Preserving Fair Competition in Esports: How Should We View the Lifetime Ban Handed Out to Shyshko?

Introduction and Background

In its statement published at the end of last year regarding the disciplinary action taken against Alexey Shyshko, the Esports Integrity Commission (ESIC) pronounced that Shyshko’s actions had “tarnished the reputation of esports as a whole” and “threatened the very foundation of fair competition in esports”.^[1] ESIC’s public statement accompanied a lifetime ban for Shyshko and additional sanctions on teams and individuals associated with him.

This article considers an overview of Shyshko’s activities leading to the sanctions meted out, the role of ESIC and what conclusions can be drawn from this case amidst the wider context of preserving the integrity of competition in esports.

As the commercial profile of esports has grown and betting markets for the sector have become more popular and expansive, it is not surprising that the industry has had to confront the risk of betting-related corruption and match-fixing, as traditional sports have had to do. Since the first major scandal in South Korea in 2010, which resulted in twelve StarCraft 2 professionals being arrested over charges of match-fixing and illegal betting, there have been various incidents of varying degrees of severity. However, the lifetime ban handed down to Shyshko is an unprecedented sanction.

Court Grants TRO in NIL Lawsuit

By Andrew King on March 4, 2024 Posted in Amateur Sport, College Sport, Name Image Likeness (NIL)

As discussed in a recent blog post, on January 21, 2024, the Attorneys General for Tennessee and Virginia filed a lawsuit against the NCAA, arguing that a new set of NCAA rules governing certain Name, Image, and Likeness activities in college athletics were violative of Section 1 of the Sherman Act. In their complaint, the Plaintiff-states sought, among other forms of relief, “a Temporary Restraining Order (TRO) and a preliminary and permanent injunction to stop the NCAA from enforcing the [rules].”[1]

On February 23, 2024, the Court granted the preliminary injunction. The crux of the Court’s decision lies in its determination that the NCAA’s rules, which prohibit athletes and recruits from negotiating NIL compensation in certain circumstances[2], amount to price-fixing, stifling competition and depriving athletes of their rightful economic opportunities. In its 13-page memorandum, the Court remarked that:

Inside the English Premier League’s latest media rights deal: What does it tell us about the current state of play of the market?

By Mike Llewellyn on February 20, 2024 Posted in Broadcasting, European Sport, FIFA, Football, Media Rights, UEFA

In the wake of the announcement by the English Premier League (EPL) of the “largest sports media rights deal ever concluded in the UK”^[1] at the end of last year, this article considers key takeaways, as well as how this latest EPL deal compares to previous deals and those of other major international sports leagues.

Now the Work Begins: What’s Next for Women’s Football in 2024?

By Lucy Webster and Katie Smith on February 16, 2024 Posted in Football, Women in Sport

2023 saw further impressive growth in interest around women’s sport, with increased viewership in the UK across television, social media and in-person attendance.[1] Almost one million more people tuned in to watch a minute or more of women’s sport in 2023 compared with the previous record set in 2019.[2]

Women’s football is still dominating the field, attracting 74% of the total viewing hours of women’s sport. The Final of the Women’s World Cup was the most watched women’s sport event on television in 2023, and the whole tournament attracted 15.6 million new viewers who, according to research carried out by Women’s Sport Trust, did not watch women’s sport before the tournament began.[3]

Positive news continued in December 2023, when the UK Government endorsed every recommendation put forward in Karen Carney MBE’s review, Raising the Bar – Reframing the Opportunity in Women’s Football (the “Review”) (see our previous summary and comment here). The FA also released a response to the Review, hot on the heels of the announcement that the Women’s Super League (WSL) and Women’s Championship clubs had reached agreement that club-owned NewCo will operate the leagues, under new CEO Nikki Doucet, from the 2024-25 season.[4]

There is always more to be done to continue the upward trends. This article highlights the developments which we can be expect in women’s football in 2024, particularly following the UK Government’s response to the Review.

Demystifying the Athlete Biological Passport

By Henry Goldschmidt on February 14, 2024 Posted in Anti-doping, Discipline, Dispute Resolution, Rules and regulations, Tennis

Introduction

Following a three-day hearing before the Court of Arbitration for Sport on 7-9 February 2024, the outcome of Simona Halep’s appeal against her doping suspension is imminent and eagerly awaited. In September 2023, the former world number 1 tennis star was banned for four years by an independent tribunal for breaches of Article 2 of the Tennis Anti-Doping Programme (“TADP”)[1], which broadly mirrors the WADA Code. The 2019 Wimbledon champion was held to have committed anti-doping rule violations (“ADRVs”) in respect of two distinct (but inter-connected) charges:

the presence of Roxadustat[2] (prohibited anti-anaemia medication) in a urine sample collected during the 2022 US Open; and

the use of a prohibited substance and/or method during 2022 on account of irregularities in her Athlete Biological Passport (“ABP”).

Aside from being one of the most high-profile sportspersons to be suspended for ‘intentional’ doping in recent memory, the first instance proceedings were notable for the number of experts deployed (four on each side, some of whom presented diametrically opposed opinions) and that the International Tennis Integrity Agency (“ITIA”) had sought a six-year sanction on the basis that there were “Aggravating Circumstances”[3]. Ms Halep has vehemently maintained her innocence (blaming a contaminated collagen supplement called Keto MCT) but, aged 31, her career and reputation hang in the balance.

Tennessee and Virginia Are Challenging NCAA NIL Restrictions

By Andrew King on February 1, 2024 Posted in College Sport, Name Image Likeness (NIL)

A new lawsuit was filed on January 31, 2024, that could significantly impact the NCAA’s ability to regulate Name, Image, and Likeness (“NIL”) in collegiate athletics. Filed by the Attorneys General of Tennessee and Virginia in the U.S. District Court for the Eastern District of Tennessee[1], the lawsuit challenges certain NCAA restrictions of NIL payments as an illegal restraint of trade under federal antitrust law.

The NIL landscape was ushered in by a landmark decision from the United States Supreme Court, Alston v. NCAA. In Alston, former collegiate athletes argued that the NCAA violated federal antitrust law by placing limits on the education-related benefits colleges and universities can provide to their student-athletes. The Supreme Court determined that the NCAA’s rules limiting such benefits were unreasonable because they substantially suppressed and destroyed competition, thus violating a federal antitrust law known as the Sherman Act.

Importantly, the Supreme Court made it clear in Alston that the NCAA is subject to, and bound by, federal antitrust law, remarking that “[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate… And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”[2]

Name, Image & Likeness: New Class Action Could Determine Whether NIL Activities Are Subject To US Federal Law Prohibiting Sex Discrimination In Education

By Lauryn Durham and Sarah Rathke on January 22, 2024 Posted in Case review, College Sport, Discrimination, Diversity, Equity, Inclusion (DEI), Governance, Name Image Likeness (NIL), Rules and regulations, US Sport, Women in Sport

Women’s sports are on the rise, and so are the conversations regarding Name, Image, and Likeness (“NIL”) in connection with women athletes. NIL activities have created an exciting new area for college athletes, and with that the importance of equity in opportunities and support for women’s teams. The legal framework of NIL is evolving on a near-daily basis — many states are creating their own legislation,^[1] while discussions of a federal NIL law continue.^[2] With differing NIL laws and no regulatory or governing body over NIL activities, the question remains: How will universities and colleges ensure equity?

How Artificial Intelligence is Changing the Game of Professional Sports

By David Elkins, Lauryn Durham and Nicole Brenner on December 22, 2023 Posted in Artificial Intelligence, Data Protection, Gambling, Governance, Intellectual Property, Technology, Technology in Sport, US Sport

Our sister blog, Global IP & Technology Law previously reported that artificial intelligence (“AI”) is changing the landscape of all aspects of our modern economy. The world of professional sports is no exception. Emerging technologies are transforming the games we know and love. From player recruitment to athlete recovery, AI’s integration into sports is opening doors for optimized performance and real-time risk analysis. As more teams and organizations employ the use of AI, counsel should be aware of the ways their clients can and do leverage AI. A critical eye should focus on the relevant legal issues: including both state and federal regulatory developments, data privacy concerns, and how AI tools could potentially affect the applicable intellectual property (“IP”) rights. In this article we consider the relevant legal and regulatory framework from a US perspective.

All I Want for Christmas is Effective Sports Governance

By Molly McKenna, Andrew Bennett and Wayne Barnes on December 20, 2023 Posted in Case review, Data Protection, Discipline, Governance, Government, Law, Reputation Management, Rules and regulations, Sport England, Sports Policy, UK Sport, Uncategorized

At the start of this year, following his appointment as Chair of the UK’s Department for Culture, Media, and Sport (“DCMS”), Damian Green MP put sports governance firmly on the agenda.

This commitment came after the publication of the Whyte Review in June 2022 (the “Review“), which was an independent report into allegations of mistreatment in the sport of gymnastics led by Anne Whyte KC.

Sport England’s CEO Tim Hollingsworth and UK Sport’s CEO Sally Munday, the two individuals who commissioned the report, provided a joint statement following the Review, which included a commitment to “not rest until [we] have a sporting system that fully champions and enables participant and athlete wellbeing”.

Sports governance is a multi-faceted issue; systematic failings cannot be solved overnight. Effective and comprehensive investigations are needed to uncover the existing issues before remediation can take place.

As such, this blog will lay out five top tips for ensuring that all goes to plan when conducting a sports investigation.

Faster, higher, stronger. But also more global, sustainable and appealing to youth. A brief overview of how new sports are added to the Olympic Games programme.

By Jack Wood on December 4, 2023 Posted in Governance, Olympics, Rules and regulations, Sports Policy

For the first time in 128 years, cricket returns to the Olympics when it will feature at the Los Angeles 2028 Olympic Games (“LA28“). It has been a long leave of absence for the sport, which last featured at the 1900 Olympics in Paris, when Great Britain secured the gold medal against the host nation in the only match of the Games.

As announced by the International Olympic Committee (“IOC“) last month, baseball/softball, flag football, lacrosse and squash will join cricket as the approved “additional sports” for LA 28. But how exactly are new sports added to the programme for the Olympic Games and what considerations does the IOC take into account?