Tiebreaker: An Antitrust Analysis of Esports

By Max Miroff

Electronic sports (esports) offers a novel case study in how antitrust analysis should approach multi-sided markets that rely on the ability of numerous entities to access intellectual property (IP). A game publisher’s IP in its game allows for permissible monopolization, but also creates opportunities for anticompetitive IP misuse. Tournament organizers, teams, players, broadcasters, spectators, and advertisers all need access to publishers’ IP to participate in esports markets. As publishers vertically integrate into the downstream market for esports content in their games, they rationally seek to minimize competitive pressure from other entities in the market. A publisher can do this by using its IP monopoly in its game to dominate the downstream esports market in its game by, for example, refusing to license broadcast rights to independent tournament organizers. This Note argues that in order to promote consumer welfare through market competition, antitrust law should restrict game publishers from using IP rights in their games to monopolize the downstream esports market for those games. Because multi-sided markets which rely on access to IP and blur the lines between producer, intermediary, and consumer are likely to grow, the stakes for effective antitrust analysis in these markets will only continue to climb.

Part I introduces the esports industry and overviews how antitrust law can be used to shape more competitive markets for the benefit of esports consumers. Part II provides an economic analysis of esports in order to define antitrust-relevant esports markets in which enforcement could be appropriate. Part III outlines the structure of a tying claim against publishers that use their IP monopoly over their games to acquire or maintain a monopoly over esports content produced with their games. Part IV contends that a publisher’s IP rights should not insulate it from liability for downstream anticompetitive behavior. Part V argues that antitrust enforcement would be superior both to the creation of an independent esports governance body, because such enforcement would facilitate market solutions rather than top-down rulemaking, and to the creation of a fair use exemption for esports, because such an exemption would be comparatively overbroad.

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