There are different opinions about whether the games played on the computer can be subject to sports. However, eSports has been accepted as a sports branch in many countries now. The idea behind the acceptance of eSports as a sport is that it is regarded as mental gymnastics. Thus, sports is considered to include not only physical but also mental gymnastics.
A separate federation was established for eSports in our country: the Turkish eSports Federation (TESFED). TESFED's official website defines eSports as follows: "It covers all kinds of activities that are attended both individually and as a team, online or offline via an electronic device."
Having become a large industry in Europe, eSports also trails a large audience in our country. For this reason, it became necessary to regulate eSports player license, visa, and transfer procedures. This area was regulated by the eSports Federation Player, License, Registration, Visa, and Transfer Instruction published on 25.09.2018.
As is known, one can use the concept "professional" in the event that an activity is performed for profit. On the other hand, if it is done rather for entertainment and hobby purposes, the term "amateur" is used. In Turkey, the sports legislation defines and uses the concept "professional" only for the football branch. For this reason, studies dealing with only professional football player contracts are high in number in our law. It is a reality that football has a special place among all sports branches. This reality makes itself evident also in the legal and legislative fields. However, it is also a reality that there are other sports branches performed professionally in our country. The lack of the concept of professional in the legislation for other sports branches brings to mind some questions in terms of the wage element. This study will address the issue only in terms of eSports and discuss whether the wage is a mandatory element in eSports (player) contracts.
In terms of Labor Law, wage constitutes a mandatory element of the employment contract. So much so that it requires not only the existence of the wage but also a higher figure than a certain one (minimum wage). However, subparagraph (g) of Article 4 of the Labor Law numbered 4857, treats sports players as an exemption. In other words, the relationship between the player and the club falls outside the Labor Law's scope.
In the professional football player contract, "wage" is accepted as a mandatory element, and it is stated that it should be at least at the minimum wage level (Onur AKSOY, Profesyonel Futbolcu Sözleşmesi, Istanbul 2010, p. 9). This is also seen as a necessary consequence of being "professional."
The concept of "professional" is not used in branches other than football. This situation causes one to make an inference that the wage element is not mandatory in other branches. It does not seem logical at first glance but looks reasonable on closer inspection. It is because the economic resources of non-football branches are very limited! While football clubs in the lower leagues have very serious economic resources, other sports branches can be exemplified with very few clubs that have economic resources to sustain themselves.
An examination of the issue in the context of eSports shows that eSports clubs do not enjoy adequate economic opportunities in our country despite a large audience's interest. One must use computers with the latest technology to engage in eSports. Providing the necessary technical means for the execution of eSports creates a heavy financial burden itself. Because this branch is still in its establishment phase, it does not seem possible to expect eSports clubs to make regular payments (salaries) to e-players.
"Wage" is not specified as a mandatory element in the Turkish eSports Federation Player, License, Visa, and Transfer Instruction. In fact, the following statements are included in the "Transfer Agreement," Appendix-5, which is one of the sample documents attached to this Instruction: "The above-mentioned player shall be entitled to participate in the activities with our club by obtaining a sports license under the terms and duration of the Instruction without any wage payments except for the coverage of compulsory expenses such as transportation, accommodation, materials, insurance, nutrition and training expenses incurred in relation to the competition."
It is understood from these expressions in the sample transfer agreement that the "wage" element is not considered compulsory for the eSports branch yet. More precisely, this expression shows that the eSports branch has not yet been adequately developed to make a wage contract.
An opinion in the doctrine states that the "wage" element is compulsory for the eSports (player) contract. However, it does not make an assessment about the minimum wage requirement. Still, it suggests that the wage can be paid monthly or annually. Therefore, it is understood to view the payment of less than the minimum wage as possible (See: Hakkı Mert Doğu, E-spor ve E-spor Hukukunda Sporcu Sözleşmeleri, AÜHFD, 69 (2) 2020: 443-453).
In our opinion, eSports contracts do not have to contain "wage” element because the eSports branch is still in the establishment phase, the lack of the concept of professional eSports in the legislation, and the necessity of eSports clubs to offer their players the latest technological means creates a high cost due to to the nature of the business. The Transfer Agreement sample in the Annex-5 of the Turkish eSports Federation Sportsman License, Visa, and Transfer Instructions also illustrates this. Undoubtedly, when professional eSports legislation is made in the future, it should stipulate that the wage element is mandatory for professional eSports (player) contracts.
This article is translated by LEGIS TRANSLATE.