Are Esport Players Contracts ToS?

Few people know

The vast majority of people, let’s say the “non-legally educated” people will probably associate the abbreviation GTC or General Terms and Conditions only with the circumstance of long texts, which no one reads, but everyone nods off. And this is also the rule, because GTC does not have to be agreed at all, for example, because they already become part of the contract if they were reasonably perceptible for the part of the contract against which they are to apply. On the Internet, for example, are linked on the order page, can be displayed in the department store at the checkout or handed over by the cashier, and the like.

However, this is far from the end of GTC and a mass of additional standards in the BGB as well as extremely extensive jurisdiction.

What are terms and conditions?

Pursuant to Paragraph 305 of the German Civil Code (BGB), general terms and conditions are all contractual terms and conditions pre-formulated for a large number of contracts, which one party (user) provides to the other party when concluding a contract. It does not matter whether the provisions form an externally separate part of the contract or are included in the contract document itself, the extent of which they are written, the font in which they are written and what form the contract has. The exception is that general terms and conditions do not exist, insofar as the terms and conditions of the contract have been negotiated in detail between the parties.

As a result, for example, the vast majority of rental contracts are nowadays to be regarded as GTC and are therefore subject to the numerous restrictions of Section 305ff of the German Civil Code (BGB). Most landlords probably don’t realise that.

Many other contracts for streamers, influencers and esport teams are also

The same is likely to be the case with many other contracts for streamers, marketing agencies and the like. And, let’s get to the topic of this post, also for things like player contracts for esports teams. If such a team uses contracts at all, in many cases, individual contractual clauses are unlikely to be negotiated at all. Instead, for example, the manager of a team will say, “I have a contract here from the Internet. We can use it”. The fact that individual values are entered on individual contents of the contract, such as possibly even the amount of the remuneration, does NOT alter the fact that the remaining provisions could be classified as GTC. By no means are GTC (see above) only available if they are enclosed individually alongside another contract. Individual clauses (usually entire passages/paragraphs) are nevertheless to be regarded as GTC. The key point is usually that GTC are available when individual conditions have not really been negotiated. Incidentally, it is not enough that the conditions have been read out once or that a “Is fair” or “OK so?” falls.

Adjustment hardly possible?

A general condition of business does not lose its character as a clause subject to content control solely by amending it retrospectively. On the contrary, the subsequent amendment must be made in a way that justifies treating it as an individual agreement concluded from the outset.

The BGH has decided that these conditions do not exist if the user (in this case, e.g. the team) has not granted the contractual partner freedom of design even after the conclusion of the contract and has not made the core content of the clause available without the law. and the parties reach an agreement on that basis which merely mitigates the adverse effect of the clause. The burden of proof lies with the team/agency, etc. If it is later questionable whether there is a GTC or an individual agreement and the person against whom the clause is to be used submits that the contract is not individually negotiated and that it is therefore a pre-formulated contract, the user must prove that it is an individual agreement. This is often very difficult to do.

Is it relevant what kind of esport contract is available?

It may only make a limited difference whether there is an employment contract or a co-op contract. Individual clauses in employment contracts are also often GTC and are therefore subject to legal clause control. Sections 305c II of the German Civil Code (BGB), Sections 306 of the German Civil Code (BGB) and Sections 307 to 309 of the German Civil Code apply to pre-formulated contractual terms even if they are intended for one-off use only and insofar as the “consumer” could not influence their content due to the pre-formulation. In this case, therefore, it could only save if it is a co-op contract between two entrepreneurs, which is a matter of individual cases.

Of course, the question of whether GTC is available is also a case in question. However, it is likely to be present in many cases. The result is that the Section 305c of the German Civil Code (BGB) is applicable and things such as surprising or unilaterally disadvantageous clauses are usually not possible. What is irrelevant is whether the user, as the team, found the clause to be disadvantageous or even intentionally “smuggled” the clause. Even if much is not generalizable in GTC law and there is extensive jurisdiction on almost every issue, things such as compensation for termination of a contract, exemptions from liability, special disadvantageous obligations and much else is difficult to enforce unless the team can clearly prove that this very clause was negotiated, that the player had the opportunity to have the clause deleted, and yet the contract (perhaps with other changes etc.) was possible. would be. By the way, a so-called reduction in the number of people receiving the validity is not possible.

What does this mean for use in player contracts?

In addition to numerous other questions of social security law, copyright law and many other standards, the extensive casestudies of the GTC law also support the fact that player contracts, which are also supposed to be effective, are examined by experienced lawyers. to become. If the budget is missing, which can be natural, and then the question arises as to whether you are a professional team, care should be taken to ensure that contracts are fair and balanced, so that a GTC audit does not lead to a so-called unreasonable disadvantage. , which can lead the player. However, judging this can be very complicated in individual cases, which is why I currently assume that that more than 90 of all player contracts used in Germany are either ineffective, unenforceable, can be terminated with very short notice periods or, in any case, have no effect on the players in part. This can be annoying just when a player suddenly succeeds, has a lot of streaming revenue, makes big tournament wins, or is to be recruited. In most cases, a stoinism on the contracts that are not really well done is then legally pointless.

Just yesterday, a client came and presented me with a short contract for promotion as a FIFA player. Included: A sum of damages in the event of premature termination of the contract, which is higher than what the player has received, at least contractually, from the contract. As a rule, such a clause should not have any effect, but it could well have been formulated effectively. Stupid ly run.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.