In recent days the world of eSports was "surprised" by the statements of the Minister of Sport, the former athlete Ana Moser, who in an interview with uol portal, when responding to journalist Demétrio Vecchioli, said she has no intention of investing in "electronic sport", which in her view is not a sport but an entertainment. To justify his position argued that the video game is not unpredictable, as it has a closed schedule.
Note that the discussion about the non-predictability of an electronic game raised by the Minister, or even if the simple use of a controller, joystick, mouse or keyboard can be considered a physical activity, has a great impact on the legal framework of the activity, that is , on which legislation regulates it.
The discussion about being sport or not can come through law that defines it, or even by majority understanding of sports organizations. But a simple definition would not solve in itself some of the problems that the "new" sport faces to fit the traditional national sports system.
On the definition of what sport is, this has been a challenge to teachers and doctrinaires; imagine this same challenge in terms of legislation and public policies, always full of diverse interests and prejudices.
For Luiz Roberto Martins Castro, "sport is a competitive physical activity, delimited by specific rules, with the human being as the main agent". The same author, later complemented by Ricardo Georges Affonso Miguel in his work "The Legal Framework of Electronic Sports", bring to light some elements that the activity must contain for characterization as a sport, which are:
(i) physical activity,
(ii) competitive character (performance and uncertainty of the result),
(iii) interpersonal character,
(iv) standardized and pre-defined rules,
(v) talent.
Going quickly through the elements, the issue of talent basically serves to differentiate sport from gambling; the existence of pre-defined rules for everyone to understand, respect and participate in the activity on an equal basis; the interpersonal relationship is in the sense of a dispute between people; the competition is for these people to seek a common goal and there is a winner according to the best performance; and finally, physical activity has to be a differential, either because of the great effort, or because of the prowess or subtlety of what today is called “technical gesture.”
After reflecting for some time I ended up understanding that Electronic Sport can rather be considered a Sport. I fully understand the difficulty of many, like mine at the beginning, to understand how that the activity of "playing video games" can be considered a sport.
The issue is even more difficult when comparing the physical activity of a swimmer or runner with that of a video game athlete. But if we start to compare it with the physical activity of a shooting athlete, who nowadays uses compressed air pistols, we will see that in the technical gestures on consoles, much more effort is made, more physical activity, than when using the pistol of compressed air. Here just to take a single example, not to mention electronic games in simulators where physical activity is not even questioned (rowing simulators, car racing, etc.).
But the Minister brought a new issue for discussion, perhaps not so new, but very little discussed, which is the issue of the supposed lack of unpredictability of an electronic game, because it has a closed programming, with protected source codes since the games, for the most part, are owned by third parties.
Indeed, this point raised by the Minister deserves a better look from the sports community. How can we ensure that the essential elements that characterize the sport, such as standardized and predefined rules, as well as performance with the uncertainty of the outcome, will not be violated?
Maybe with audits, controls, open source codes. But would the game owners be interested in that? It really is a point of much reflection.
Another point that also needs to be debated is the real intention or even need for video games to be defined or characterized as a sport. It would not be just a matter of "status", since in thesis it is better to be an "athlete" than a "video game player".
Of course, the issue goes through the legal framework, since being considered a sport, the environment is automatically regulated by sports laws, there thinking about laws to encourage sport, athlete scholarship, taxation, training and work contracts with athletes and their training and preparation routines.
But let's not forget that sports laws also require that the dispute settlement be via Sports Justice (STJD's, TJD's, CD's), that the Fan Statute also brings a number of requirements, such as the realization of a championship for running points. In order to be part of the National Sports System, Federations, Confederations, clubs and compliance with a series of bureaucratic norms of our traditional sports will be necessary.
And this lack of definition of the legal framework or even of its own legislation which, in my view, would be more appropriate, makes there a natural search of industry to take advantage of the best and most beneficial in national legislation. And that really deserves a quick and content legislative solution.
The gaming industry has its own characteristics and very different characteristics of the current Brazilian sports system, which makes it very difficult to incorporate into the existing system as if it were a new sport.
Thus, the use of traditional and doctrinal concepts that have tried for decades to define what is sport to justify the classification of video games as a sport does not help to solve the problems of the industry, since they, in many respects, do not fit (nor want to fit!) in the Brazilian sports system.
It does not need to be said here that electronic games are a gigantic industry that certainly needs proper legislative treatment so that it does not circulate through the loopholes of each of the laws governing sports, software, intellectual property, culture, etc.
We are living in an era when traditional sports are increasingly trying to get closer to the entertainment industry. Video games are taking the opposite path: from playful activity to pure entertainment, they are migrating, at a much faster speed, to a sports activity. We are still living in an era in which the two activities will merge, and that won't take long.
Felipe Legrazie Ezabella
Lawyer, Master and PhD from the University of São Paulo, founding partner of IBDD - Brazilian Institute of Sports Law, attending the second edition of the FIFA Diploma in Football Law.
