely to follow.
Characteristics of Alternative Dispute Resolution
I reviewed the dispute resolution policies of traditional sports leagues throughout the world when I wrote my ESPN article. Here is the list of common criteria used in those processes that help resolve sports conflicts fairly and quickly:
- Hearings should be granted in all cases, unless otherwise requested by the parties.
- Once a grievance has been filed, a hearing must take place within a short period of time (e.g., 30 days), with a more expedited period for any disciplinary action resulting in suspension or expulsion (e.g., 10 days).
- Every party should be given the full and equal opportunity to present any relevant evidence or proof of their claims.
- Every party should have the right to be represented by counsel.
- Evidence should be taken in the presence of all parties to the dispute.
- Testimony should be given under oath, and every party should have the right to question a witness.
- A neutral decision-maker (such as an independently hired arbitrator) should be involved at some stage in the process, whether by presiding over the initial hearing or in an appeal.
- Decisions should be rendered as soon as reasonably practicable, but no later than one week after the hearing if the disciplinary action in question involves a suspension or expulsion.
- The losing party should have the opportunity to appeal.
WESA’s Arbitration Court
As I’m sure you’ve gleaned if you’ve made it this far, I think alternative dispute resolution is a good thing and desperately needed in esports. I’m really glad WESA is implementing the first such procedure.
We actually don’t have a ton of information about how WESA is structuring its Arbitration Court. Panels of 3 people are fairly common, as is the option to select a sole arbitrator. I’m a little surprised there is no appeals mechanism, but if the process itself is fair it’s a major step in the right direction. While it doesn’t need to be an exact replica of the bodies used in traditional sports, I’d expect to see the rules surrounding WESA’s Arbitration Court to resemble the characteristics listed above. If it does, it could be a major step forward for our industry.
That being said, the fact that this body is connected to WESA (even if it’s “completely independent” as stated in the press release) creates some potential problems. Arbitration is ultimately a voluntary process – the parties opt to use an alternative dispute resolution procedure, either via contract or in the moment in the hopes of resolving their conflict more efficiently.
I would imagine that ESL’s competition rules will require league participants to resolve their disputes using this body, but will anyone else opt in? We’ve already seen that ESL’s involvement in WESA causes other tournament organizers to keep their distance from the organization. With the advent of PEA, it’s natural to assume that non-WESA teams will be hesitant to get involved in WESA initiatives as well.
For my money, WESA’s Arbitration Court is the type of infrastructure the esports industry desperately needs. If it is built correctly and arbitrators are truly independent decision makers, I hope people and organizations are willing to make use of it for the betterment of the industry. I’m just not sure they will.
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