 to the wide world of eSports, a show devoted to all things eSports. I'm your host, Catherine Norr. Today, my guest is Ellen Xavier, editor-in-chief of esportsandthelaw.com. Our topic is Union Matters in eSports. Welcome, Ellen. So glad to be here. Thank you for having me. Terrific. So you have an exciting sports background. Please tell us about it and how you got into eSports. Well, I'll give you the short version. How's that? Terrific. So in just growing up, played sports and then ended up working at the racetracks when I was in college in the promotional side of three racetracks in Maryland and then moved on to working towards, you know, my law degree and happened to cycle to a session at a university on sports and the panel, one of the panelists was from the NFLPA, asked me if I'd come in for an internship position. And when I went to my law school, my dean said, well, you can't get credit for that. That has nothing to do with the law. So I had to approve. It had something to do with the law and sports could go together. And then in the 87 period, the NFL went on strike, the NFL players. And so I was knee deep in labor and management issues and learned quite a bit by fire. And then moved on to being the first woman to represent NFL players for almost two decades. And following that collectively represented the women's soccer players, softball players, inliners. So that would be inliners, skate, boarders, and BMXers with the X games and the gravity games. And then my son started break dancing as most of your children will get you into things you never thought and started the UBA, the United Breaking Association. And we 10 years later have breaking in the Paris 2024 Olympics. And then as my son says, I'm just following him. He plays games online. So I started to ask questions and began writing on the labor issues in eSports and was contacted by some gamers over the last six years about players rights. And finally wrote an article in depth about it for the ACC docket, which is really geared towards the in-house council. And so here I am launched eSportsandlaw.com work, you know, tirelessly for any gamer that calls me and asks me a question. And we'll continue to grow in that arena as you have Catherine. All right, I can relate to the traditional sports involvement. And then emerging into eSports. So I think that's a path that we both share. So why is unionization of eSports being considered? Well, I think you just break it down to the most core component, which is working conditions, benefits and wages. And I believe a lot of people will look at it and say it's all about wages, but it truly isn't. The union movement in the United States and globally really starts with safety and health. And I think that's a great place for the gamers to begin and look at how many hours are they playing and really do some research on what does that look like. No different than football players doing research on concussions. We want to dive deep into seeing how does the front lobe and the brain react to very long hours of sitting in front of a screen? What is the effect on the eyes and the development of the eyes for the screen? Maybe we have better solutions to protect the gamer. And so safety is really where I started from. Well, that makes a lot of sense. And so when you hear from eSports athletes, what are they describing as the conditions of their play and their training? Well, I think first and foremost, they're very young. So they haven't been exposed to working out in the world. And that's true of most athletes that I've worked with. And so one thing that you really want to do is educate them. What does it mean to have responsibilities under a contract in terms and conditions about showing up on time, about getting paid on time, setting up that bank account, looking at different ways, agents can really educate the community itself. And then I hear a lot about just how much time they're playing, what the meals are like, are they healthy or not? Are they taking breaks? What are they doing during those breaks? Is it physical training? Is it yoga? What are their housing conditions like if they're provided housing or if they're not? Travel conditions, security at events, these are all non-wage specific areas that what I believe is the place to start for a lot of gamers. So what would it mean if there was unionization in eSports, Ellen? So I would start out with sort of what exists and what are the options. You can start out as just forming a group of people that would bring a collective voice on behalf of the athletes itself. A lot of times entities use the word association and people automatically think that means they're a union under labor law, which is not the case. We know that Riot has an association that's not a union and funded by the publisher, Riot. And we know CSGO has an association that's not a union because we can only apply US law to what a union is and CSGO has players from all over the world in their association. So I think the first clarity is to really educate the gamers that you can form an association and be collective in a voice to have better working conditions. And once that begins, then you build a structure around that. So what does that mean? It means you educate the athletes, you help them build their post career, you develop health and safety standards that are minimum. You continue to look at how are parents involved? How are adults around them? What's the safety of the adults and the coaches and the training around the coaches from safe sport perspective? So these are all certifications that could be at minimal required under minimum standards. And so once the athletes begin to have that collective voice and that collective education, they will come up with many things that they're looking forward to develop in the esports space. And I think it's unfortunate that many articles rush to the athletes want a bigger pie. We don't know what the pie is. We don't have that intel to tell us what percentage. Some people say the players are making 75% of the income. Others are saying less than that. But we don't have that knowledge. And until you have a union that's certified by the National Labor Board, then you can begin to get that intel to decide what that budget is for the players versus the employer. Is there a desire by the players to unionize or would they be fine just staying in an association? Well, I've heard both so I can't say one or the other. But I will say this, that the other association that I was fortunate enough to help create, whether it was soccer or softball or x-gamer, what they call action sport athlete, like skateboarders. The one thing that's common thread through all of them is it takes a trigger moment. And what I mean by a trigger moment is somebody steals somebody's intellectual property that the athlete finally realizes they're not being compensated. It could be something as horrific as a death. It could be something where somebody is injured and doesn't have working conditions like insurance or benefits. So we will need that trigger moment. We've had a few in eSports, but not enough to convert to the collective voice. Do you anticipate that eSports will ultimately be unionized or is that questionable? Well, we don't have to follow our brethren. I used to, when I represented women athletes, I used to say, well, you don't have to become exactly what the men athletes have become. We could do it better. But the problem is the laws don't really kick in for your collective voice to have some leverage without creating that union recognized entity. And so without the laws, and we won't get into, I don't know, antitrust and labor management laws, the leverage is considerably less. And you're going against Goliath. But David won. So labor management laws, what laws would be applicable here? So I think the NLRB, the National Labor Relations Board, fits under the National Labor Act. And they oversee any time a group of people want to collectively hand in what we call these cards that they want a union. We just recently saw a wave in unionization following the pandemic. Why does that happen? Well, usually there's a huge discrepancy between the haves, the CEOs, and the have nots. And so it'll be interesting to see what this wave does to the sports industry as well. The other side is the antitrust laws. And there's several. But for our focus today, I think the Sherman Act is really the key figure. And what the Sherman Act basically states is you can't collectively get together and collude on suppressing players' rights, wages, or working conditions of the life. So for example, all the NFL teams can't get together and say no player can move from team to team for the rest of their career. But why do we allow us to have collective bargaining? Well, under a series of cases, the Supreme Court basically came down and said, look, we want management and workers to work together. So we're going to carve out this exemption. It's a non-statutory exemption, but it's an exception. And we're going to say, as long as you play in this sandbox, nicely, i.e. good faith, arms let, and as long as when you're in this sandbox, you're negotiating three mandatory subjects, working conditions, wages, and benefits. We'll let you play in that sandbox and collude together. But the minute one of you walk out of that sandbox, the antitrust laws will be sitting in a moat surrounding that sandbox. And that's the best way I can describe it. So I understand that you're a professor as well. What do you teach, Ellen? So I teach sports law. And when I teach at the MBA level, I have to use analogies like that because they haven't taken the law their first year or their second year. Many of them don't have an understanding of antitrust. And then I teach at GW Law School, coaching the moot court team for the sport-specific moot court competition. And most of the competitions I've done deal with Sherman F. Cases today are dealing with the college athletes and whether they'll union us. And I do believe that they will. And so it will be unheard of that the esports athletes in college now, playing on college teams, will begin to understand, oh, this NIL thing named image and likeness, okay, they finally caught up to us. We can always use our name image and likeness on our streaming. But oh, now they're employees. Well, let me learn a little bit more about that. So you'll see how the college athletes could clearly nudge the esports college athletes to come into the unionization sort of a hot moment and say, I think we should have a piece of that too. So in your teaching, you teach sports law and you're involved in sports law in moot court issues. Has esports entered that yet or is it still just traditional sports? So when I teach my class, I really teach about contractual and legal issues. I don't teach a specific sport. There are nuances in esports that I do raise, like the triangle of publishers that some are just publishers, some are publishers and leagues. So the broader perspective is if you're going to work in the sports business, you must understand the ecosystem of that sport. And obviously esports has a unique ecosystem, but that's not to say the MLS and the women's soccer league are single entities. So that's somewhat unique. And then you've got the NFL, the NBA and NHL are joint ventures. So I really teach the structure, how the law overlays the structure, and then how the stakeholders function within that structure. So the type of sport is less of an issue. Sure. So in speaking of that triad, how would collective bargaining, unionization impact the publishers? Well, the publishers really today holds all the cards and we don't know if they're making money or not making money. We know that in the Overwatch League, there was a leaked document about a sort of a salary, we call a tax, if you spend over a certain amount that was imposed upon by the team. So I think the publishers that own the intellectual property will need to figure out their space versus the teams. And I wouldn't even be surprised, Catherine, if the teams begin to create an association unto themselves and that the players join the teams to negotiate with the publishers. And that's just a crazy prediction, but we might see it. And you've spoken a bit about the NFL. So how does this compare to other sports like football? Well, you know, I look at the owners of the eSports teams and many of them own traditional sports. A good example is Ted Leonson. He's right here in Washington, DC, my home area, and he has the Justice Overwatch team. So it's not like these owners don't function in collective bargaining and union. They're quite aware of how other sports function. So naiveness cannot be one of their excuses. But what they will say is, well, I'll get in on eSports, make as much money as possible, be on the forefront before the athletes begin to realize that their collective voice can have a value. And I just believe that the owners and the people within the eSports ecosystem, many of them have come from traditional sports, and you will begin to see more and more of the traditional sports concepts and ideas perpetuate in the world of eSports. So we talk about eSports as just saying eSports. We're not talking about particular games yet. Would unionization happen, let's just say with League of Legends, and then move to other games? Or would it be an overall concept? What do you think? Well, if you move to unionizing under the Labor Act, you would have to have an employer. And so each game would have their own union. Now that's not to say they couldn't be under an umbrella organization, which is something I've envisioned, where collectively they can have similar issues and learn from each other. The tricky part about games alone is going out of vogue. And you have to build a structure that enables a union to exit out without bringing all the cards down for the rest of the umbrella organization. And so as we see games that become less popular, the structure has to anticipate that to function adequately in the long haul. Right. And that makes sense. But what about games that are new? Like let's just say Valorant, okay? That's one of the new ones. It's super popular. Let's just say that the older ones, Overwatch, CSGO, League of Legends, they were unionized. And then all of a sudden Valorant comes in. How would that be impacted? So the group of athletes or gamers that are in that particular game that's just up and coming would have to reach a certain plateau that they decide that they need to collectively have a voice. And once that exists and under labor laws, 51% would vote to be a union, then perhaps the umbrella organization would have certain criteria to join the umbrella organization. Like maybe you had to be in existence for two years. Maybe you have to have so many members. Maybe you have to have these kinds of issues. We don't know what that standard of the umbrella would look like, but it would be pretty easy to have a minimum standard. Now when games exit, obviously the umbrella organization would lose some strength. So you want to keep the influx, what I call a succession plan. Keep the influx of new games coming in. So you don't want those standards to be so high that you're only losing games and not bringing new games in. Sure. So what's interesting about esports is that the teams not only have United States citizens on them. They also have citizens from other countries all over the world. How can they be part of this unionization? Well, the U.S. laws only go as far as the U.S. law is about borders. And so in the case of Overwatch, that was pretty easy. And that's one of the reasons why when I was trying to create an association or union for the Overwatch players several years ago, I thought Overwatch was the place to start because they're employed within, at that time, California. And so the jurisdiction was easy. But if you look at a CSGO association, they have players from all over the world and there in some countries don't even recognize unions. And they can go to a league that's running their events and say, we have these demands. But that league doesn't have to listen to them because they're not governed by any specific law. Now, it might behoove them from a PR standpoint to listen to them. But the PR standpoint isn't the greatest leverage having the law behind you is. And so whether you're from Canada or even Germany, when I wrote my eSports article on labor issues, I brought in someone that was an expert on German law because they have incredibly more sophisticated laws than the U.S. on unionization. So you're right, Catherine. It's an advantage to the management to keep the diversity of jurisdiction in the gaming space on the player side. Sure. And we might see that tactic being used more. So what would the impact of be if eSports was an Olympic sport and yet the professional players are unionized? So no different than hockey being a professional sport like the NHL. But we have a national governing body called USA hockey. And so the NHL agrees to take a break during their season, during an Olympic year to allow the players to go back to their home country and actually compete against each other based on their passport and their home country. And so I envision the same. I think the IOC understands that they're losing the younger demographic. That's one of the reasons why they okay break dancing for the Paris 2024. And here's my plug, LA 2028. You better include breaking as well. But that being said, the IOC is about eyeballs. And we know that they already tested it out as a pre sort of pre game virtual event. I've been reading some things on what they're going to do in this virtual space. And there, there, there's too many athletes going the cost of money to send athletes, the security, all of those things are impacting how many countries can actually bid to be a host because the cost is too expensive. So I see esports is actually answering that call to be virtual. Sure. And you know what? It's interesting because the Olympic Games has evolved to be a security and a sponsorship event. And so these kind of getting eyes on the players is very important. But we are running out of time. So I'm going to give you the last word, Ellen, to tell people how they can find you. Well, you can read our free newsletter, esportsandthelaw.com. We don't write just for the lawyer. We write for everyone. And if they need to get in touch with me, they can find me through my website, ellenzavian.com, or they can come to your show. And I'm sure you'll pass on any information. So super excited to be with you. Fantastic to have two women talking about esports and diversity here we come. All right, fantastic. Ellen, well, thank you so much. I've learned a lot. And I'm sure our viewers have as well. And so I thank the viewers for joining us today. Think Tech Hawaii will enjoy a hiatus from live broadcast until the end of the year. The next live show of the wide world of esports will be on January 5th. My guest will be Ben Bueno. We'll be discussing the top 10 things to look for in esports in 2022. Wishing you happy holidays and we'll see you next year.