Fortnite player’s contract lawsuit shakes up esports, but it’s unlikely to be the industry’s ‘Bosman moment’

Gamers play "Fortnite" against Twitch streamer and professional gamer Tyler "Ninja" Blevins during Ninja Vegas '18 at Esports Arena Las Vegas at Luxor Hotel and Casino on April 21, 2018 in Las Vegas, Nevada. Blevins is playing against more than 230 challengers in front of 700 fans in 10 live "Fortnite" games with up to USD 50,000 in cash prizes on the line. (Ethan Miller/Getty Images)

  • Turner ‘Tfue’ Tenney sues his team FaZe Clan over contract
  • Tenney had to give up to 80 per cent of his personal sponsorship revenue to employer
  • But new investors from traditional sport are improving conditions for players

You’ve heard of Fortnite. It’s the most popular video game in the world. It made $2.4bn (€2.1bn) for its developer Epic Games last year and despite reports that indicate revenue is dropping, the game made Epic $203m in the month of May 2019.

Fortnite is consistently the most-watched game on streaming platform Twitch, and the vast majority of its watched hours come from individual streamers and private tournaments.

This is because Fortnite is not an esport like Overwatch or League of Legends. There are no franchises, no revenue sharing and no minimum salaries. Instead, the game’s competitive scene is a playground for influencers who generally care far more about Twitch subscriptions, YouTube ads and endorsements than winning tournaments.

As a result, the advantages of representing an esports organisation or team are relatively limited for Fortnite players.

The game’s most-watched player this year is 21-year-old Turner ‘Tfue’ Tenney. To get an idea of just how popular Tenney is, he consistently racks up more watched hours each week on Twitch than the entirety of the Overwatch League.

Tenney’s combination of skill and adolescent charisma has turned him into a global superstar in less than 12 months. Since signing with esports organisation FaZe Clan in April 2018 – which has over 10 million followers across Instagram and Twitter – Tenney has gone from a relative unknown to one of the most influential gamers in the western hemisphere with over 6.4 million Twitch followers.

Much like the majority of young gamers, Tenney signed his contract without consulting an agent or a lawyer. If he had, he may not have ended up with a contract that paid him just $2,000 per month to exclusively represent FaZe for an initial six months, followed by three-year optional extension [at the same wage] that was activated by FaZe.

To make things worse, the deal stipulated that Tenney had to give up to 80 per cent of his personal sponsorship revenue to FaZe and be classified as a contractor – he could be fired at any time without cause and received none of the benefits or protections an employee usually receives.

Outside of franchised esports leagues such as the Overwatch League and the League of Legends Championship Series, contracts like Tenney’s are common.

The ‘bro’ culture of organisations like FaZe – which is essentially a fraternity of gaming influencers and professionals – is incredibly attractive to children, teenagers and young adults.

Ryan Morrison, talent agent and founding partner of law firm Morrison Rothman, says most players treat their esports teams as extended families rather than business partners, and shy away from any form of legal representation. “I cannot tell you how many times a player fired us because of that,” he says.

FaZe Clan competes against ENCE during the CORSAIR DreamHack Masters semi finals at Kay Bailey Hutchison Convention Center on June 1, 2019 in Dallas, Texas. (Cooper Neill/Getty Images)

Taking a stand

But Tenney is not like most players. With no mutually agreeable way out of his deal until the end of October 2021, he became the first professional gamer to file a lawsuit against his own organisation on May 20, alleging that FaZe had committed illegal restriction of trade and was acting as his agent while unregistered.

He filed the suit in California, which has the most pro-worker labour laws in the United States. As a result, experts believe Tenney is highly likely either to win or to get a settlement. He is all but guaranteed to secure his release.

Tenney has received plenty of public support, not least because of the public outbursts of Richard ‘Banks’ Bengtson, the 27-year-old owner of FaZe. Three days after the suit was filed, Bengtson said: “I fkn [sic] helped him blow up and changed that kids [sic] entire life. The very least I could ask for in return is he stay loyal to me and the brand that gave him his first real shot. Like what? FaZe is what’s best for him.”

Bengtson also publicly admonished Tenney for communicating with FaZe via his lawyer: “Like seriously homie? You’re down the street from me. Let’s talk.”

“There are better owners for sure,” says Morrison, who represents Fortnite professional Justin ‘Kayuun’ Ha. “Andy Miller [co-owner of the NRG Esports team and the Sacramento Kings] has never called and asked me to direct a player I represent to take less money. Andy treats it like business. Other owners call me and explain that they’d rather talk to my client directly. Of course, I’m not going to let them do that.”

Bryce Blum, founding partner of esports law firm ESG Law, has spent the past six years representing teams and investors seeking opportunities in esports. He believes that most investors and top-tier esports teams aren’t looking to egregiously take advantage of young players.

“No one comes into esports and says: ‘I want to have an agreement that’s so one-sided that if it becomes public, the community is going to light me on fire’,” he says.

FaZe Clan during Counter-Strike: Global Offensive semi final game between Astralis and FaZe Clan on March 3, 2018 in Katowice, Poland (PressFocus/MB Media/Getty Images)

Forwards or backwards?

While FaZe has been figuratively lit on fire by the gaming community, opinion is split on whether Tenney’s decision to sue his way out of a bad contract comprises esports’ ‘Bosman moment’.

In 1995, Jean-Marc Bosman took RFC Liege, a Belgian football team, to court over their refusal to release him at the end of his contract. He won, and subsequently handed footballers in the European Union the freedom to leave their clubs at the end of contracts, as well as the leverage to force transfers while under contract.

Some believe that Tenney’s decision to sue will embolden other players to seek representation, demand better pay and gain more freedom from their esports organisations. Others believe it will have the opposite effect, with teams pulling rank and preventing players from seeking sponsorship deals outside their organisations, for fear of falling foul of labour laws.

Much of the media coverage surrounding the lawsuit has heralded it as the beginning of a player power revolution in esports – something that Morrison agrees with.

“To do the thing that Tfue did, it would ruin the average player’s career,” Morrison says. “Tfue is the biggest talent in the world some months, so he’s able to do this. He didn’t do this to save the world and be an advocate, but whether he likes it or not, he’s the voice of the little guy. Players are going to receive benefits as a result of this, and he should be commended for that.”

Blum strongly disagrees with this line of thinking. He believes that by invoking the California Agency Act – alleging that FaZe illegally acted as his agent by taking a cut of his personal sponsorships – Tenney’s lawsuit will scare teams into preventing players from controlling any of their own marketing rights.

“Right now, the way in which esports teams function is they pay bigger compensation than a player is worth and try to recoup that on the back of sponsorship revenue,” Blum says. “They are aggregators of inventory. They bundle inventory and they try to sell against it. If a player wants to get those rights back, that’s feasible, but they’re going to have to take a massive drop in compensation, because that’s the bulk of what teams are paying for right now.”

He continued: “It’s going to go back to where it was two years ago, before concessions were made for players. It’s a perfectly legally defensible condition for teams to take back all of these rights and prevent players from signing independent marketing deals. No one is challenging that under the law.”

Team FaZe Clan and team OpTic Gaming battle during Call of Duty World League at Anaheim Convention Center on June 16, 2019 in Anaheim, California. (Kevork Djansezian/Getty Images)

Representation void

The world of esports has long had a reputation for being a sprawling, unregulated land of opportunity and ruin. Stories of teams exploiting players or failing to pay their players are still more common than they should be. But in certain games such as Overwatch, League of Legends and Call of Duty, situations like Tenney’s are becoming a thing of the past.

Investors and executives from the world of traditional sports are remoulding the upper echelons of esports in their own image: revenue sharing, closed franchise leagues and – crucially for players – decent minimum salaries and guaranteed employee status at their teams.

The Overwatch League – a global franchise league – balances opportunity with security for its players, offering a $50,000 per year minimum salary at any given franchise, health insurance, accommodation, a retirement fund as well as a 50-per-cent share of prize money to be split with their team.

In the North American League of Legends Championship Series, the average salary has increased three-fold from about $105,000 per year to over $320,000 per year since it became a closed, franchise league in 2018.

But while an influx of executives from professional sports teams and broadcasters has swept esports over the past three years, esports has yet to reach the economic scale to attract the same kind of influx from talent and sports agencies.

Esports careers are often short, with players either burning out in their early 20s or ending successful careers before 30. Hundreds of young gamers break into an ever-increasing number of esports around the world each year, and there are very few agencies with the necessary scale and knowledge to efficiently acquire talent and represent them to a high standard.

“Certain games have reached an economic scale where having representation just makes sense,” Blum says. “The representative can justify spending the time because they can get compensated a reasonable level, and the player has enough at stake to want that kind of professional representation behind whatever it is that they’re going to sign and do.”

Blum believes that roughly half of the top 100 players in the three most-popular esports – League of Legends, Dota 2 and Counter Strike: Global Offensive – have professional representation.

“But if you ask what percentage of the best hundred players in the top 20 esports are represented? It’s going to be less than 10 per cent.”

“There needs to be more competition in the marketplace,” Morrison says. “Evolved [Morrison’s talent agency] can’t represent everyone forever. There’s ten thousand people with ‘esports lawyer’ in their LinkedIn description but, in reality, there are five attorneys in total who work on the talent side of things.”

Philadelphia Fusion play London Spitfire during Overwatch League Grand Finals – Day 2 at Barclays Center on July 28, 2018 in New York City. (Bryan Bedder/Getty Images for Blizzard Entertainment)

Security, opportunity, but no power

Despite so much potential for growth and change, there are two primary issues that will prevent esports players from clawing back a degree of control in the same way professional athletes have in the big four US leagues.

First, the global nature of esports makes unionising and collective bargaining next to impossible. The Overwatch League currently spans six different countries and is likely to expand. While an Overwatch players’ association is possible, it would have no right to collective bargaining and no legal right to strike because it would span so many jurisdictions.

Second, to play most traditional sports, one needs a field, a ball and a goal. Esports players need the intellectual property of a game publisher or developer and are thus always subject to their terms of service and participation.

Franchise leagues are taking full advantage of this, and while they offer security, minimum salary and employee benefits to its players, the contracts leave players with next to zero rights and freedoms.

In the franchised North American League of Legends Championship Series (NA LCS), players give up their image rights for life for no extra compensation. The game’s developer, Riot, also operates the league.

In the Overwatch League, players must agree to Activision Blizzard – the game’s developer and the competition operator – placing cameras in their team house should they want to create content, or a reality show.

Players either have to accept these terms or decide not to play in the top level of their chosen game. And while Riot has funded a players’ association for players in the NA LCS, those players have no ability to collectively bargain or strike.

With no franchise league and no recognisable esports structure to rely on for income, Fortnite players and influencers like Tenney have little-to-no security and can easily be taken advantage of by esports organisations looking to boost their own profiles.

However, players also have the option of going it alone and creating their own content empires around their play, and can play in independent tournaments that allow players to have their own sponsorship deals.

Predictably, this is something that Fortnite is looking to change. Mainstream popularity never lasts forever, and Epic Games wants to create an esports structure that will help it retain relevance after the Fortnite craze subsides. Its recent hiring of Nate Nanzer, the former commissioner of the Overwatch League, indicates in which direction it is looking to push.

For many young hopefuls looking to break into the world of competitive Fortnite, such a development will offer safety, security, but precious few rights outside of that. Whether that is better than the current wild-west landscape, where opportunity is plentiful but with no guarantees or protections, depends on who you ask.

What cannot be denied, however, is that neither model provides players with the combination of freedom and security enjoyed by European footballers and professional athletes in the top-four US sports leagues.

With help from lawyers, agents and investors, working conditions for esports players are improving. But without the ability to collectively bargain, strike or create their own professional breakaway leagues, the chances are remote that esports players will one day set the agenda in their chosen industry.

There will never be an esports player who takes their ball and goes home, because it will never be their ball.

FaZe Clan win their game in action during Esports Call Of Duty World League at Copper Box Arena on May 03, 2019 in London, England. (Luke Walker/Getty Images)

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