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  • Harsh Malpani

Understanding 'E-Doping' and Need for Fair Competition in E-Sports


Introduction

E-sports (Competitive Video Gaming) has become one of the fastest growing industry over the past few years and is rapidly gaining mainstream attention.[1] Competition is intense between players and marginal gains can make a difference between winning and losing. Cheating is therefore a high temptation for many players.[2] Integrity issues such as doping are a problem that has plagued both traditional sports and e-sports alike. In fact, the chances of it going undetected are higher in e-sports as compared to traditional sports because it is a fragmented and heterogeneous industry which lacks a central governing body. Doping in e-sports can be divided into two categories:


Traditional Doping – It is the ‘use of performance enhancing substances or prohibited processes/methods’[3] to improve sporting performance and results. The most commonly used ‘performance enhancing substances’ in e-sports are Adderall, Ritalin and Selegiline, which help the players in increasing concentration, calming nerves, reducing fatigue and boosting reaction times[4] and are of great significance to gain competitive advantage over fellow competitors.


Mechanical Doping – It is the ‘use of software cheats, applications and server attacks’ by a player to gain a competitive edge in the game. These cheats generally works in one of the four ways; they let the computer automate actions (automatic aiming or triggering of actions), they allow a player to see through objects (walls or smoke), they allow a player to acquire additional powers (ability to fly or gain strength),or, in the case of online qualifiers, they attack the server host of the opposing team, causing them to ‘lag’ heavily and be unable to play the game.[5]


The fundamental rationale for clean sports or fair competition arises out of the fact that

“Doping undermines the value of sport. The intrinsic values of sport, often referred to as ‘spirit of the sport’ is the celebration of the human spirit, body and mind, and is characterised by values such as ethics, honesty, respect for rules, self-respect and respect for others, fair play and healthy competition. If sport is void of these values it might be argued it is no longer a sport.”[6]


And even though the sin of doping in e-sports is not as rampant as in traditional sports but it is important that it must be given heed to by the industry so as to nip this issue in the bud, otherwise the e-sports industry will fall apart like a pack of cards in terms of ‘integrity issues’.


This article will first delve into the existing anti-doping regulatory regime in the industry and measures taken by different e-sports leagues and tournament organizers to curb the same. Then it deals with the challenges faced by the industry in implementing the anti-doping regulations effectively and based upon a review of existing regulations and obstacles faced by the industry, the article makes key recommendations that could be taken into account for effective implementation of these regulations so as to ensure that it does not suffer from the malady of integrity issues.


Current Regulatory Regime

With regards to curbing ‘mechanical doping’, e-sports leagues are using anti-cheat software such as Valve Anti-Cheat (VAC). Further, they are directly tracking the movements of a player’s keyboard and mouse to ensure these movements reflect what actually plays out on the screen and players are required to maintain unopened equipments to ensure cheat software cannot be installed prior to the commencement of the competition.[7]


Traditional doping’ came to the fore in July 2015, when Kory “Semphis” Friesen (a star player of Counter Strike: Global Offensive) publicly admitted that he and his team had used Adderall during a professional tournament.[8] Following this admission, ESL (an e-sports production company & tournament organizer), woke up from the slumber and took this incident seriously, partnered with World Anti Doping Agency (WADA) to develop industry’s first anti-doping policy. However, the enforcement was not up to the mark as even though players found guilty of doping were banned from participating in ESL organised tournaments, they could easily carry on playing in other leagues because of lack of single recognised body enforcing a uniform anti-doping policy across all e-sports platforms.[9]


Thereafter, various steps were taken in an attempt to move the e-sports industry towards better regulations,[10] such as, in 2013, the International Esports Federation (IeSF) became the official signatory of WADA.[11] Later, in 2015, E-sports Integrity Coalition (ESIC), a non-profit members association, was formed to get a coherent integrity plan accepted across the industry[12] and in 2016, World Esports Association (WESA) was formed as a result of joint collaboration between ESL and other e-sports teams with the objective of ‘protecting and promoting the reputation and integrity of e-sports…and banishing illegal, immoral and unethical practices from events supported by WESA.’[13]


However, it is pertinent to note that even though ESIC & WESA have laid down anti-doping regulations but as e-sports teams compete across multiple games in different leagues and in different tournaments[14] and there being no overarching governing body to regulate the industry and set uniform rules[15], they have only limited reach.


Challenges in Implementing the Anti-Doping Regulations

Since, e-sports is an infant industry, difficulties and challenges are bound to follow and implementation of the anti-doping regulations has been no exception.


David Howman, the former head of WADA, described e-sports as ‘The Wild West – a young world lacking a uniform anti-doping policy and governance.’[16] This issue has been troubling the industry from a long time because without a central governing body ensuring that all teams adhere to the same anti-doping regulations,[17] it’s difficult to say that the ‘virtual playing field’ is truly a ‘level playing field.’ So, even though all the governing bodies aim for some degree of player protection, fraud prevention and integrity within the e-sport, they all act independently and have different members[18] and the enforcement of sanctions across different events and tournaments is quite difficult as it is relatively easy for players banned from competing in one publisher’s league or tournament to still compete in other publisher’s league or tournament since they can easily migrate from one league to another without much scrutiny because of lack of central governing body[19] and hence until there is an overarching sanctioning body that has the power and authority to sanction across all leagues, this problem is likely to continue.[20]


A unique problem with regards to dope-testing players is that many tournaments have online qualifying rounds where players participate in the tournament remotely, which makes the actual testing difficult to conduct[21] (because of cost and logistic factors) and testing is done only at the highest level where players are present at the same venue to compete and therefore there is no way of knowing if doping is a problem in the lower tiers[22] and it is unlikely that dope-testing would be introduced at lower tiers as it could in fact land the industry in hot water causing more trouble than it’s worth, i.e., stirring a pot that is, at the moment, placid.[23] Also, because of players participating remotely in qualifying rounds, it is difficult to keep a check over mechanical doping.


Another problem is that the regulatory bodies in e-sports have incorporated the ‘Prohibited Substance List’ of WADA whole cloth, rather than incorporating only the substances which are relevant for performance enhancement specifically in e-sports. This ‘one size fits all’ approach is not appropriate as for example there might be a case where an e-sports player might be taking a medicine which say contains ‘terbutaline’, a prohibited substance used for enhancing strength and reducing body fat which leads to performance enhancement in ‘traditional sports’ but since increasing strength and reducing body fat does not lead to any unjustified performance advantage in e-sports, having a blanket ban on all substances included in the WADA list is highly questionable because the nature of traditional sports and e-sports are completely different and what might enhance performance in traditional sports might not enhance performance in e-sports and vice-versa.


Also, Article 8 of the IeSF’s Anti Doping Rules, 2014 provides that any case arising out of anti-doping rule violation shall in the first instance be referred to IeSF’s Doping Hearing Panel and the decision thereafter may be appealed to the Court of Arbitration for Sports (CAS).[24] However, the CAS has historically dealt with disputes only involving ‘sports’ and since it has not yet recognised e-sports as a ‘sport’ under it’s remit[25], it may not be willing to take up doping cases in e-sports and the cases may land up in ordinary courts where it might take a long time to resolve the dispute which will be detrimental to the players keeping into account their short professional life. However, since no such dispute in e-sports has reached the CAS till now, this problem is yet to be tested.


So, with the current regulatory regime, successful implementation of anti-doping regulations seems no cakewalk and is still a far fledged dream.


Recommendations and Conclusion

The following recommendations can be taken into account for successfully combating e-doping issues:


1. There must be a more consolidated approach to governance, with the establishment of one global standard set of regulations to replace the piecemeal approach adopted by different leagues and tournaments.[26] A combined regulatory body within e-sports would be able standardise doping and diminish inter-league uncertainty[27] in terms of enforcing sanctions and if e-sports is to be truly recognised as a legitimate sport, then it needs to be regulated in a similar fashion. Therefore, in order to have the necessary teeth to enforce integrity principles across all e-sports platforms,[28] the ‘wild western town’ must have a sheriff (a single governing body) for the entire industry. However, until an overarching governing body is established and recognised, there should be mutual recognition and adherence to sanctions, i.e., sanctions imposed on a player by a league should be recognised by all other leagues.

2. Since, the ‘one-size-fits-all’ approach to prohibited substances stands inadequate for e-sports,[29] federations should act carefully and only prohibit the use of such substances or methods which would really give an unjustified advantage. Also, federations should devote time to identifying any further substances or methods which are not prohibited by WADA but result in an unjustified advantage in e-sports[30] and include them in their ‘Prohibited Substance List.’

3. Also, until CAS recognises e-sports as a ‘sport’ under it’s remit and takes up e-doping cases, an ‘e-sports specific arbitration court’, much like the CAS but with its own institutional rules which are tailored to the specific needs of e-sports  and which specify tighter timeframes for dispute resolution[31] can be established.

4. ‘Morality clause’ should be included in contracts that would allow for termination of an individual caught doping from sponsorship and playing contracts.[32] Also, there has to be a collective and conductive effort towards educating players about the risks and potential consequences of doping which will help in fostering an anti-doping culture among the players[33] and the industry must keep pace with the technological advancement and ensure that it’s anti-cheat softwares are up-to-date to keep a check over ‘mechanical doping.’

In the 6th Olympic Summit, 2017, the International Olympic Committee held that competitive e-sports could be recognised as a sporting activity provided it must not infringe on the Olympic values and there must be existence of an organisation guaranteeing compliance with the rules and regulations of the Olympic Movement (anti-doping, betting, manipulation, etc.).[34] So, taking into account the fact that professional e-sports are at a critical juncture in the quest for growth and credibility,[35] it is important that it gets it’s regulation and governance right in terms of Olympic values to get recognised as a ‘sport’, which in turn will help it to get significant funding from Olympic Committee and governments, cooperation from WADA for implementation of anti-doping regulations and even CAS would not be hesitant to take up cases specific to e-sports industry, which will help the industry to effectively combat it’s doping issues.


We are moving towards an era where e-sports will become synonymous with any other traditional sport[36] and we all want to see e-sports flourish and avoid the widespread fallout recently witnessed in the world of cycling and athletics, from which the industry could take years to recover.[37] So, before the e-doping issues drift down too far in the tray, the industry has to bring it straight up to the top of the tray and put the integrity norms in place so that it is equipped to encounter challenges that it might face in its organic development and ensure that the ‘virtual playing field’ is truly a ‘level playing field.’

 

[1] John T. Holdon & Anastasios Kaburakis, The Future is Now: eSports Policy Considerations and Potential Litigation, 27(1) JLAS 46, 46 (2017).

[2] Giulia Zappaterra ET AL., The Concept of eDoping in eSports- Cyber Security as a Safety Measure, Enforcement and Sanctions in case of Non-Compliance, Lexology (Apr. 4, 2019), available at https://www.lexology.com/ library/detail.aspx?g=b3abb0a a-72da-4d26-9ad8-d5ce8204d7c1.

[3] Mukul Mudgal & Vidhushpat Singhania , Doping-The Plague Of Sports, Law & Sports In India Development, Issues And Challenges  115 (2nd ed. 2016).

[4] Mark Lebbon, An Australian Perspective of the E-Sports Industry and it’s Core Legal Issues, LawInSport (July 10, 2018), available at https://www.lawinsport.com/topics/sports/item/an-australian-perspective-on-the-esports-industry-and-its-core-legal-issues.

[5] Id.

[6] David Howman, Speech by WADA Director General, David Howman, Challenges to the Integrity of Sport, Melbourne, World Anti Doping Agency (Oct. 15, 2015), available at https://www.wada-ama.org/en/media/news/2015-10/speech-by-wada-director-general-david-howman-challenges-to-the-integrity-of-sport.

[7] Supra note 4.

[8] Olswang LLP, Olswang on eSports: Regulation, Doping and Dispute Resolution, CMS Law-Now (2015), available at https://www.cms-lawnow.com/ealerts/2015/11/olswang-on-esports-regulation-doping-and-dispute-resolution.

[9] Josh Hunt, Behind the screens – Integrity concerns in esports, Lexology (Dec. 18, 2018), available at https://www.lexology.com/library/ detail.aspx?g=043e6eec-2b37-49f9-9ffc-a3aa331d4a57.

[10] John T. Holden ET AL., Esports Corruption: Gambling, Doping, and Global Governance, 32(1) Md. J. Int’l L., 236, 271 (2017).

[11] IeSF News, IeSF Taking It’s First Step Towards IOC Recognition, www.ie-sf.org (Apr. 15, 2016), available at https://www.ie-sf.org/news/iesf-taking-its-first-step-towards-ioc-recognition/.

[12] Ian Smith, The continued rise of eSports – Efforts to combat match fixing and improve integrity, LawInSport (Sept. 2, 2016), available at https://www.lawinsport.com/topics/features/item/the-continued-rise-of-esport-efforts-to-combat-match-fixing-and-improve-integrity.

[13] Preamble, WESA Code of Conduct And Compliance For Teams And Players,2017, available at http://www.wesa.gg/wp-content/uploads/2019/05/WESA-Code-of-Conduct-Teams-and-Players-Final-03052019-1.pdf .

[14] Supra note 9.

[15] Mary K. Braza ET AL, 2018 Esports Survey Report, Foley & Lardner LLP 13 (2018), available at https://www.foley.com/files/ uploads/2018-Esports-Survey-Report.pdf.

[16] Alan Baldwin, Doping: Targeted tests having an impact in esports, says Verroken, Reuters (April 18, 2019), available at https://in.reuters.com/article/sport-doping/doping-targeted-tests-having-an-impact-in-esports-says-verroken-idINKCN1RT2F3.

[18] Edmund Irvine-Fortescue, Match-fixing and doping in esports: the need for regulation, Mishcon de Reya (Aug. 9, 2017), available at https://www.mishcon.com/news/match-fixing-and-doping-esports-need-for-regulation.

[19] Supra note 9.

[20] Andrew Nixon ET AL., Esports uncovered – Part 3: The biggest risk factors facing the industry, LawInSport (May 23, 2017), available at https://www.lawinsport.com/topics/sports/item/esports-uncovered-part-3-the-biggest-risk-factors-facing-the-industry.

[21] Péter Rippel-Szabó, A practical guide to establishing the regulatory framework for a national esports federation, LawInSport (March 25, 2019), available at  https://www.lawinsport.com/topics/sports/ boxing/item/a-practical-guide-to-establishing-the-regulatory-framework-for-a-national-esports-federation?category_id=163.

[22] Cody Luongo, ESI Gambling Report: Sex, drugs and esports, Esports Insider (Aug. 31, 2018), available at https://esportsinsider.com/ 2018/08/esi-gambling-report-sex-drugs-and-esports/.

[23] Id.

[25]Bird & Bird, Esports Disputes: Choosing your battleground, www.twobirds.com (Jan 1, 2018), available at https://www.twobirds. com/en/news/articles/2018/global/esports-disputes-choosing-your-battleground.

[26] Supra note 8.

[27] Supra note 18.

[28] Supra note 9.

[29] Ishaan Kulshrestha, From Couch to Stadium: The Rise of Indian Esports and the Need for Regulation, Young Bhartiya (June 4, 2019), available at https://www.youngbhartiya.com/article/from-couch-to-stadium-the-rise-of-indian-esports-and-the-need-for-regulation.

[30] Supra note 21.

[31] Supra note 8.

[32] Supra note 10, at 270.

[33] Kostyantyn Lobov, Doping in eSports – why the stakes are raised as the sector matures, MCV (July 24, 2015), available at https://www.mcvuk.com/insight-doping-in-esports-why-the-stakes-are-raised-as-the-sector-matures/.

[34] IOC News, Communiqué of The Olympic Summit, International Olympic Committee (Oct 28, 2017), available at https://www.olympic.org/news/communique-of-the-olympic-summit.

[35] Supra note 15.

[36] Rishika Mendiratta, A Primer on Esports in India – Analysis of the Governance Model, Khel Adhikar (2018), available at https://kheladhikar.com/2018/07/07/a-primer-on-esports-in-india-analysis-of-the-governance-model/amp/.

[37] Supra note 33.


This blog is a part of the RSRR Blog Series on E-Sports in association with Ikigai Law. By- Harsh Malpani, IVth year,Kirit P. Mehta School of Law, Narsee Monjee Institute of Management Studies, Mumbai

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