• Alexandre Amaral Filho

Brief Notes regarding e-sports as a sport in Brazilian Law

From the dim arcade stores to the domestic console Atari; from the afternoons and dawns playing with best friends to the online game room. From their origin, the games aimed at uncompromising and casual entertainment for the players. However, with the development of information and communication technologies, greater in the last decade, there has been an important reconfiguration of the games that have led "a simple game" to a competitive sport[1].

The professionalization of electronic games in competitions, with a large audience of online spectators, broadcasts in different media, commentaries and narrators, great cash prizes, etc., gave birth to the increasingly consolidated e-Sports as a cultural and economic phenomenon.

In 2018 the DOTA2 International Championship awarded a prize of USD$25.5 million; the 2014 Lol Championship, USD$4.5 million. Although the prizes still smaller than in large traditional sports competitions as Wimbledon and the US Open Golf (whose tournaments in 2018 were USD$43 million, respectively), League of Legends audience had reached 106.2 million viewers, compared with Wimbledon with 9.44 million. The most well-payed cyber athlete in the world, Kuro "Kuroky" Takhasomi, made $ 4 million in 2018. In fact, it's safe to say that e-Sports are already popularized and universal. [2]

The concept of sport is not limited to the development of large muscle groups or physical contact. Such "physical" criteria should not be preponderant to define what a sport is: it is cultural. After all, today it is not denied that chess, checkers, poker, backgammon, among others, although notable as practices that do not demand a high physical performance, are sports practices (recognized as Sports of the Mind). [3]

According to Larissa Jensen, "sport is a mutable social construction, that is, there is no absolute definition for the term." [4] Having said that, it is concluded that sports are a social and cultural construction and electronic games have long been inserted into the general culture as an extremely popular form of entertainment; the professionalization of the players is, therefore, an inevitable consequence - on which it is the duty of brazilian law to monitor.

Brazil 1988 Constitution of the Republic provides in the art. 127 as the duty of the State to promote sporting practices; the law that regulates the general rules on sport is Law 9.615/98 ("Pelé Law"), defining that "Brazilian sport encompasses formal and non-formal practices and obeys the general norms of this Law, inspired by the constitutional foundations of the Democratic State of Law." Thus, especially if one starts from the premise that sport is" social construction subject to change ", there is no doubt about including E-sports under legal regulation.

In this sense, André Carvalho Sica, for whom "[e]sport is any physical or intellectual activity that, through occasional or organized participation, aims to balance health or improve mental fitness, as well as provide entertainment to practitioners," argues that "From the point of view of conceptualization [e-Sport] is sport. And if it is a sport, it applies to Pelé Law. And it is also clear that it is a high-performance sport through professional athletes. It is the same as football, the same legislation".[5]

In addition to the normative consistency, Sica points out as evidence of a growing recognition of the E-sports some factors: the Brazilian Ministry of Labor granted work visas of professional athletes to foreign cyber athletes; the application, by case law, of the Pelé law for the relations between cyber athletes and clubs; and the existence of some bills of incentive to the sport referring to e-Sports approved by the Ministry of Sport. [6]

Although we leave for the next opportunity the approach to civil, business and labor reflexes, from these brief notes it is already possible to realize that the absence of specific legislation for e-Sports currently in Brazil does not show an obstacle to the recognition of it while formal sporting practice, which undoubtedly provides legal certainty for cyber-athletes, teams, and sponsors involved in this field of digital entertainment.

[1] JENSEN, Larissa. E-Sports: Profissionalização e espetacularização em competições eletrônicas. Dissertação de Mestrado em Educação Física, UFPR – Curitiba. 2017. p. 2

[2] JENSEN, Larissa. E-Sports: Profissionalização e espetacularização em competições eletrônicas. p. 97.

[3] http://www.espn.com.br/blogs/sergioprado/118454_poker-e-reconhecido-oficialmente-como-esporte-da-mente

[4] JENSEN, Larissa. E-Sports: Profissionalização e espetacularização em competições eletrônicas. p. 97.

[5] SICA, André Carvalho. In: Lei Pelé: 4 fatos que talvez você não saiba sobre os E-Sports. Disponível em: http://sportv.globo.com/site/games/noticia/2017/04/lei-pele-discussao-legal-4-fatos-que-talvez-voce-nao-saiba-sobre-os-e-sports.html

[6] SICA, André Carvalho. A equivocada submissão dos torneios à Caixa. Disponível em: https://www.migalhas.com.br/dePeso/16,MI291839,51045-eSports+a+equivocada+submissao+dos+torneios+a+Caixa

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