The Emerging Role of Antitrust Law in eSports (Part 1)
The business of sports poses a dilemma for antitrust law. On the one hand, antitrust discourages, and in some cases outlaws, cooperation among separate and competing business, such as professional sports teams. On the other hand, cooperation is essential to organizing and operating a sports league. It is not always easy, therefore, to recognize the demarcation between allowable coordination that is essential to producing the sport and unlawful collusion between what ought to be separate, competing entities.
While Dennis M.P. Ehling, partner at Blank Rome in Los Angeles, agrees that publishers are entitled to control the use of game titles for commercial purposes, at some point, he notes, once a publisher has created an “entire economy based around a particular game, it’s difficult to see how traditional antitrust will not apply.” When that point is reached, the question will be whether the game publisher has gone beyond the lawful scope of its intellectual property protection to limit competition in a way that injures market participants or fans.
Ehling notes that the sports world does not have a lot of experience with the formation of new leagues around brand new games and, to the extent they do, they have in mind the existing leagues for existing sports. At some level, therefore, the organization of traditional sports will be the model that most parties outside the video game industry will tend to gravitate toward for questions related to third-party venues seeking to host eSports tournaments, betting on games, and streaming rights.
"The Emerging Role of Antitrust Law in eSports (Part 1)," by Jonathan Rubin was published in The National Law Review on September 16, 2019.