It happens that players dope or cheat in esports competitions. If the organizers learn about this, they sometimes resort to drastic penalties. Often the whole team is punished as a deterrent. The collective punishment thus pronounced often stands legally on shaky legs. This article explains why.

Reading time approx. 6 minutes (1100 words)

Whoever takes part in an esports competition is subject to the rules and regulations of the respective organizers. In addition to regulations on the course of the tournament and the amount of the prize money, these rules also contain concrete instructions for the players on how to behave. Doping, cheating and other misconduct are prohibited. Violations will sometimes be severely punished. Nevertheless, there have been isolated violations of these rules in the past.

In November 2019, the incident of the player Tim „timbo“ Israelewski from the Team SFD-Gaming became sadly known. He is said to have cheated during a game in Division 2 of the German speaking 99damage league. The scam was discovered and the league management excluded the player from the current competition and banned him for life. His team was also disqualified and forced to relegate.

The league management issued a so-called collective punishment. In simple terms, the whole team is punished for the misconduct of one or more individuals. Collective punishments lead to the fact that persons are held liable who are not accused of any personal misconduct. This is legally not without risks.

Fictitious case of collective punishment in esports

The legal problem of the collective punishment is explained on the basis a fictitious case: A CS:GO team from Hamburg takes part in a large tournament in Cologne. On the open street, a player from the Hamburg team insults and harasses the player of an opposing team from Munich. This happened without any recognizable connection to the esports tournament. The organizers then excludes the team from Hamburg including the player from the tournament. In addition, the team is forced to relegate. The team and the player are now considering whether the disqualification was legal. After all, they had to bear the costs for travel, hotel, participation fees etc.

When solving the fictitious case, one has to think in different small steps. First, the contractual agreements between the team and the organizer have to be examined. However, the players‘ penalty regulations are usually not included in the contract. Instead, they are contained in special esports regulations such as the one governing the ESL championship. With regard to the insult and harassment of the Hamburg player, the ESL rules and regulations contain the provision „Code of Conduct“ in section 1.7.5. Among other things, it states:

„All participants must behave respectfully towards other players. Insults and other unsportsmanlike conduct will be punished with penalties. This applies to offences in the game as well as in chats, messengers, comments and other media. Violations of the Code of Conduct may result in penalties, up to and including disqualification, depending on the severity of the case.„

How lawyers would argue

When applied to the case at hand, this provision states that the insult and harassment constitute unsportsmanlike conduct. The question is only whether this unsportsmanlike conduct is also covered by the provision, as it was not committed „in the game or chat“ etc. The lawyer commissioned by the organizer would argue that although it was written „in the game“, it was meant „in the competition“. This is because the regulation aims – which is true (!) – to protect the integrity of esports and fair play. Accordingly, the provision could also extend to insult and harassment on the open street.

However, it must be countered that the precisely chosen – and as yet unaltered – words in the provision are binding. Therefore, it is only about unsportsmanlike conduct „in the game or chats“ etc. Furthermore, the object and purpose of the provision is restricted to the protection of the integrity and fair play of esports and not additionally encompasses the protection of the reputation of esports in public. Therefore, the Code of Conduct does not apply during leisure time, but only during gaming operations.

Disqualification of the team as collective punishment

In the result the section 1.7.5 does not apply to insults on open streets and without recognizable connection to the esport tournament. For the purposes of this article, however, the opposite is assumed. In this case, it must be further examined whether the organizer was allowed to pronounce a disqualification. Section 1.8.3 of the rules and regulations states this among other things:

„Particularly serious offences (e.g. cheating) or excessive misconduct may lead to immediate disqualification. In the event of disqualification, the participant loses all prize money he has earned up to that point in the respective season and may not participate in the league in the following season.„

The regulation is relevant in two ways: On the one hand, a one-time unsportsmanlike conduct (without a criminal record and/or repeated offences) does not automatically constitute a particularly serious offence or excessive misconduct. On the other hand, according to section 1.8.3 only the player and not the entire team is to be disqualified. The provision does not even contain a collective punishment according to which a whole team could be disqualified.

ESL rulesbook: Collective punishment and bans

In addition to section 1.7.3 („Doping, Drugs“) and section 1.7.4 („Matchfixing“), a provision on collective punishments is also contained in section 1.8.2 „Bans“. Accordingly, temporary suspensions can also be imposed on entire teams and organizations. Like the player, however, the Hamburg team was disqualified and not banned, which is why the rule as a whole does not apply.

But even if the Hamburg team had not been disqualified but banned and thus remained in the ranking, collective punishments remain legally problematic. This is because the ESL rules are general terms and conditions („GTC“). And as GTC, the set of rules is also subject to a legal review, which is specifically intended for contract clauses (so-called GTC content review according to sections 307 et seq. German Civil Code, „GCC“). The GTC examination serves the protection of the consumers.

GTC examination: Liability for fault as a standard in the legal system

In the context of the GTC examination, many legal aspects have to be considered in connection with collective penalties in esports. Among other things, it has to be taken into account that the collective punishment has a penal character. Thus, it is particularly subject to the principle of legal certainty (section 307 para. 1 p. 2 GCC). Consequently, if a provision is not formulated in a clear and comprehensible manner, it is invalid. For the forced relegation of the Hamburg team, the consequence is that this constitutes a breach of contract on the part of the organizers, since such a penalty is not provided for in the rules.

The collective punishment could be opposed by a further GTC protection regulation (section 307 Abs. 2 Nr. 1 GCC). This is because the collective punishment is equivalent to a liability without fault, which is normally applied to dog owners and car drivers. This means that the other team members are punished for a behavior that they did not want or did not know about („punishment even without intent“). Closer to esports, however, is the liability for fault. Accordingly, a person must at least have known or wanted the misconduct in order to be held liable („no punishment without intent“). By the way, this is a general standard in our legal system.

Breach of own contract

Other legal aspects that must be considered in connection with collective penalties in esports could be listed. Therefore, a blanket legal assessment à la „Collective punishments are always legal or illegal“ would not be correct. The individual case must always be examined.

In any case, the above explanations have shown that some collective penalties in esports are legally on shaky ground. It is not uncommon for a legal examination to reveal that organizers violate the provisions of their own contract when they impose a collective penalty. A closer look can therefore be worthwhile.

Dr. Oliver Daum, Lawyer (Kiel, Germany)