An Esports Attorney’s Wish List for Call of Duty Franchising

With the recent reports that Call of Duty franchises will be sold for $25 million, now is as good a time as any to take stock of the issues that have plagued the CoD community for years. The franchise system that Activision-Blizzard has created for the Overwatch League is surely portable, at least in part, to their other games. However, the foundation created for OWL benefitted from the fact that Overwatch was a relatively new game, creating a new community unto its own, with little time and means for roots to take hold prior to the league and its academy system forming. That’s far from the case with Call of Duty, with years of a largely unstructured esports ecosystem that has become a Frankenstein of excitement, public contract disputes, sneaker flexes, entire rosters being dropped after qualification, third party tournament systems, and rampant player poaching. The CoD community is truly a unique space in esports, though one that has never risen to the popularity of League of Legends or Counterstrike. At $25 million per franchise, Activision-Blizzard will have the money, and opportunity, to stabilize what has otherwise been an unstable ecosystem in its corner of the esports industry. Having worked with dozens of teams, players and influencers in Call of Duty, here are some of the things I’d like to see implemented to create a more legally sustainable industry:

1. Uniform player contracts. Player contracts in CoD range from the acceptable to the abysmal/unlawful, with many skewing towards the lower end of that scale. Standardizing contracts for franchise teams, as Activision-Blizzard has done successfully with OWL, would go a long way for creating legally enforceable, predictable, and more balanced rights for all parties involved. Standardized contracts does not mean that every offer from a team will be exactly the same, as schedules allow for certain commercial modifications to be made, but the non-commercial terms of the contract would be uniform. This offers the organizations involved predictability as far as rights are concerned, something they have long sought. Also, this offers the players a consistent understanding of their rights and responsibilities, where misunderstandings of such have created numerous public controversies.
2. Require employee status for players. CoD players have generally been classified as independent contractors in their contracts. Unfortunately, in many cases, this is legally incorrect given the scope of services provided to the organization, the manner in which the organization controls the players, the restrictions imposed upon the players, and the number of hours that said services are provided each week. Independent contractor status generally means that the players do not have access to healthcare benefits, retirement benefits, and are also not afforded the protection of federal labor laws (minimum wage, workplace restrictions, anti-discrimination statutes, etc.). Make no mistake, this is significant. Aside from obtaining substantially more legal rights and benefits by being deemed employees, players would also have a portion of their taxes withheld by their employer, reducing the burden of the end of year accounting that so many players dread. Additionally, the league is incentivized to require the employee classification, as it is only a matter of time before players sue their organizations as a result of their incorrect worker designation, and frankly, no new league wants to deal with that kind of negative publicity.
3. Maintaining and sanctioning an open division. Call of Duty has a longstanding semipro and amateur community, with several of those teams having clawed their way into the pro league at one time or another, and many players joining pro teams after building their reputations in open events. As robust of a semipro/amateur community that has been fostered over the years, it would be incredibly unfortunate to severely limit, or end, the opportunity for these many organizations to compete and potentially earn prize money in some fashion, even if that isn’t in the franchised pro league. Looking to Overwatch, many of these teams could find themselves participating in a Contender’s-like league, though the number of participating teams would likely be limiting. At the very least, if CWL Fort Worth is any indication of future plans, a larger Semipro system can coexist alongside a Pro system without intermixing the two in any fashion other than the venue. Regardless of the size of the Semipro structure, there should be increased league-side regulation over it. Many issues, including player tampering (poaching), breaches of contract, and inappropriate conduct, are rampant in the Semipro community as there is little to no oversight of the Semipro teams outside of individual events. The lack of oversight oftentimes means that organizations and players must resort to legal action to rectify any problems, though the matters are generally not economically reasonable to pursue. Bad actors are, largely, then able to get away with their problematic, and sometimes unlawful, actions. This fosters an ecosystem where both contracts and people are not respected, and certainly that is not a sentiment that Activision-Blizzard wants bleeding in to their franchised league when Semipro players eventually become Pros.

In conclusion, Activision-Blizzard has a real opportunity to mold the longstanding Call of Duty ecosystem into much less of a legally problematic area. Certainly, this will not be without its challenges, but developer-run leagues maintain enormous amounts of control to shift the ecosystem, and culture, of their games as they see fit because they control the intellectual property of the game. While utilizing some of the foundational elements of the Overwatch League, and taking into account the longstanding ecosystem that has developed in and around Call of Duty, Activision-Blizzard can eliminate many of the problems that have plagued the game’s community.