Freedom of Association

Last night Mind Sports South Africa (MSSA) received an enquiry from an esports athlete who although wishing to participate in the trials being held at MSSA's North West Online Esports Championships to be held on 27 August 2022 was told that he was forbidden to do so by his team's management.

This once again raises the issue of the principle of Freedom of Association which is enshrined in the South African Constitution.

The right to freedom of association, which is one of the cornerstones of liberal democracy, stems from a basic human need for society, community, and shared purpose in a freely chosen enterprise. It is an essential feature of (liberal or social) democratic society, protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in a society

In this case, the athlete was unable to produce his contract with the so-called professional team.

Without being able to review the contract, which is apparently held by the team, and not available to the athlete to beshown to third parties, MSSA is unable to express a comprehensive opinion.

While it is true that every employee must have a copy of their own contract, only if there is a NDA already specified in such contract, may the contract not be shown by the employee to third persons. However, it should be noted that, even if the contract  does contain an NDA, the employee always has the right to obtain legal opinion.

Thus, in order to see if the employer is infringing on the professional esports athlete's rights apropos Freedom of Association, the contract would have to be reviewed as the contract may impose limitations on the athlete in terms of representation, participation in non sanctioned events, wearing of kit, receiving addditional remuneration, etc.

It is therefore vitally important that every professioinal player, when signing a contract, follows the following steps:

• Keep a copy of the contract, and
• Obtain legal opinion before signing.

It must also be remembered that a contract cannot be unilaterally amended by the employer.Any amendments must be agreed to by both parties.

So, if you are an esports athlete, and you do not ave a copy of your contract, please remember that you have a legal right to possess such. In fact, for an employer to not provide an employee with a copy of his/her contract is contrary to the Conditions  of Employment Act and is a criminal offence.

All it takes to have a copy is for you to say to your employer, "Please provide me with a copy of my contract!".

It is that easy...

Additional reading

2022 Calendar of Events

• Affiliation: Private Clubs
• Affiliation - School
• Notices: Student DOTA and CSGO teams off to Moscow, Russia with1,500,000 Rubles at stake.
• The basics about contracts for esports athletes.
• Professional esports athletes must register for tax.
• Winning prize-money as a professional gamer.

The basics about contracts for esports athletes.

Due care should be exercised when signing a contract.

All contracts should aim to provide players, clubs, organizers, and national federations with security, as well as outline the requirements of the  parties that enter into such.

There are basics to contracts of which all gamers should be aware.

In essence, an esports contract is like any employment contract. Where the athletes are employed by profit making ventures to earn monies (through appearance fees, sponsorships, prize-money), I am of the opinion that such contract must comply with the Basic Conditions of Employment Act. In such contract, the player's working conditions, pay, duties, and other pertinent details must be carefully spelt out.

It should also be noted that President Ramaphosa signed four bills into law in late November 2018 to give effect to a R3,500.00 monthly national minimum wage for most categories of workers, but did not announce a start date. 

The legislation will see a R20.00 compulsory hourly rate, which will be phased in at R18.00 an hour for farmworkers and R15.00 an hour for domestic workers.

As such contracts will provide for the following clauses:

• Company or organizational guidelines
• Ill health and leave benefits
• Other benefits
• Remuneration
• Sponsorship requirements
• The percentage the organisation will take from any potential tournament winnings
• Working hours

Generally though, contracts for esports athletes will be for a finite period which could be a year or even a few months, or even just for a specific tournament.

However, in the case of all contracts, the contracts are subject to South African law.

The contracts  themselves may too have to comply with more than just the law. For example, Mind Sports South Africa will not select players who have contracts that are in conflict with the contract that MSSA requires the members of the National Team to sign.

It is a requirement in South African law to seek advice from a legal professional before signing. Any queries must too be raised before signing and clarification must be obtained. 

All 'vagueness' must be resolved before signing.

Also read:

• 2019 Calendar of Events
• Freedom of association.

Winning prize-money as a professional gamer.

There is a specific inclusion in the gross income definition (the definition used as the starting point to determine an individual’s taxable income) which states that amounts received in relation to services rendered – even if it is a voluntary award – will be included in gross income and subject to tax.

Since a professional gamer would be considered to be an employee of the company for which he plays (see Contracts for eSports players: the basics) if such employee receives a reward related to his job function, it will be considered gross income as it is linked to services rendered.

Thus winning prize money in a competition if you are a professional gamer would  be seen by revenue authorities as being related to a job function.

Whether the prize could be cash or otherwise, the prize will still be subject to tax.

If it is a non-cash prize, the monetary worth of that specific item will be included in gross income and subject to tax.

Thus it stands to reason that all companies running professional teams need to register with the revenue authorities in regard to declaring their winnings and the withholding of tax on their athletes.

Can eSports clubs survive?

Offers will be made.

So far we have  seen FC Lausanne-Sport,Besiktas, Schalke 04, Valencia,  Manchester City, and Sporting Lisbon expand into the exciting realm of eSports.

As I stated in  my article "Would SA football clubs buy into eSports?" the reasons for them  to do so are that the football clubs can consolidate their brands into eSports (further enhancing their marketability and reach), but also allowing the football clubs to become dominant in other national federations, and possibly even influence another sporting code (IeSF) that may soon become a member  of the IOC.

In short it is a 'land-grab' where virgin eSports territory can be picked up for a song!

Even now, there are football clubs in South Africa surveying the eSports scene.

Their choices are to 'buy-out' existing clubs or just to poach the athletes themselves.

This poses a number of problems for existing clubs. The biggest problem is quite frankly, will the clubs not affiliated to football clubs survive?

The football clubs will burst into the scene with a level of professionalism as hitherto not seen by many existing clubs and athletes. Lawyers, contracts compliant with the law, academies, bargaining power, and monthly salaries will be their main weapons to entice eSports athletes away from the clubs for which they currently play.

With the best players stripped from existing clubs, the old names, if they cannot at least match the offers being made by the football clubs, will wither and die.

Corporate South Africa will prefer to deal with the football clubs as they have an established track-record and support base.

Already we can see a huge re-alignment happening in the USA, Europe and Asia. It will spread to South Africa, it is just a case of whether South Africa's gaming scene is ready for it.

MSSA, South Africa's largest member based organisation, is not only ready for it, but welcomes such a development.

2016 MSSA Team Trials

Please note that as stated after each championship, the following teams/individuals qualify for National Team Trials:

1. Those that finished in the top three in the Online Schools Championships,
2. Those that finished in the top three premier positions in the 2015 National Championships in December,
3. Those that finished in the top three premier positions in any Provincial Championship for the period 4 June 2015 to 3 June 2016, and
4. Those that won a Regional Championship in the period 4 June 2015 to 3 June 2016.

All players that attend must be:

1. Fully-paid-up, and
2. Have a fully completed contract, and
3. A copy of a valid South African passport, and
4 If a minor, a copy of a valid unabridged birth certificate.

The Trials start at 9H00 and finish at 18H00.

Players may obtain the contracts from their clubs.

All entries must be done on the Google Drive pages.