Esports Teams Should Owe a Fiduciary Duty to their Players

McKenna Parris
Tuesday, May 8, 2018

I.          Introduction
            The profession of esports is relatively new and with that newness comes a host of issues. The one which this paper will focus on is the vulnerability of esports players to the chance of players being taken advantage of by their teams. During my research I did not come across any other writing about imposing a fiduciary duty between esports team and their players, so this paper is taking the first attempt at imposing a fiduciary duty to esports teams and their players. Due to the lack of previous research much of this paper is based off my own theories. This paper will explain how the designation of a fiduciary relationship between the esports teams and their players is a logical way to stop the bulk of teams taking unfair advantage of their players. Fiduciary duties are generally invoked to protect people who lack the knowledge or power to protect him or herself. These duties are not only invoked based upon relationships, such as between attorneys and clients or doctors and patients, but also on an ad hoc basis. The relationship between esports teams and players is one which passes the test as being an ad hoc fiduciary relationship. Even if the argument is raised that a fiduciary relationship does not fit the esports team and player relationship there are other ways in which fiduciary duties can still be imposed on esports teams.
            In Part II I will briefly explain what esports are and how large of a market esports has made in the past decade. Further, Part II will explain who esports players are and the details of their relationship with esports teams which make a fiduciary relationship necessary between esports players and their teams. Part III will focus on two arguments; the first argument is that under the Burdett v. Miller standard of the formation of an ad hoc fiduciary relationship esports teams and players have a fiduciary relationship, the second argument is that under the economic realities test esports players are employees and would deserve some fiduciary duties under Matthew Bodies’ theories in his paper Employment as a Fiduciary Relationship. Finally, in Part IV I will briefly reiterate why esports teams owe their players a fiduciary relationship and why that is a beneficial classification.
II.        Background

  1. What are Esports, and Who Plays Them?

            Esports is the name colloquially given to “electronic sports” or more simply put playing video games competitively at a professional level. The world of esports is relatively new in comparison to other competitive sports such as football, basketball, or even poker.  Competitive gaming has been around for as long as gaming itself; video games breed competition amongst players. But it wasn’t until the late 1990s that competitive video games, what would later become “esports,” started to take a larger hold with the advent of PC ( desktop computer ) gaming.[1] The late 1990s and early 2000s was when large groups of people really started to come together to play video games for cash prizes.[2] In the years since esports has exploded into a huge, multi-million-dollar industry with a fanbase to support it.[3] Last year esports drew in over 258 million unique viewers, topping the NFL’s unique viewership of 204 million.[4] This industry is on track to continue to grow as more leagues are made and more people start to make teams to compete within them. Predictions expect esports to become a billion-dollar industry soon.[5]
            There are the “big four” of competitive esports games: Dota, League of Legends, CS: GO and Overwatch, but those are by far not the only big games in esports with dozens more being played competitively.[6] Most of the games popular in esports are team-based.[7] Each game has its own ‘league’ in which teams compete in numerous tournaments during their respective seasons.[8] These teams and leagues are, much like other professional sports teams, owned by people who are looking to make a profit off this burgeoning industry. The team owners include the same people who own NBA and NFL teams as well as wealthy investors from all over the world.[9] The players on these teams are usually young men in their late teens to early twenties. The trend as of late is to not let anyone under the age of eighteen play in tournaments, though such restrictions were not always true.[10] This is another way esports mirrors professional sports, where many young athletes start right out of high school.

  1. The Complex Relationship between Esports Teams and their Players

            To understand the issues involving teams and their players, we must first look at the lives of players. Often when players are on teams they are on very strict and regimented schedules. This will include their entire days being scheduled by the team, or rather the coaches who work for the team. Everything from when to exercise, when to practice, how much to practice, when players eat, when players attend public events, their romantic relationships, how often players are supposed to stream online, and where player’s live can all be under the control of their team.[11] The teams handle what tournaments players compete in, who the sponsors will be, who will coach the players, what sponsorships they have, and practically every other aspect of the player’s professional careers and daily lives.[12] Players allow this because the team structure is a far easier way in which to break into the lucrative field of esports, and doing it on their own their own is a nearly impossible venture.[13] Further, most of the players on these teams are young. Late teens and early twenties are the largest age demographic of players.[14] Often being on an esports team supplants college, as there is no time to do both.[15] Playing esports competitively are these player’s entire lives.
            As a new industry esports is rife with problems. The industry is experiencing growing pains far more public than traditional sports, thanks in part to internet and social media which allow players to share what is happening in an instant. But it is thanks to the internet that these practices can and are being fixed. Things such as outrageous contracts, abusive practices towards players, not paying players, and a slew of other problematic issues seem the plague the world of esports. For example, Team Paradigm players were refused any sort of insight into the financial records of their team and offered a contract in which their monthly pay was $1.[16] A League of Legends team was banned from competition after it was found that the team owners were not paying their players after matches.[17] There are countless examples of other bad practices such as teams threatening to sue players for leaving the team legally, teams and coaches being verbally abusive to players, refusing to repay promised expenses, and countless times where money simply never makes it to the players whether from winning tournaments or salaries.[18]
            Many of the issues mentioned above are left in limbo as the esports industry lacks the internal structure to provide a sweeping fix to these widespread problems. While better contracts, a player’s union, and better watchdog function by the leagues would undoubtedly help, another potential solution is applying fiduciary duties between the esports teams and their players. In the previous paragraphs I have explored the way that esports team’s owners, coaches and managers control a great deal of their player’s lives and day to day actions all for the end goal of winning tournaments and making money. All these actions taken by the teams allow for a formation of a fiduciary relationship. This paper will explore how the actions of esports teams have caused them to form a fiduciary relationship with their players, and why that is good for the industry.
III.       Argument
            This paper will look at two key arguments for why esports teams owe a fiduciary duty to their players. The first being that under the Burdett v. Miller standard, esports teams have held themselves out in such a way that a “special trust” relationship formed between the team and their players, imposing a fiduciary duty. The esports teams likely did not take any steps to dissuade this fiduciary relationship either when giving advice to the players on their teams. The second is that employers should owe fiduciary and quasi-fiduciary duties to their employees based on their employee-employer relationship. This is because under the economic realities test esports players are employees therefore esports teams owe them fiduciary duty under Matthew Bodie’s theory of employers owing some fiduciary duties their employees.

  1. Esports teams and players have formed a fiduciary relationship under the Burdett v. Miller Standard.
    1. The Burdett v. Miller Standard

            Esports teams and their agents hold themselves out to players in a way which causes the players to put their trust and confidence in the team, creating a fiduciary duty. A fiduciary duty is one in which the agent owes the principal the utmost “candor, rectitude, care, loyalty, and good faith.”[19] This translates roughly into the esports team owing duties of loyalty and care to the players. A fiduciary duty can be established by the parties’ relationship or arise out of a special circumstance on an ad hoc basis.[20] Here, I focus on fiduciary relationships that arise out of the parties’ special relationship as esports teams and players do not fit into one of the established fiduciary relationships.
            An ad hoc fiduciary duty can form in a situation which all the requisite elements are present. Under the common law this duty is imposed when there is a difference in the parties’ knowledge and or power in regard to the underlying action, which would cause the principal to be at the mercy of the agent’s expertise.[21] In Burdett v. Miller the plaintiff was told to follow the defendant’s advice when it came to what the plaintiff should invest in.[22] The plaintiff was a sales person who sought the advice of Miller, an accountant and professor whom she was friendly with, Miller gave Burdett advice and didn’t disclose his personal benefit in the investments Burdett was being told to make.[23] Nor did Miller tell Burdett to seek any sort of outside counsel regarding his advice.[24] The court found that if one person solicits another to repose trust in the first in a matter which the first person holds him or herself out as trustworthy and as an expert, and the other person involved who is not an expert accepts the offer and places their complete trust in the other that a fiduciary relationship is established.[25] This is the standard I will look at to determine if there is a fiduciary relationship between esports teams and their players.
            But as in Burdett, not every relationship where a person holds him or herself out as an expert will result in a fiduciary duty. Courts have found that ad hoc fiduciary relationships such as in Burdett and Mitchell v. Norman James Construction are looked at under the lense of whether the relationships are “confidential” or “special trust” relationships.[26] Whether one of these relationships exists is determined based on “one side having superior knowledge of the matter, […] or the other side having weakness, dependent or trust justifiably reposed on the other side.”[27] Factors that are used to determine the existence of one of these “confidential” or “special trusts” include degree of kinship, disparity in age, health, and mental condition; difference in education and business experience, and the extent to which the less knowledgeable person entrusted the expert with their affairs.[28] If a relationship does not rise to the level of “confidential” or a “special trust” then no ad hoc determination of a fiduciary duty will be imposed. Demanding that a special trust relationship be formed before determining fiduciary duty allows for a flexible formation of the relationship, without allowing the relationship to then form too easily.
            The Court in Burdett also stated that had Miller advised Burdett to seek outside counsel, explained the character and circumstance of the investment, disclosed his stake or explained his actions, a fiduciary relationship would not have formed.[29] This shows that an expert need only take similar actions to save him or herself from entering a fiduciary relationship, even if the abovementioned factors are met. An expert should not tell another person, who is unsophisticated in the business they are dealing with to take their advice on face value, or her or she risk forming a fiduciary relationship. The balance is tenuous since an expert may not want to risk losing the confidence of the other person, but the warnings protect both parties.
            Not everyone may agree with allowing a fiduciary duty to be imposed on an ad hoc basis. The argument that it would weaken the duties due to the wide range of relationships that may come into the fold of a fiduciary relationship is the most likely argument against, but it is also a red herring. The factors to be looked at for an ad hoc fiduciary relationship to be formed are extensive and need to be weighed against one another. Not to mention that an expert can easily protect him or herself by advising the other person to seek clarification or outside counsel when receiving important advice from them. An ad hoc determination of a fiduciary duty is not a way to trap an expert into having a higher set of duties to the inexperienced party, but a way for the inexperienced party to protect him or herself from an expert who does not have their best interests at heart but claim to. If an expert gives advice following the above guidelines, the expert will either not form a fiduciary relationship or not have any reason to be sued in the first place.

  1. Applying the Burdett v. Miller Standard to Esports teams and their players

            When applying the standards of Burdett v. Miller to the formation of ad hoc fiduciary relationship, esports teams will end up owing a fiduciary duty to their players. First, I look to see if there a fiduciary relationship between the parties. Since this is not the kind of relationship in which a fiduciary duty is automatically established, such as an attorney-client, guardian-ward, or trustee-beneficiary, we must look to see if the duty arises out of a special relationship. To do so we will first look to see if the Esports teams have superior knowledge over the players to the point that the players depend upon their team. Next, we will look at the factors supplied in Mitchell to see whether the factors weigh in favor or against a fiduciary relationship. Finally, we will look to see if esports teams took actions to protect themselves against the imposition of a fiduciary duty.
            Esports teams have superior knowledge and power to enter and succeed in the world of professional esports. The area of esports is relatively new when compared to other competitive games such as football or poker and lacks the so-called ‘minor league’ or college-level in which to break into the professional league as other competitive sports do.[30] This makes it far more difficult for players to enter competitive esports either solo or with their own self-made teams.[31] Professional esports teams have a distinct advantage as many of the owners of the teams have also owned other professional sports teams, or are staffed and managed by people who know how to make the connections necessary to break into the leagues.[32] Often the coaches and team managers hired by esports teams are former players, lending a distinct advantage by having previously already entered and usually succeeded in esports.[33] Connections, money, and equitable experiences in professional sporting competitions held by the owners, and knowledge of the actual games by the managers and coaches they hire means that the esports teams have a solid foundation on which to base their advice to players. This is by no means a negative thing. But it does put players at a distinct disadvantage when they do not have the experience or connections in the field which the teams they sign on to, do. The appeal of joining a team is that when players join, all that expertise is supposedly used for their benefit and they no longer need to worry about how to do everything on their own.
            There is a large disparity in experience and knowledge between esports players and their team owners. Players often know of the tournaments available and the teams they will play against thanks to the information being widely available online. But setting up training regimes, finding sponsorship, registering for tournaments, being able to support themselves while they practice, and affording to travel to the tournaments are often part of being a professional esports player in which someone in their late teens or early twenties has little experience. This lack of experience and knowledge in the industry is enough to show that players depend on the team’s experience and knowledge and put their faith into the team to use that experience to help players succeed.
            Just because players put their faith and trust into the team does not automatically cause a fiduciary relationship to form. We look at the Mitchell factors to see if a special relationship has formed.[34] The first factor ‘degree of kindship’ does not apply, and therefore weighs in neither side’s favor. The second factor looks at disparity in age, health, and mental condition. There is usually a disparity in age between the players and team owners or coaches, as players are usually in their late teens to early twenties. This factor weighs slightly more in favor of there being a special relationship, but only because of the age factor. Younger plays are more likely to look to older coaches and team owners for advice and more easily accept that they are knowledgeable enough rely on their advice. Admittedly, because some esports teams are imposing a minimum age of eighteen to actively play on their teams this factor does not hold as much weight as it might before that norm was adopted.[35]
            The third and fourth factors are the ones which weigh mostly heavily in favor of a fiduciary relationship between esports teams and their players. The third factor is the difference in education and business experience between the parties. While it cannot be conclusively said that every player entering professional esports would has education than the esports team’s managers and owners, often playing esports competitively supplants college, or makes it so that players cannot go to school during their game’s season.[36] That coupled with the age of esports players makes them generally younger and less likely to have gone through college in comparison to the team owners and coaches. But education alone is not enough to make the factor weigh in favor of a fiduciary duty, as a lot of the skills necessary to succeed in esports aren’t degree specific, but experience based.[37]
            Business experience is where the esports teams have a much greater upper hand. As was discussed previously, many team owners have owned competitive sports teams before and have equivalent experience in similar areas such as gaining sponsors, advertising and organization travel.[38] This brings an added level of professionalism to the world of esports, but also creates an imbalance of experience between the team owners and their players. Esports teams further hire coaches who are former players, who already have gone through a lot of what current esports players are experiencing.[39]  The sheer amount of knowledge and experience on the side of esports teams is very likely to outweigh the experience and knowledge that players possess in those same areas. This causes the third factor to weigh heavily in favor of the formation of a fiduciary relationship.
            The fourth and final factor is the extent to which the less knowledgeable party entrusted the more knowledgeable party with their affairs. This factor too weighs heavily in the favor of a fiduciary relationship. Esports teams oversee often both the player’s personal and professional lives. Teams will try and prohibit players from having relationships, say when players can visit family, schedule practice eight hours a day, schedule when to live stream, and tell players when to exercise.[40] On the professional side the team picks sponsors, advertisers, events schedules, and the day to day lives of their players.[41] Taken together it looks like esports teams are given almost absolute control over their player’s entire lives. While this may not be true for every team there are enough reports of esports teams following similar practices to conclude that players entrust almost all their affairs, public and professional to the esports teams which the players sign on to. This makes it easy to conclude that the fourth factor also leans in the favor of a special trust relationship between players and esports teams.
            While the Mitchell factors weigh heavily in favor of esports teams owing a fiduciary duty to their players, the analysis does not end there. Instead we must look to see if esports teams are doing anything to protect themselves from forming a fiduciary relationship with their players. We cannot know what conversations and negotiations between esports teams and their players look like with impunity. We can only say that if esports teams advise their players to seek outside counsel, get second opinions, and do not implore the players to trust them without question that they may be able to stop a fiduciary relationship from forming. If esports teams do that, an ad hoc fiduciary relationship will not be deemed to have formed.
            Under the Burdett test, using the Mitchell factors, esports teams do owe a fiduciary duty to their players. A relationship of trust and confidence where the players put their trust in the esports teams undoubtedly forms considering the depth and involvement of the relationship between the team and players. Regarding esports teams and players as having a fiduciary relationship allows for the development of protections for esports players that do not exist currently. Esports lack other protections that sports like football have such as player leagues or unions, hierarchies in which to report abuses to, by-laws and regulations, and invested third-parties who oversee the industry. The industry while enjoying an explosion in profits and popularity still lacks the proper reporting structures and player protections that sports leagues like the NFL and NHL have developed. Finding a fiduciary relationship between esports players and teams would help to stop the abuses previously discussed by supplanting these industry-based protections until they can be developed properly.
            But even if an esports team does protect itself by advising its players to seek advice outside of the team and get second opinions, that does not mean that esports teams have absolutely no fiduciary duty to their players. Often the relationship between teams and players is an employee-employer relationship under other laws as well. The relationship adds its own complexity that may still cause fiduciary duties to form. In the next section I will show how esports players are employees of their esports teams rather than independent contractors under the economic realities test. Because esports players are employees they would qualify for the fiduciary duties that Matthew Bodies suggests should exist between an employer and their employee.

  1. Esports players are employees and should be owed some fiduciary duties by their esports teams.

            Esports players should be considered employees under the Fair Labor Standards Act (“FLSA”) when applying the “economic realities test” that has been articulated by the Department of Labor. As esports players would be considered employees, they should be owed some fiduciary duties by their employer under Matthew Bodies’ theory that employers should owe some fiduciary duties to their employees.[42] First I will show how esports players would be considered employees instead of independent contractors under the Department of Labor’s economic realities test. Next, I will explain the fiduciary duties that Bodie theorizes employers should have towards their employees and why these duties would benefit the world of esports.
            While esports teams may prefer their players be independent contracts over employees for the benefits that the status provides, such as falling outside of unionization, not being able to collectively bargain, and stopping team owners for owing certain taxes, the desires of the parties do not determine if someone is an independent contractor or employee.[43] Instead the relationship must be looked at under the six-part economic realities test proffered by the Department of Labor. The six part test is: if the work is an integral part of the employer’s business, if the worker’s managerial skills affect the worker’s opportunity for profit or loss, how the worker’s relative investment compares to the employer’s, if the work performed requires special skill, if the relationship is permanent or indefinite, and the nature and degree of the employer’s control.[44] If the factors show that the employer has a great deal of control and if the worker is economically dependent on the employer, then the worker is most likely an employee.
            Brian Murphy concluded that under the economic realities test, a generic esports player would be considered an employee and I am inclined to agree.[45] First, it is undeniable that the players are an integral part of the esports team’s business. Without the players there would be no team. Since it has been found that if the work is integral to the employer’s business, then the worker is an employee, this factor weighs in favor of esports players being employees. Second, I do not know if a generic esports player’s managerial skills come into play, but one can assume that based on the team hierarchy that a player’s managerial skills are not important to the player’s ability to profit. A player’s opportunity for profit or loss is based somewhat on his or her performance, but they will still be paid a salary while an esports team’s profits depends on how well the team places in tournament and other profits such as sponsorships and merchandizing.
            Esports teams generally supply the computers and other peripheral devices needed to practice and play their game of choice as well. This factor also weighs in favor of player’s being employees, but to a lesser extent. The relative investment of esports teams are much higher than their players besides basic supplies, as the buy-ins for an esports team can be in the millions of dollars.[46] This factor further weighs in favor of players as employees. Arguably the work that players perform is a specialized skill as playing video games competitively is considered a skill. But the Department of Labor focuses on if the worker’s business skills, judgement and initiative – not their technical skills, for example the actual act of playing the game, to determine if the worker if an employee or not. As was previously said, it can be assumed a generic esports player is not brought on to a team for their business skills but for their ability to play. This factor also weighs in the favor of esports players as employees.
            Whether an esports player’s employment is permanent or indefinite depends on the contract or agreement between the player and team. This factor weighs in neither side’s favor as it is fact-specific to each agreement. Some teams will last only the duration of a game’s season, other are more permanent. Finally, when looking at the employer’s control we need only reiterate the facts stated earlier. To look at a broad example, the Overwatch league has a detailed set of rules for esports teams and players which amounts to significant control for the team over when and how their players compete.[47] More generically, as has already been discussed, teams control when their players compete, how much they practice, the equipment they use, player’s day-to-day lives, and countless other aspects of a player’s personal and professional lives.
            Five of the six factors weigh in favor of esports players being employees of their teams. This means that esports players not only have the protection of the FLSA but could also benefit from the fiduciary and quasi-fiduciary duties suggested by Matthew Bodie. The duties that Bodie suggested are not the same fiduciary duties when compared to the fiduciary duty between attorney-client or other relationships previously mentioned. Instead Bodie suggests that the fiduciary duty implemented between employer and employee would be to “distinguish the appropriate pursuit of self-interest from the inappropriate pursuit of self-interest.”[48] Simply put, this fiduciary duty wouldn’t let businesses and their owners pursue their own interests to the detriment of their employees. The duty not to pursue self-interest to the detriment to employees is a duty well suited to esports teams and their players who put so much of their economic livelihood on the actions of their team.
            Bodie looks at varying levels of aggressiveness when describing what this fiduciary duty might involve. He also looks at the different ways in which these duties would unfold if the employees didn’t participate in the governance, and if they did.[49] For the relationship between esports teams and players, we focus on his discussion of employer fiduciary duties without employee participation. We do this because to have the players participate in their own governance would take away from their time acting as players and there lacks any sort of unionization or player-based negotiation communities. The owners should be able to retain ownership of the teams, and players should be allowed unionization and collective bargaining under their classification as employees. But for esports, the diminished fiduciary duties that Bodie explains comes with employee participatory governance model, forces esports players to split their attention further than the players already must. Esports players need to pay attention to their contracts, training, and playing – having to act as a watchdog and help make financial decisions on a day to day basis would be stretching the player’s too far.
            Despite Bodie’s clear push for employees participating in their own governance, he gives varying levels of how far his suggested duty of not pushing the pursuit of self-interest too far. The first level he gives includes the duty of good faith. That good faith duty describes not concealing business information to deceive an employee. [50]  His second level expands further to make employers act in the interest of the employee, and not take unfair advantage of employees.[51] Finally at its most expansive, Bodie describes a duty where employers could not exact huge profits via its business and only share “paltry amounts” with its employees.[52] All three levels give employees greater protection than the almost negligible protection that they have now.[53]
            If esports players are given the protection from unfair concealment of information, not allowed to be taken unfair advantage of, and included on profits the esports teams generate then most major issues between the esports teams and players would be decreased dramatically. As Bodie suggests most fiduciary duty traditionalists will balk at the idea. But none of the duties explained would drastically change the way that employee-employer, or more specifically esports team-player relationships would work. This does not take the power away from esports teams to make decisions and run a business as they see fit. Rather it simply does not allow esports teams to run a profitable team at the expense of their players. At the heart of the matter, that is why esports players should be owed a fiduciary duty by their teams. Players are in a subservient and vulnerable position, much like employees are as described in Bodies’ paper, and the fiduciary duties only seek to get rid of some of that vulnerability.
IV.       Conclusion
            The relationship between esports teams and their players is one filled with unequal power and potential for abuse. When considering how to fix this relationship for the entire industry to grow, the implementation of a fiduciary duty is a relatively simple and straightforward way to accomplish that. The implementation of this duty is easily done thanks to the unequal power and knowledge between players and teams, and the fact that players are putting all their trust and confidence into their teams to help them succeed. As this paper has argued these duties are not meant to weaken the abilities of teams to run a business as they see fit. But rather to promote a relationship in which the team does not benefit at the expense of the players.  In the absence of rules and regulations pushing for these changes, the imposition of a fiduciary relationship steps in to ensure that players are not being unfairly taken advantage of.

[1] See Bountie Gaming, The History and Evolution of Esports, Medium, (Jan. 3, 2018)

[2] Id.

[3] Id. (stating that in 2017 esports tournament award money amounted to $110.6 million, with one tournament alone having a grand prize of $24.6 million).

[4] See Brett Molina, Why watch other people play video games? What you need to know about esports, USA Today (Jan. 12, 2018)

[5] Matt Perez, Report: Esports to Grow Substantially and Near Billion-Dollar Revenues in 2018, Forbes (Feb. 21, 2018)

[6] See Top Games Awarding Prize Money, E-Sports Earnings (last accessed April 12, 2018)

[7] See Top Games of 2018, E-Sports Earnings (last accessed April 10, 2018)

[8] See Molina, supra note 4 at 1.

[9] See Paresh Dave, Owners of professional video game teams in a battle of their own, Los Angeles Times, ( June 11, 2016); see also Haydn Taylor, Dallas Cowboys owner buys majority stake in Complexity Gaming, ( Nov. 7, 2017)

[10] See PCGamesN, Overwatch League teams, structure, schedule and, everything else we know, PCGamesN (April 4, 2018)

[11] See Phil Hornshaw, eSports Aint’ Easy: Inside the Everyday Grind of Pro Gaming, Complex (Aug. 03, 2016)

[12] See Redbull UK, The Gaming Gaffa: How do you run an eSport team?, (May 30, 2013)

[13] See Ryan Morrison and Austin Hoffman, ROBOT CONGRESS : Episode 62 Breaking Into E-Sports, HeadGum (Jan. 16, 2018)

[14] ESPN Stats & Info, Average age in esports vs. major sports (Sep. 19, 2017) (finding that the average age if esports players is on average much younger than major sports players.)

[15] See Phil Hornshaw, eSports Aint’ Easy: Inside the Everyday Grind of Pro Gaming, Complex (Aug. 03, 2016)

[16] Yifan Wu, Boom E-Sports Industry Faces Contract Challenges, Medill Reports Chicago ( March 14, 2017)

[17] See Alex Walker, Riot Bans League of Legends Team for Not Paying Its Players, Kotaku (Sept. 22, 2015)

[18] See Nicole Carpenter, Esports organization Naventic allegedly owes its Heroes of the Storm players more than $50,000 in earnings, The OP (Nov. 15, 2017); see also Saira Mueller, King of Blades owner to file a lawsuit against his former Heroes team, The OP (March 21, 2016) (explaining that the team owner would harass players during practice, refused to reimburse players for travel costs that were promised, and attempted to sue the players for leaving the team despite no contract binding them to King of Blades.); see also Sasha Erfanian, Laying down the law: Legal professionals on how (and if) esports pros can take their org to court, The Score Reports (Mar. 7, 2017) (listing numerous different times when esports teams forced players to work in bad conditions, refused to pay them, and used threats of violence against players to coerce them.)

[19] Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. Ill. March 6, 1992); Restat 2d of Trusts, § 2 comment b.

[20] See Burdett, 957 F.2d at 1381.

[21] See Id.

[22] Id. at 1378.

[23] Id. at 1379-80.

[24] Id.

[25] Id.

[26] See Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 934 (1997).

[27] Id.

[28] See Zhang v. Layer Saver LLC, 2015 U.S. Dist. LEXIS 94877 *19 (N.D. Ill. July 21, 2015) (citing Mitchell v. Norman James Construction Co., 291 Ill. App. 3d at 934).

[29] See Burdett, 957 F.2d at 1381-82.

[30] See Ryan Morrison and Austin Hoffman, ROBOT CONGRESS : Episode 62 Breaking Into E-Sports, HeadGum (Jan. 16, 2018)

[31] Id.

[32] See Dave, supra fn. 9 at 3.

[33] See Eric Van Allen, Inside the Growing Coaching Industry Supporting League of Legends Teams, Compete (June 30, 2017)

[34] See Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 934 (1997).

[35] But see Kieran Darcy, Team Secret signs 13-year-old to Fortnite team, ESPN (April 25, 2018) (showing that some esports leagues are not following this trend and young teens are still being recruited for esports teams)

[36] See Hornshaw supra fn 15 at 4.

[37] As professional esports are still a burgeoning industry, there is no one set degree or educational background that makes esports team owners fundamentally more of an expert than their players. But education in finance, accounting, law, or business can all be educational degrees which help with the formation and running of a successful professional sports team so would likely be helpful to running a successful esports team as well.

[38] See Dave, supra fn. 9 at 3.

[39] See Van Allen, supra fn 14 at 9.

[40] See Zachary Zagger, Esports Still Struggling with Top Heavy Power Structure, Law360 (Feb. 24, 2017)

[41] See Dean Takahashi, Team Liquid’s Steve Arhancet tell us how to run an esports team, Venture Beat (April 28, 2017)

[42] See Matthew T. Bodie, Employment as a Fiduciary Relationship, 105 Geo. L.J. 819 (2018).

[43] See Brian D. Murphy, eSports Raise Labor Law Issues for Teams and Players, Entertainment Law & Finance News Letter ( Jan. 1, 2018)

[44] See Michael Marr, Independent Contractor or Employee: Do you Pass the “Economic Realities” Test?, LexisNexis Legal Newsroom (Aug. 12, 2015)

[45] See Murphy supra fn. 42 at 14.

[46] See Eben Novy-Williams and Joshua Brustein, To Buy Into This Video Gaming League, It’s at least $10 Million, Bloomberg (June 1, 2017)

[47] See Murphy supra fn. 42 at 14.

[48] See Bodie supra fn. 41 at 14.

[49] Id. at 862-870.

[50] Id. at 866. 

[51] Id.

[52] Id.

[53]  Under Bodie’s suggestions many more employers would be considered fiduciaries of their employees when the employees are vulnerable to the decisions of their employers. This is a change that would have to be accepted to create broader protections for employees and update the antiquated idea that only employees owe duties to their employer and not the other way around. I still believe that it is a forward-thinking way to not only protect esports players, but employees regardless of this change. I do not have time to go into this argument in this paper, but I understand that this suggestion would open this Pandora’s box of employer-employee fiduciary relationships.