Protection against dismissal for e-sports players?

Professional e-sports players are usually employees - but what protection do they have? Do forms of ordinary and extraordinary dismissals also exist in e-sports? What rules apply here?

In our fourth and last article in our series on gaming and e-sports, Dr. Alexander Willemsen takes a look at the peculiarities of dismissals in the e-sports sector.

1. E-sports: work or leisure?

E-sports can fundamentally (according to the case law on physical sports) be classed as work as opposed to just leisure activities if players primarily pursue an economic interest, such as earning a living, by exploiting their skills, and at the same time satisfy an economic interest of their contractual partner - the employer. According to the Federal Labour Court [Bundesarbeitsgericht, “BAG”], however, a sporting activity is not work in the legal sense if it is carried out as a playful activity or as an end in itself.

For professional gamers in the competitive sector, a mutual economic interest is generally assumed to exist and thus work in the legal sense; however, e-sports players often consider themselves to be freelancers, and thus not employees within the meaning of Sec. 611a (1) sentence 1 of the German Civil Code [Bürgerliches Gesetzbuch, “BGB”].

In fact, however, this is usually not the case. An employee is someone who, on the basis of a contract concluded under private law, performs work in the service of another party, under their direction and in a state of personal dependence. This is determined according to the actual circumstances and not according to the agreement reached.

Whether or not a person works under the direction of a third party and is thus deemed to be an employee depends on the circumstances in the individual case. In all events, we can assume in the case of professional gamers who follow extensive instructions in terms of strict training schedules and non-game-related activities such as sponsoring events, that they are working under direction and are definitely not freelancers.

2. Labour law protection

Classification as an employee opens up a broad spectrum of protection for professional gamers. Among other things, the German Unfair Dismissals Act [Kündigungsschutzgesetz, “KSchG”] applies. Although no specific labour law jurisprudence exists on the peculiarities of e-sports players to date, we can assume that the main principles of "analogue" professional sports can be applied to e-sports. Accordingly, certain restrictions apply when terminating the contract of an e-sports player.

2.1 Extraordinary dismissal

The possibility of extraordinary dismissal for good cause [“wichtiger Grund”] still exists. However, good cause cannot already be seen in a drop in performance or unsatisfactory performance at a competition, as no success is owed pursuant to the employment contract. The risk of a drop in performance is already sufficiently taken into account through the acknowledgement of the possibility to limit the term of employment contracts with e-sports players.

A good cause can, on the other hand, be clan-internal insults or physical clashes. Conduct that is detrimental to the club, doping and cheating can also justify an extraordinary dismissal.

In cases where e-sports players take or grant bribes, this is also generally considered a good cause for an extraordinary dismissal.

2.2 ​​​​​​​Ordinary dismissal

If no fixed-term contract has been concluded, the employment relationship can be terminated by ordinary dismissal. Please note that a unilateral termination clause in favour of the clan/team is invalid; the right of termination must always be open to both sides equally. Termination by the employer, i.e. the clan/team, must be socially justified under the conditions of Secs. 1 (1), 13, 23 (1) sentences 2, 3 KSchG (Sec. 1 (1) (2) KSchG).

2.2.1 ​​​​​​​Dismissal for personal reasons

A dismissal for personal reasons can come into consideration if e-sports players are no longer employable due to permanent injury or mental or physical illness. It is not sufficient if e-sports player are "permanently unsuccessful" or "unsuitable".

Dismissal due to performance deficits is only possible if e-sports players show considerable deficiencies, i.e. if they make full use of their subjective performance capacity, but nevertheless fall considerably short of the (justified) performance expectations of the clan/team over a longer period of time and a serious disturbance of the contractual balance is to be expected in the future. The requirements for this are high; it is not sufficient for the player to merely fall short of the average performance of gaming colleagues.

It will doubtlessly be particularly difficult in practice, especially in view of the dynamics of multi-person matches, to determine whether a case of poor performance exists that is so serious that a dismissal on personal grounds seems justified.

2.2.2 ​​​​​​​Dismissal for behavioural reasons

E-sports players may be dismissed for behavioural reasons if they violate their main or secondary contractual obligations. As this concerns controllable behaviour, in contrast to a dismissal for personal reasons, a prior warning usually has to be given.

Reasons for a conduct-related dismissal can be: refusing to work or disregarding justified instructions, insults, sexual harassment and physical conflicts, or racist and homophobic remarks towards teammates.

Serious doping violations justify an extraordinary dismissal and do not require a prior warning (see above). In the case of negligent violations, however, a warning is required. Refusal to take part in a doping test may also justify a dismissal for conduct-related reasons. In cases where the clan/team has tolerated, promoted or even demanded doping, such dismissal is excluded on grounds of the prohibition of contradictory behaviour.

In view of the speed of competitions and the discretionary powers of the e-sports players in the game, mistakes made during a competition do not normally justify a valid conduct-related dismissal.

2.2.3 ​​​​​​​Dismissal for operational reasons

Dismissal for operational reasons is also conceivable, but is likely to be extremely rare in e-sports. In cases where it is actually decided, for example, to have fewer players compete in a competition or to concentrate on different games than was previously the case, this type of dismissal could come into consideration as an exception. However, a number of problems arise in this case; for example, in the context of a possible social selection the employer may have to consider which position the respective players play and to what extent they are comparable to each other.

3. Conclusion

Professional e-sports players are usually employees and are therefore subject to protection against dismissal. In e-sports, a variety of scenarios are conceivable in which ordinary or even extraordinary dismissal may be justified. In practice, however, the performance of e-sports players is the most relevant factor, which is why - as is often the case in "analogue" competitive sports – employers tend to turn to fixed-term employment contracts, thus avoiding the problems of a possibly unjustified dismissal due to performance deficiencies.

Back to list