The National Anti-Doping Act, 2022 came into force on 12th August 2022 after receiving the President’s assent with an objective to -“provide for the constitution of the National Anti-Doping Agency for regulating anti-doping activities in sports and to give effect to the United Nations Educational, Scientific and Cultural Organisation International Convention against doping in sport, and compliance of such other obligations and commitments thereunder and for matters connected therewith or incidental thereto.”
The National Anti-Doping Act, 2022 while recognizing the traditional sports does not take into account E-Sports which have been in existence, and globally recognized, for quite a while now. The E-Sports though recognized internationally are not so well regulated. There are several tournaments and championships that take place across different formats on a global level with prize money ranging in millions of dollars, yet it is not strictly regulated/ governed. E-Sports have a massive following thereby creating immense pressure on players resulting into them doping for better and improved performance. While there is a never-ending debate with respect to categorization of E-Sports alongside the conventional/ traditional sports and the governing regulations, it cannot be denied that E-Sports certainly require skills to compete and have lately been recognized by various organizations such as IOC, Commonwealth Games, Asian Games amongst others. E-Sports and online gaming have also been recently officially recognized by the Government of India; the Ministry of Electronics & Information Technology (MeitY) will be the nodal ministry looking after online gaming, the Ministry of Youth Affairs and Sports will be the nodal ministry for E-Sports, however, this is just the very beginning and there is no strict law for the same yet. In the time to come, E-Sports are certainly going to have a regulated regime, and in this case, it would be pertinent to have laws in place for effective implementation and organization of the same, and more importantly for the laws governing doping to promote fair competition. This article talks about E-Sports in light of the National Anti-Doping Act, 2022.
E-Sports (short for Electronic Sports) is a form of competitive gaming through video games and often takes the form of and can range from - popular team-oriented Multiplayer Online Battle Arenas (MOBAs) to single player – First Person Shooting (FPS), to survival battle royales (like the popular arena game BGMI), to virtual reconstructions of physical sports. Gamers compete in various tournaments which are organized by the platform owners themselves, or by the players and/or their clans.
E-Sports, however, have been in the gray area for quite some time now internationally owing to numerous differences and controversies. Whether E-Sports can be termed as a sport itself has been a topic of debate across the world since its recognition and sudden popularity. The International Olympics Committee (IOC) recently organized an Olympic Virtual Series to mobilize virtual sports, E-Sports, and gaming enthusiasts all around the world. The Committee further recognized this as a bridge for virtual and traditional sports. IOC has also confirmed that Singapore will be hosting the first Olympic E-Sports Week in June 2023. Further, Commonwealth Games organized the Commonwealth E-Sports Championship 2022 alongside the Commonwealth Games 2022 wherein India bagged a Bronze Medal in DOTA 2. Also, Asian Games 2022 featured E-Sports with games such as FIFA, PUBG, DOTA 2 amongst others. Therefore, it would not be incorrect to state that E-Sports have been recognized by the governing sports authorities and in the time to come, there will be a much more regulated regime for organization of E-Sports, perhaps at the Olympic level and it is certain to attain a significant popularity.
It was the South Korean Government that created the Korean Esport Association (KeSPA), which was the first body dedicated to videogaming and E-Sports regulation in the world. Starcraft, Starcraft II, DOTA were among the first few games that came up as E-Sports and gained a wide popularity and fanbase with an enormous prize pool. DOTA 2 as of today has a massive following with a prize pool in millions of dollars surpassing the prize money of some of the traditional sports. A number of the E-Sports events organized generally engross millions of viewers and make E-Sports highly profitable for corporate sponsorships thus skyrocketing their popularity. E-Sports and online multiplayer gaming saw a further boom recently during the period of Covid-19 with players streaming their gameplays.
E-Sports unlike other traditional sports are not that well-regulated for obvious reasons and there remain a lot of difference between the two. E-Sports coming under the domain of cyberspace do not have any strict boundary and as opposed to the traditional sports require one to have a good system configuration coupled with a fast internet connection – which yet remains to be a privilege across several parts of the world. There certainly are pros as well, i.e., one can play with any person sitting across the world and have also have the liberty to try out different formats of the gameplay. While traditional sports are static in nature and have the rules set as they are, E-Sports offer different challenges and are highly dynamic in nature. E-Sports, if one has the system requirements and a fast and stable internet connection, can be conveniently played as opposed to traditional sports which generally require a field like set-up/ adequate area.
Laws regulating E-Sports are still in the pipeline, however, while considering the global reach and recognition of E-Sports, it is surprising how there is no standard/ universal law in place governing the regulation of the same till date. In India, sports are essentially a State Subject and are placed under List II (State List) - while the Government of India has on 23rd December 2022 through an Extraordinary Gazette officially recognized online gaming & E-Sports (under multisport event) and the same are to be looked after by the Ministry of Electronics & Information Technology (MeitY) and the Ministry of Youth Affairs and Sports respectively, there is no strict law governing it yet and it would only come with time, rather considering the boundaryless nature of E-Sports, it would be a challenge placing it under the correct list under Schedule-VII of the Constitution as well. The notification dated 23rd December 2022 is going to help to differentiate between online gaming and E-Sports which was a much-sought differentiation by various E-Sports authorities and enthusiasts. In order to have an effectful implementation and governance of online gaming and E-Sports, the ministries will have to work closely due to the very nature of E-Sports. The official recognition of E-Sports through the notification dated 23rd December 2022 was a move duly welcomed by several interested parties as this is going to give a certain direction to the E-Sports regime in India and it has been widely perceived as a revolutionary decision which is going to put India on the global E-Sports map and will result in better gaming infrastructure in India, funding, and exposure to this billion-dollar industry.
E-Sports Federation of India (ESFI) is one of the non-profit organizations in place with an aim to: - represent, promote, and regulate E-Sports in India. ESFI is also a member of the International Esports Federation (IESF), Global Esports Federation (GEF) and Asian Esports Federation (AESF) which are some of the organizations operating outside on an international level for regulating E-Sports. Apart from ESFI, E-Sports Players Welfare Organization (EPWA) is also a non-profit organization that has been incorporated for ensuring the rights of E-Sports players in India. The regulatory landscape of E-Sports is going to be challenging as the same is primarily going to be an interplay of the Indian Contract Act, IPR Laws, Arbitration Act, Data Protection Laws, Doping Regulations, and certainly the IT Act & related rules.
E-Sports such as DOTA-2 & League of Legends have a popularity at par with some of the traditional sports and the same is, if anything, only going to increase with time. While there are organizations that govern their own events & tournaments, and have laws specific to that, an international organization and domestic organizations for the purpose of regulation E-Sports is very much needed.
E-Sports have also had an impact on the gamers who have undergone health issues – both physically and mentally. The teams have immense pressure from their sponsors to practice hard and perform well at these tournaments which lead to bodily pains, fatigue, and mental exhaustion amongst others, thus, promoting doping on part of the players to be able to perform better.
E-Sports & E-Doping
Doping, as understood generally in the sports means use of illegal/ prohibited substances to gain an unfair advantage over the opponent. E-Sports, just like traditional sports, have a lot on stake – from the reputation of the gamers to the prize pool, sponsorships, pressure from viewers, etc. Like the sportspersons in traditional sports consume substances to enhance their performance in terms of energy, stamina, power, it is the same in E-Sports, wherein, doping is termed as E-Doping and primarily takes one of the following two forms: -
Traditional/ Substance Doping: Traditional/ Substance Doping involves the use of drugs such as Adderall, Ritalin, Selegiline – which help the players to stay calm, focused, and be able to perform under immense pressure. These performance enhancing drugs reduce fatigue and improve reaction time in intense gaming situations.
Mechanical Doping: Principally involves the use of hacks, cheats, and additional modifications to the gaming system. These hacks and cheats may enable a person from being able to see across the walls to having unlimited supply of ammo, from having an auto-aim to having unlimited health, amongst others, depending upon the setup of the game. There have also been various types of Denial of Service (DoS) attacks during the crucial moments in the game which have resulted into the system crashing/ shutdowns. Modifications essentially involve a person adding instruments to the system that are not allowed as per the game rules and would give an undue advantage to the person.
As far as doping in E-Sports vs Traditional Sports is concerned, there is a significant difference between the two. For example, an athlete consuming a substance would regardless require immense training, however, if a non-gamer gets access to the hacks and cheats in any E-Sport, he can easily beat a seasoned player. Also, E-Sports being played in the realm of cyberspace are heterogeneous and fragmented, hence being able to detect the players who are doping becomes nearly impossible. While it is still possible to filter out the players who are using modifications and take actions against them, there is no regulation in place for catching players under the influence of substances in the present regime.
The World Anti-Doping Agency (WADA) is a foundation initiated by IOC to promote and coordinate the fight against drugs in sports. The IESF, apart from developing detained rulebook and competition regulations for various E-Sports – such as CS: GO, DOTA 2, PUBG Mobile, Tekken 7, amongst others, has also developed detailed anti-doping regulations along with WADA and the same apply to players competing under the ambit of IESF – which has paid adequate attention to protecting the health of players and to maintain the integrity of the games. These Anti-Doping Rules consist of 24 Articles and is a brilliant attempt to tackle doping in E-Sports, but, before having a set of rules, we need a common governing authority to regulate the conduct of E-Sports, and only then we will be able to implement these regulations properly across the regions.
Thus, so far as E-Sports are concerned, we need a stringent set of governing regulations/ guidelines on an international level to regulate the organization of E-Sports so as to maintain fairness and parity across everyone while keeping the health of the gamers in mind. It is only after E-Sports are regulated, it will further motivate the players, their parents, the sponsors, and the society as a whole to pursue this further. E-Sports have tremendous scope in near future owing to the technological advancement– the games will be highly complicated and futuristic in nature thus making the competition tough and certainly more popular.
The National Anti-Doping Act, 2022
The National Anti-Doping Act, 2022 has been implemented for the constitution of a National Anti-Doping Agency (NADA) to regulate the anti-doping activities in sports and to give effect to the United Nations Educational, Scientific and Cultural Organisation International Convention against doping in sport. India had ratified this convention on 07 November 2007. This convention was entered into force on 01 February 2007 and is the most successful convention in the history of UNESCO – the Anti-Doping Convention is the second most ratified treaty with 191 signatories. This convention has significantly helped to harmonize anti-doping legislation, guides, and rules to provide for a fair and equitable playing environment for athletes. While this convention has taken into consideration the traditional sports there is nothing in place with respect to E-Sports despite its wide popularity as discussed above. Prior to the enactment of the Act of 2022, anti-doping in India was regulated by the National Anti-Doping Agency which was set up as a registered society on 24 November 2005 under the Ministry of Youth Affairs & Sports, Government of India - with a mandate for Dope Free Sports in India. The primary objective of the same was to implement the anti-doping rules as per WADA.
The National Anti-Doping Act, 2022 is a detailed statute across 34 sections and dealing with all the aspects possible covering the Traditional Sports. Section 4 of the Act defines as to what would constitute Anti-Doping Rule Violations & Section 6 of the Act provides for the consequences of violation of the provisions. Further, Section 7 of the Act provides for constitution of a National Board for Anti-Doping in Sports & Section 14 provides for the establishment of the National Anti-Doping Agency. The National Board for Anti-Doping in Sports is responsible for ensuring the implementation of international obligations and commitments. The Board is further required to oversee the activities of the NADA and to provide recommendations to it with respect to complying towards the anti-doping rules. Section 16 of the Act provides for powers and functions of the NADA as per which it has the primary responsibility to implement the provisions of the Act and direct collections of samples, managing test results, and conduct test result management. The board inter-alia is expected to carry on research with respect to anti-doping, carry on investigation, sensitisation, coordinating and cooperating with WADA and other international organizations and federations. The act also provides for provisions with respect to the therapeutic use and the exemptions with respect to the substances, the doping control process, etc.
As per Section 23(9) of The National Anti-Doping Act, 2022, a person who is aggrieved by the decision of the Appeal Panel, may prefer an appeal to the Court of Arbitration for Sport (CAS) – which is an international body established in 1984 to settle disputes related to sport through arbitration whose headquarter is in Lausanne, Switzerland. CAS is an institution independent of any sports organization which provides for services to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world. This appeal to the Court of Arbitration for Sports will prove to be a quick and efficacious remedy to resolve sport related disputes and will further expose the Indian practitioners to Sports Arbitration, however, is likely to be expensive when independently preferred by the sportsperson.
This Act would further, as per Section 26, help in setting up more National Dope Testing Laboratory (NDTL) which will be highly beneficial for quick and efficient testing and will simultaneously promote research work with respect to the use of these substances.
While the National Anti-Doping Act, 2022 recognises the Traditional Sports and is certainly going to regulate the anti-doping laws in India thus promoting justice and fairness in the sports, it does not take into account E-Sports – the industry which is rising at an exponential rate, has gained a significant recognition and popularity in the recent years, and is a billion-dollar industry today.
The National Anti-Doping Act, 2022 does not anywhere account for E-Sports and will prove to curb down anti-doping limited to the extent of Traditional/ Substance Doping. Owing to the fragmented nature of E-Sports, implementing the National Anti-Doping Act, 2022 would be difficult with respect to E-Sports. The National Anti-Doping Act, 2022 was a much-sought legislation, and it will prove to be beneficial to promote fairness and equity with respect to Traditional Sports, however, the E-Sports remain unaddressed despite the popularity in recent years and the extent to which doping can take place– in form of traditional and/ or mechanical. Further, to develop laws relating to E-Doping in India, it is pertinent that the E-Sports are first regulated and recognized on an international as well as on a national level. Even though the notification dated 23rd December 2022 published in the Extraordinary Gazette officially recognises online gaming and E-Sports, we need a robust regime for governing the regulation of E-Sports in India as the same is going to be cross-boundary and multi-disciplinary in nature. The notification dated 23rd December 2022 is the first move by the Government of India in this regard and is certainly a major step in this regard which would give a direction to the billion-dollar industry, however, this is just the very beginning. While international organizations such IESF, AESF, GEF, etc., that have put in efforts to set out norms for the regulation of E-Sports, and while E-Sports have been recognized by authorities such as IOC, Commonwealth Games, and Asian Games, it is crucial to have a common set of rules and regulations in place throughout governing the same. The undefined boundaries of the cyberspace do make the regulation of E-Sports difficult, but it is pertinent to have these governed owing to the increasing complexity, interest, and the booming audience. Moreover, with the advent of Metaverse and its immersive cum interactive nature, there is going to be a revolutionary change in the technology, lifestyle of people, and certainly the gaming industry – thus calling for the laws strictly governing this space. It is perhaps only after proper recognition and regulation of E-Sports that we would be able to make laws governing doping in the gaming industry.
Authors: Abhinav Shrivastava is a Co-Founding Partner of GSL Chambers. Shivang Rawat is an Associate at GSL Chambers.