Esport: Liability for Cheating and Exploiting

Yesterday I promised to submit a brief contribution on the subject of civil or labour liability for cheating and exploiting in esport.

The article should be seen as a complement to my article regarding Toxic Behaviour(see here) and the legal issues surrounding match fixing(see here).

Attention

But beware. The whole topic of esport is already only marginally represented in courts. In this respect, it is very difficult to make sure that you can make sure of it. In addition, the topic of cheating in esports is very difficult to compare with “normal” sport and one must therefore be careful to draw parallels.

Contracts

In principle, much is comparable to the topic of Toxic Behavior, because in the end, Cheating is also to be qualified as Toxic Behaviour in a certain sense. It can cause PR problems as well as major financial damage. It should also be clear that it is usually the end of one’s own career. In this respect, both teams and tournament/league organisers should clearly regulate what the consequences of cheating are. Suspensions are possible here, but also the right to termination without notice. For tournament and league operators, the question arises as to what happens to possible prize money, but also whether, for example, the fact that a player cheats leads to an entire team being excluded from further games or contractually excluded from the game. can be used.

Particularly relevant here are clear rules in the tournament conditions and the questions of the burden of proof in the event that the accusation of cheating is disputed. The Neukölln District Court has just ruled on this in a case I represented(see this article). Although the case was only indirectly concerned with esport, namely tournament ratings in World of Warcraft, the Court’s observations are quite relevant. Ultimately, it will be relevant, both in the case of tournament contracts and in employment contracts, that:

1. The allegation can be proved

and

2. A consideration is made of how serious the cheating incident is and thus whether it may lead to a complete suspension, possibly only one game is counted as lost or other consequences follow.

In labour law in particular, the weighing and other conduct of the player/employee should be relevant to the question of whether immediate dismissal is possible or whether a court considers a warning to be sufficient.

Cheating and labour law?

An interesting question in the field of cheating also arises in labour law. As an employer, can you ask if a player has ever been noticed for cheating? Since cheating is probably essential for the employer, this can be answered with “yes”. However, this is probably only the case if someone has actually been convicted in a provable, possibly even judicial way. If a non-governmental organization has only claimed a violation and the player denies the violation, for example, one might well argue that a player is likely to lie in a job interview on the subject.

The Federal Labour Court, for example, had to deal once with the question of whether an employer had to place a job applicant after an investigation procedure had been discontinued within the meaning of Section 153 et seq. StPO. The judges deny this right in the light of Paragraph 53 of the Federal Central Register Act. The value decision in this paragraph makes it clear that only the convictions referred to therein must be revealed.

If the team asks the question anyway, the player is allowed to answer it untruthfully. The organisation as an employer must not then separate itself from the player because he did not tell the truth.

This then raises the question of whether an employer is allowed to monitor a player, for example, when he trains in an organization’s performance center. This would probably be comparable to the legal question, which in classical professions can be compared with things such as camera surveillance.

Covert surveillance is not allowed in principle, as this would be a significant interference with the player’s personal rights. The exceptions are very limited, e.g. when a camera can help to investigate a crime. However, since the monitoring of PCs of the team itself is also very problematic, at least without an absolutely legally secure company agreement, actions by the organisation as an employer (or as a client within the framework of marketing contracts) should never be taken without advice. If such measures exist, such measures would also involve ‘on-board’ workers’ associations in the company.

Criminal consequences?

As long as esport (or individual Esport titles) are not recognised as a sport, in principle the Section 256c Of the German Criminal Code (StGB), Section 265d of the German Criminal Code (StGB) and Section 265e of the German Civil Code (StGB) are not directly applicable. Since analogous application is prohibited in criminal law, only general offences such as fraud would be conceivable. So if someone cheats at a game or tournament and therefore takes an asset order for the benefit of the cheater and to the detriment of a third party, it would be worth considering the fraud.

Task of the industry and associations

By the way, of course, the industry, tournament organisers and associations will also have to give serious attention to the issue in the future, because if cheating incidents occur too often, not only will sponsors reconsider their commitment, but the issue will also be part of the political debate, as is the case with doping in regular sport. The Esports Integrity Commission is likely to be at the forefront of this.

Follow the cheating! Damages?

Of course, as with the other toxic behaviors, the question arises whether cheating can also lead to claims for damages from sponsors, the esports organization or other teammates in the team. In the case of employees, it is particularly relevant that the obligations and ancillary obligations are laid down in the contract. In fact, if an employee culpably breaches his obligations under the employment contract and thereby causes damage to the employer, he is liable for this. Conduct is culpable if there is either intent or negligence. However, the employer must prove the breach of duty and the degree of fault of the employee in accordance with Section 619a of the German Civil Code (BGB)

If the players are bound to the organization with marketing contracts, as far as this is possible, the liability for damages can be even greater. Claims by teammates, for example, that are damaged by the cheating player, are also conceivable, e.g. because they also did not have to receive a tournament win or had to spend unnecessary travel expenses. Depending on the design of the team, the “Team-GbR” can also be held liable against the player. Sponsors could also make claims against the player under sponsorship agreements. Of course, such claims are only possible if the entire organization or the other players were also aware of the cheating or the attempt to cheat.

to ask?

As always, such a blog post can only give a rough overview of the problems. If you have any detailed questions, please contact me without obligation. Incidentally, as a lawyer, I am also fully entitled to or even obliged to conceal such cases.

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.