The Legal Implications of Performance Enhancing Drug Use in eSports

Performance enhancing drug (“PED”) use in eSports has long been an issue whispered about within the eSports community.  These PEDs are not steroids and human growth hormone as we know from other sports, but are instead prescription drugs known as psychostimulants or neuroenhancers.

These kinds of drugs (Adderall, Ritalin, Selegiline, etc.) are abused by players as a means of enhancing focus, calmness, or to otherwise act as a stimulant.

However, due to the lack of drug testing by professional eSports leagues and tournament bodies, there have been very few instances of confirmed PED use during matches. Unfortunately, there is now an example of such drug use.

On July 12, 2015, a Youtube video was posted where professional Counter Strike: Global Offensive player Kory “Semphis” Friesen asserted during an interview that he and his team took Adderall during a major tournament hosted by ESL, the world’s largest and oldest eSports tournament provider. The relevant portion of the interview is as follows:

Friesen: “The ESL [team communications] were kinda funny in my opinion. I don’t even care, we were all on Adderall [laughs]”
Interviewer: “Really? [laughs]”
Friesen: “I don’t even give a fuck, like its pretty obvious if you listen to the [team communications]. I don’t know, people can hate it or whatever.”
Interviewer: “Everyone does Adderall at ESEA Lan right?”
Friesen: “Yea”
Interviewer: “Just throwing that out there for the fans, that’s how ya get good

In addition to the disappointing language encouraging others to violate tournament rules and abuse prescription medications, such PED use can impact the player and team’s contractual relationships.

Many contracts, especially sponsorship agreements, contain morals clauses. This type of clause allows a contracted party the opportunity to cancel their remaining obligations under the contract should the other party act in a way that is harmful or damaging to its own brand.  The reasoning behind such a clause is that by cancelling the contract, a party can protect themselves from being associated with the brand damage caused by the other party. In the sponsorship context, this allows a sponsor to exit a sponsorship should the sponsee player or team be engaged in a scandal or otherwise illicit activity.

Although there has not been a reported contractual exodus in this matter like when Lance Armstrong was found to have been using PEDs, the use of PEDs in eSports can trigger a contract’s morals clause in the following ways:

  • The player does not have a prescription for said neuroenhancer, which is likely a criminal offense
  • The player illegally obtains a prescription, which is criminal
  • The player legally obtains a prescription which the athlete uses illicitly
  • The player legally obtains a prescription and distributes the PEDs to others, which is criminal

It is unknown whether or not Friesen and his team obtained the Adderall licitly and for a valid medical purpose. However, in the event that the individuals obtained the substance for an illicit purpose such as those described above, that action would likely be enough to satisfy a morals clause. Importantly, a morals clause can also be placed in a player-team contract, thus putting the players’ livelihood at stake should they utilize PEDs.

Additionally, the team itself could face legal backlash over its players’ PED use from sponsors, as sponsorship agreements routinely contain morals clauses.  Depending on how the morals clause is drafted in the team’s sponsorship agreements, the actions of all players (or even a substantial number of them) may be sufficient to trigger the morals clause and permit the sponsor to cancel the sponsorship agreement. As Friesen’s admission has caught the attention of many people in the eSports industry at large, time will tell if there is any sponsor backlash.

Although sponsors have yet to take action, the ESL has already begun to establish an anti-doping program in the wake of Friesen’s statements. The tournament organizer announced a partnership with the Nationale Anti Doping Agentur and the World Anti Doping Agency to help create an anti-PED policy and to implement and enforce said policy. However, unlike professional sports where such policies are collectively bargained between the leagues and the players unions, the ESL policies are being imposed upon the players as they are not unionized. The lack of player input raises the potential for serious players’ rights violations. Although little information has been shared publically about what ESL’s policies will entail, enforcement is to begin at the ESL One Cologne tournament this month. At the very least, one tournament provider is taking steps towards eliminating PED use in eSports.

Time will tell if ESL’s anti-doping program has an effect on eliminating, or limiting, the use of PEDs in the eSports industry while still respecting players’ rights. However, in order to more substantially limit the use the PEDs in the industry, other tournament providers will also have to implement anti-doping policies and procedures. Regardless of the policies in place, teams should keep in mind that any PED use can impact the sponsorships that they have worked hard to obtain, and thus discourage any PED use by its players.  No team or player would want to lose their contracts because a morals clause was triggered in an effort to gain a competitive advantage.  Even worse, potential sponsors or teams may be hesitant to sponsor or employ a player and/or their team due to past PED use.  Statements referring to taking Adderall as how you “get good” are not only irresponsible for encouraging activities that may cost players and their teams contracts, but also because they effectively encourage criminal behavior.

(Photo used under Creative Commons from chrisjtse)