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Esports Visas: An Introduction to P-1 Visa Legal Issues For Professional Gamers
Originally Posted: Tuesday, June 20th, 2017
In the not too distant past, Asia was all about esports; but in the U.S., professional gaming was in the purview of Pepper Brooks and the gang over at ESPN 8, The Ocho.
Lately, however, esports is surging in the United States. Companies are sponsoring tournaments with sizable purses; leagues like the NBA and NFL are forming corresponding esports clubs. Proof: Prizes at the 2016 International Dota 2 Championship weighed in at $20 million — almost double the total payout of The Masters golf tournament. In short, the professional gaming economy is cruising upwards, at warp speed.
But something is vexing international esports athletes: Work visas to compete in U.S. esports tournaments.
Esports Visas in the United States: P-1
Esports continues to exist in a legal gray zone. For example: Are esports professionals considered “athletes” and can they qualify for P-1 visas (which are needed to legally participate in stateside esports tournaments)? The process to acquire a P-1 visa is not altogether difficult, but it’s also an inconsistent process. For example, there have been stories of esports athletes who were green-lit for 2016 tournaments, and then denied in 2017. There was also chatter about someone who was accepted in April for a tournament, and then rejected in August for another.
The P-1 visa system is unpredictable and inconsistent, which makes competing in the US difficult for many players. Visa applications can take months to be approved. Moreover, since there is no hard-and-fast rule on whether or not a professional gamer qualifies as an athlete, the decision sometimes falls to the opinion of one government worker.
Proving “non-immigrant intent” is the first hurdle to securing a P-1 visa. Applicants must demonstrate that they have permanent employment, relevant business or financial connections, or familial ties in their country. Why? Because officials wants to make sure that P-1 participants go home after their visas expire.
Visas For Professional Game Players: Esports v. Chess Community
The situation faced by many esports athletes got us thinking: How does it work for chess tournaments? After all, the US hosts many chess events, with participants from every corner of the globe.
We discovered that the US Chess Association offers invitations to foreign players, which streamlines the process for acquiring a P-1 visa.
Video game players, on the other hand, have to get a US employer to obtain an approved PQ petition from the United States Citizenship and Immigration Services (USCIS). Once officials approve the request, the player can then apply for a P-1 visa. Going through this paperwork process, multiple times a year, to compete in a handful of tournaments, can be exceptionally frustrating.
With the esports industry skyrocketing, both at home and abroad — not to mention rising viewership — the industry must figure out a way to make it easier for the world’s best video game players to compete on the US stage. If not, the U.S. esports programs may not be able to become contenders.
To bet, or not to bet…on esports? For several years, that’s been a question looming over the nation’s gambling capital — Las Vegas, Nevada. Nobody was sure where esports betting fell on the legality scale. Sure, it was happening — but in a decidedly gray area.
Things, however, are now clear; because as of July 1st, esports betting will be legal in Las Vegas. Ante up!
Nevada’s Esports (And Oscars?) Betting Bill
State representative Becky Harris sponsored Nevada Senate Bill 240 (“S.B. 240”), and Governor Brian Sandoval signed it into law. Esports legend Johnathan ‘Fatal1ty’ Wendel also played a role in the ratification process: He explained to politicians the importance of classifying esports gamers as athletes.
In addition to esports, S.B. 240 also opens the door for betting on entertainment awards shows like the Oscars and Grammys.
Want An Esports Gambling License? Go To The Nevada Gaming Commission.
Nevada’s esports gambling bill states: “The Nevada Gaming Commission shall, and it is granted the power to, demand access to and inspect all books and records of any person licensed pursuant to this chapter pertaining to and affecting the subject of the license.”
So, starting July 1st, 2017, the Nevada Gaming Commission (“NGC”) will be in charge of issuing licenses permitting the administration of parimutuel wagering and off-track parimutuel wagering. The NGC may also amend, adopt, and repeal regulations.
The NGC may request licensees’ fingerprints, in addition to information vis-à-vis their backgrounds, habits, and overall character.
Nevada’s Esports Betting Bill: 3% Operating Fee to NGC
The law also requires licensees to submit quarterly payments — 3% of the total amount wagered on any esports event — to the NGC. In turn, the NGC must give at least 95% of the collected fees to the State Treasurer for the State General Fund.
Connect With An Esports Agent and Attorney
Kelly / Warner is a full-service, boutique law firm that works with esports athletes on everything from contract negotiations to dispute settlement. We also work with teams and leagues. Interested in learning more? Please head over to the esports law section of our website.
NBA Announces 17 Teams Ready For 2018 Esports Launch
Originally Posted: Thursday, May 18th, 2017
The NBA2k league — a joint venture between the NBA and Take-Two Interactive — is on track to launch in 2018, with 17 out of 30 NBA teams signed on to participate.
NBA Teams Taking Part In Esports League
What teams are taking part in NBA2k? At the time of this writing, the Boston Celtics, Cleveland Cavaliers, Dallas Mavericks, Detroit Pistons, Golden State Warriors, Indiana Pacers, Memphis Grizzlies, Miami Heat, Milwaukee Bucks, New York Knicks, Orlando Magic, Philadelphia 76ers, Portland Trail Blazers, Sacramento Kings, Toronto Raptors, Utah Jazz, and Washington Wizards have committed to the league
for three years at $750,000 per team.
Brendan Donohue, NBA 2K managing director, enthused, “This is the first step in what promises to be an extraordinary league, bringing together the world’s best gamers and showcasing elite competition on an international stage. Our teams have expressed tremendous enthusiasm for esports, and we are looking forward to forming something truly unique for basketball and gaming fans around the globe.”
NBA2k league Early Adopters
In February, the NBA and Take-Two made a statement concerning their commitment to developing the league. And in following through, the NBA can claim the label “first sports league to jump on the esports bandwagon.”
Arguably, Dallas Mavericks owner Mark Cuban was the first NBA owner to get involved in the business end of esports. In 2015, he invested in esportsbook Unikrn, a leading esports betting website.
Everyone’s Excited About The Potential Opportunities
76ers CEO Scott O’Neil told ESPN, “It’s fun, we’ll be participating. There’s still a lot to learn from our perspective as to how the league will work and the infrastructure, where the revenue is coming from, how will the draft will work. But we’re excited; it’s a good opportunity to reach younger fans in a different way and hopefully incorporate them into our fanbase and vice-versa. We’re hoping to make Sixers, eSixers fans and bringing them into the Sixers fold.”
The Miami Heat esports organization is called the Misfits and its CEO Ben Spoont recently told ESPN: “2K is uniquely positioned as a professional sport video game title to be able to reach fans that are esport fans as well as NBA fans and 2K fans alike. The opportunity here is to be able to reach fans that are in vastly different markets but all with a common thread, which is their love of the NBA and/or video games.”
Connect With An Esports Agent
Kelly / Warner represents esports athletes and works with companies on esports business and legal issues. For more information, please visit our Esports law section.
And They’re Off! Esports Season Has Officially Begun!
Originally Posted: Thursday, May 18th, 2017
The Kiev major for Dota 2 climaxed with OG defeating Vitrus.pro 3-2. For their efforts, OG took home the first place prize of $1 million and Vitrus got a respectable $500,000, in what was the first of several multi-million dollar events this summer.
Over the next several months, League of Legends and CS:GO will have a plethora of major events, involving tens of millions in prizes, culminating with Dota 2 and International tournaments at the end of August.
Here’s a quick overview of what’s coming up.
League of Legends
The SLO Spring Cup and Mid-Season Invitational are both going on right now. As such, expect to see League of Legends regain the top spot in the sports betting market.
As mentioned above, the Kiev Major just concluded with $3 million total in prizes. Next week Shanghai hosts the StarLadder i-League Invitational and Manila Masters event will close out May for Dota 2.
The Intel Extreme Masters is taking place in Sydney right now, top prize is $200,000. June will feature the $1 million+ Esports Championship Series and ESL Pro League.
Finland will be hosting June’s World Championship Series with another $100,000 going to the winner.
Chat With An Esports Agent
Kelly / Warner law represents professional esports athletes. If you’re a professional gamer in search of an esports agent, or just some one-off legal help about a contract or other matter, let’s talk.
What do professional gamers need to consider when negotiating esports contracts? To avoid disputes, make sure everything is spelled out to the letter. And when we say everything, we mean everything — from equipment quality to pay schedules to break times.
Bottom Line: A good contract is one that’s easy to understand, yet detailed, so both parties know exactly what to expect from one another.
Esports Contracts: Things To Consider
So, what should professional gamers watch for when negotiating agreements?
Payment Schedule: Being a professional gamer means getting paid to master video games. The operative word being “paid.” Make sure all compensation details — from price to payment schedule — are clearly delineated in any contract you sign.
Equipment Stipulations: It happens! A team signs you. Then, on your first day, you discover that you’re expected to practice on a Commodore 128. (Hey, it could happen.) So, make sure equipment stipulations are part of your esports contract.
League / Team Rules: Before you enter into a partnership with a brand or team, make sure they clearly outline what is expected of you, on both behavioral, performance, and even ethical grounds.
Insurance: Are there insurance implications of which you should be aware? Find out and get any stipulations in writing. Moreover, consider medical insurance. Will the organization be providing it, in whole or in part? Does it include dental and vision? Does it come out of your salary?
Non-Compete: Are you allowed to participate on other teams? What about individual streaming channels — can you continue making residual income on platforms like Twitch? Find out the answers before you agree to anything.
Term Length: Before scribbling your John Hancock on the dotted line, make sure you’re comfortable with the duration of the contract terms. The industry is blowing up; things are rapidly evolving; so, ask yourself: Do I really want to stay with a team or sponsor for more than a year? Now, you very well may want to — just make sure you give it thought.
Esports Is Still Evolving…And So Is Esports Law
From the way fans watch matches to the types of injuries players sustain “on the field,” there are still many practical and legal esports issues with which the industry must grapple.
At this juncture, the best thing players can do is be fastidious about what types of contracts and agreements they sign. After all, you want to be fairly compensated for your skills and profit potential, right? Well, the first step in making sure that happens is a rock-solid contract.
College Esports: 21st Century Scholarship Opportunities
Originally Posted: Monday, May 15th, 2017
Currently, 34 U.S. colleges support varsity esports programs, compared to only 7 a year ago. That number will most likely double — if not triple — over the next couple of years as schools scramble to find a seat on the college esports train.
In the United States, varsity esports is new. As such, there’s no go-to blueprint for creating and managing clubs. Some esports teams are run by athletic departments, some by academic departments, and others by the office of student affairs.
That said, collegiate esports squads operate similarly to traditional teams: outstanding players earn scholarships, clubs pay coaches, and corporate sponsorship deals help supplement programs.
“Most of these are small schools,” said Kurt Melcher, who developed the first college esports program at Robert Morris University Illinois in 2014. “But I can promise you that somewhere on Notre Dame’s campus, somewhere on Northwestern’s campus, they’re asking how they can get involved.”
Move Over NCAA, Esports Has Its Own Collegiate Association
Until recently, college-level esports didn’t have a governing body and the NCAA wasn’t interested. So, last year, interested parties created the nonprofit National Association of Collegiate Esports (NACE). Currently, 31 U.S. college esports teams are members of NACE. That figure is likely to grow now that NCAA Division I schools are making room for esports programs.
The most recent member to join NACE is Stephens College, an all-women’s school in Missouri. They will have a 12 player squad, run by the IT department, set to compete in a collegiate Overwatch league. Additionally, all the players will receive partial scholarships.
College Esports Scholarships
Analysts estimate that the annual esports scholarship pool will rise to $7 million by 2018. From an academic standpoint, this is great for schools because the majority of cyber athletes focus on sciences, engineering, and math. In other words, by attracting gamers, they’re attracting brainy students.
NBA and NFL franchises are developing esports rosters as well, which raises the question: As leagues become more established, will gamers be drafted from colleges and universities, just like traditional athletes?
“The evolution of esports on college campuses is squarely on our radar,” said IMG College President Tim Pernetti. “There is a very real similarity in the passions that college sports fans and esports enthusiasts have for their schools.”
Got Questions For An Esports Consultant? We’ve Got Answers.
Kelly / Warner maintains an esports law division. Our team helps professional gamers with everything from contract negotiations to team disputes. Get in touch today to begin the conversation.
The Olympic Council of Asia announced that esports will be medal events at the 2022 Asian Games held in Hangzhou.
With close to 10,000 athletes competing, the Asian Games are the second biggest sporting tournament in the world after the Olympics.
Why the inclusion of esports? The Council stated that “the rapid development and popularity of this new form of sports participation among the youth” influenced its decision to include digital events at the Asian Games.
Though the full list of games has yet to be released, we do know that the 2018 demonstration matches will be FIFA 2017, a real-time strategy game and a MOBA (Multiplayer Online Battle Arena). Speculation is that MOBA games like DOTA2 and League of Legends will see some action because both have hundreds of millions of monthly online players.
The International Olympic Committee has yet to recognize the International Esports Federation. Nor has the Federation petitioned to become an Olympic event. But, could it happen? With the niche on the rise, it very well may.
In 2016, industry watchers estimated that esports had a global audience of over 200 million, with revenues exceeding $300 million.
In fact, not only are esports venues opening across the United States, but industry leaders are starting to invest, heavily, in the niche. To wit, Alisports — Alibaba’s gaming arm — announced a partnership with the Olympic Council of Asia. That’s in addition to the Chinese online retailer’s $150 million investment in the International Esports Federation — a sign of big things to come.
Kelly / Warner helps esports athletes and teams with all manners of business and legal needs, including, but not limited to, contract negotiations, endorsement deals, and litigation assistance.
Esports Venues Are Spreading Like Clones Across U.S.
Originally Posted: Tuesday, April 25th, 2017
Competitive gaming — a.k.a., esports — is exploding. According to Newzoo, an esports marketing research firm, in 2016, approximately 256 million viewers settled in for at least one live-streaming esports event.
And where there are masses, there is money to be made. From the players to the sponsors, all the way up to the venue owners, professional gaming pioneers — if things trend as projected — will soon be reaping huge rewards.
But as crowds continue to grow, promoters and sponsors are having a hard time finding stadiums large enough to handle the audiences. So, to remedy the situation, investors are developing esports venues in several major cities.
Esports Viewership By the Numbers
At the most recent IEM World Championship in Katowice, Poland, more than 173,000 passed through the turnstiles over two days, representing an increase of 53% over last year’s World Championship. There was also a record 46 million online viewers, breaking the 2016 League of Legends World Championship of 43 million.
Esports Venues Are Popping Up Everywhere
As mentioned, esports viewership demands have motivated real estate moguls to redesign existing sites and build new ones — specifically for video game tournaments.
The owners of TCL Chinese Theater, led by CEO Robert K. Laity, announced plans for a new CinemaCon esports venue adjacent to the company’s Chinese 6 Theater complex in the heart of Hollywood. It’s slated to open in the summer of 2017.
According to Laity, the new venue is just the beginning. In a recent interview, he explained, “What we are launching is just the tip of the iceberg. We see cinema operators working together as a global network of immersive MX4D esports theaters and becoming part of the fabric of competitive gaming. We are in discussions with sponsors, esports organizations and other cinema operators to join forces with the TCL Chinese Theatre as we bring this exciting capability to the world of online and live tournament play.”
What better spot for an esports complex than America’s over-21 playground, Las Vegas!? Millennial Esports is opening a 15,000 square foot new venue in the heart of downtown. There’s seating for 800 fans and participants, with 250 stadium-style seats in the main arena. And in true Vegas fashion, it’s open 24 hours a day, 7 days a week, 52 weeks a year.
Washington D.C. has long-served as the nation’s capital, and now the mid-Atlantic enclave wants to become an esports hub, too. With much fanfare, the city announced its official sponsorship of NRG Esports, the nation’s top esports team.
As the first city sponsorship of its kind, NRG’s founders and investors also include Sacramento Kings’ owners Andy Miller and Mark Mastrov. Celebrity athletes like Shaquille O’Neal, Jimmy Rollins, and Alex Rodriguez are also involved. The group will be providing team logos, a fan website, and a boot camp practice venue for players and prospects.
Moreover, the city of D.C. plans to build an esports stadium. Doing double duty as both a gaming arena and Washington Mystics stadium, the facility will seat 4,200 people and cost $65 million.
According to Events D.C. Chairman Max Brown, “[It will] come online in late-2018, early-2019. Fully tailored and wired for esports.”
The Future of Esports
When asked about the rise of esports, Trent Miller got right to the point: “I’ll only say that more people tune in to watch the League of Legends Grand Finals than the NBA Finals or the World Series. Whether or not esports will overtake football remains to be seen. But as far as esports overtaking most physical sports, it already seems like it’s happening.”
Kelly / Warner works with esports athletes, gaming personalities, and teams. To learn more about how we can help people in the professional gaming world with everything from contract negotiations to conflict representation, check out the esports law section.
Esports News: Will China’s New Bill Proposal Hinder Aspiring Gamers?
The Perceived Problem: Too Much Late Night Tomfoolery!
According to reports, Chinese officials — and parents — are frustrated with about the amount of online gaming that goes on between midnight and 8:00 am. They’re terrified: Children are not getting proper amounts of sleep! Online gaming is akin to the 1880’s opium epidemic!
The Proposed Solution: Software Tracking Triggers?
How do Chinese officials plan to stop the insanity? By implementing an online gaming curfew. How? With software tracking. Chinese citizens must already use Government ID numbers to access certain websites. As such, it would be relatively painless to set up a monitoring mechanism, in conjunction with the existing identifying data, that would allow companies to kill connections of under-18 gamers after a certain hour. In fact, politicians want to fine companies for failing to do so.
China Favors Online Gaming Restrictions
China is known for its online gaming regulations. In fact, the country already has a law that strips in-game credits of users who play continuously for more than 180 minutes (3 hours).
With esports taking off — and becoming a lucrative career option — it’ll be interesting to see if Chinese officials make exceptions for professional gamers. In fact, if the country’s gamers want to stay competitive, they may want to start thinking about lobbying for such a clause.
Connect With An Esports Lawyer
Kelly / Warner Law maintains an esports legal practice. We work with gamers and teams — from around the world — on everything from sponsorship negotiations to internal team arbitration. Have a question for one of our esports law aficionados? Give us a ring or shoot us a message.
Tonight: Amazon Esports Tournament Highlights Show
Originally Posted: Monday, December 12th, 2016
Amazon is embracing esports.
On December 2, the online retailer, along with eSports Productions, hosted a casual gaming competition, which live-streamed on Twitch. The occasion marked Amazon’s inaugural foray as tournament host.
The Champions of Fire Invitational: Amazon Esports Casual Gaming Event
Sixteen game streaming celebrities gathered in Vegas for The Champions of Fire Invitational. With $100,000 up for grabs, participants battled in single elimination rounds of Disney Crossy Road, Pac-Man 256, Bloons TD Battles, 8 Ball Pool, and Fruit Ninja.
At Champions, “casual mobile games” took center stage. Aaron Rubenson, director of Amazon’s Appstore, explained:
“Competitive video gaming has seen huge growth, and we see tremendous customer value in expanding the tournament experience to include the casual mobile games played by millions of people today. The Champions of Fire Invitational will see some of the top gaming pros square off in the same fun games our customers can download and enjoy today from the Amazon Appstore.”
Who won the Amazon esports tournament? Find out on the highlights show, coming to a cable station near you, tonight, December 12th.
Amazon Esports Involvement On The Rise
In 2014, Amazon first signaled serious interest in esports by plunking down nearly $1 billion for the online gaming platform, Twitch.
In August 2016, via Twitch, Amazon acquired Curse, a gaming resource platform.
Breakaway — Amazon Game Studio’s first development venture that includes betting features and “deep Twitch integration” — hit digital shelves In September 2016.
Obvious acquisition is obvious: Amazon is making sure its esports foot hole is secure. Smart.
Kelly / Warner Law is a boutique law firm that maintains an esports division. Two of our attorneys work with professional gamers on contract negotiations, sponsorship vetting, team disputes and tournament logistics issues.
Online Gaming Threats: Chat Ultraviolence Leads To Jail
Originally Posted: Wednesday, September 7th, 2016
Can you land in legal trouble over online gaming threats? Let’s talk about the issue for two minutes.
Can I Go To Jail Over Aggressive Smack Talk During Online Game play?
Law enforcement officials treat criminal threats like the Supreme Court treats the Constitution — seriously. Plus, FBI identity and tracking tools can smoke the average person from a digital foxhole fairly easily.
How much time could you catch, if caught? Bodily harm threats could fetch a five-year prison sentence; property damage, two years.
When Does Trash Talking Become An Actionable Threat?
The second someone implies, or outright threatens to abuse, rape, stalk, hit, or kill, the legal line has been crossed. Play it safe: keep your smack talk about the match.
Some people make good on their threats. If anybody starts polluting chats with creepy posts, pick up the phone and call your local precinct; they’ll hook you up with the nearest FBI contact, who willtake the matter very seriously.
Unsolicited advice nugget: if you plan to go pro, there’s a worldwide audience to worry about. Past statements can — and often do — come back to haunt — especially in today’s digital thunder dome. Don’t let online gaming threats destroy your career.
Can you give me an example of someone who has been arrested for online gaming threats?
Authorities arrested a 28-year-old Heroes of the Storm player (who allegedly also runs a Facebook account called ‘tedbundyismygod1’) for littering the game’s chat — and his Facebook — with ultraviolence threats including:
“I will bomb the new york twin towers [sic]”
“You make me want to shoot up an elementary school;”
He also threatened to “rape and kill” children.
Other players reported the disturbing posts on July 7th; by July 12th, authorities had the alleged culprit in custody.
What should I do if someone threatens me, via chat, during a match?
The same rules apply to online gaming as they do airports: If you see something, say something!
Let’s be frank: unhinged people carry out threats. If somebody starts polluting chats with creepy posts, pick up the phone and call your local precinct; they’ll hook you up with the nearest FBI contact, who will take the matter very seriously.
The Legal Lowdown On Pokémon Go Lawsuits & Marketing Tactics
Originally Posted: Tuesday, August 30th, 2016
The micropayment miracle, Pokémon Go (PoGo), currently holds the prize belt for “most popular game of all time,” and in short few months, it’s raked in over $210,000,000. Market experts expect revenues to hit $1.1 billion by year’s end, and savvy brick-and-mortar businesses are PoGo promoting — to huge success.
But, dear reader, don’t be lulled into submission! The Pokémon Go story is NOT all smiles and profits. [DUN, DUN, DUN!]
Oh yes, there’s the dark side of Pokémon Go. The side that’s spawned a PoGo disaster map; the side that’s raised get-off-my-lawn stakes to lawsuit level; the side that has people wondering, “Can I sue Pokémon or Nintendo for injuries sustained in the line of PoGo battling!?”
Is Pokémon Go ushering innocents down a dangerous personal injury path? And if so, can the game’s maker be held liable? Moreover, what legal aspects must be considered when promoting a business through PoGo?
Let’s examine this mobile gaming phenomenon, with legal scalpels.
Pokémon Go Lawsuits
Nintendo aims to “put smiles on people’s faces.” Yet, not every civilian is grinning over Pokémon Go. In fact, two households have definitely NOT caught the PoGo craze; instead…they’re filing Pokémon Go lawsuits — alleging nuisance and unfair enrichment.
Get Of My (St. Claire Shores, Michigan) Lawn
The Place: Wahby Park, St. Claire Shores, MI. A point of pride in a middle class enclave, Wahby is a public recreation area that doubles as a Pokéstop and Poke gym.
The Problem: People who live near Wahby aren’t happy. They claim Poké players are driving on private lawns, parking on public streets, tearing up gardens, and…looking at them! One resident lamented, “I don’t feel safe sitting on my porch!” Another referred to the situation as “a nightmare.” Someone else said she was “afraid to go to sleep,” and a man cursed his lack of prescience, lamenting: “If I knew [Pokémon Go] was coming, I’d have sold my place two months before it got here!”
An online anti-PoGoer warned the game was “ruining the quality of life for many Americans,” and a seemingly committed jingoist, who clearly isn’t a free market proponent, cautioned, “It’s a form of destrictive [sic] society, designed by the Chinese. And it’s a shame [Pokémon Go Players] have the power to vote, because it seems that they are easily brain washed. Which could lead this country to it’s [sic] destruction.”
Local Solutions?: Several residents near Wahby Park did seek redress with the city council — and the council did take steps to remedy the situation, like increasing signage, blocking off private roads, and increasing nightly police patrols. Apparently, however, the measures didn’t satisfy one couple who is moving forward with a Pokémon Go lawsuit.
The Lawsuit: One of the disrupted homeowners is suing Niantic, Inc., The Pokémon Company, and Nintendo Co. Ltd. for “nuisance and unjust enrichment.” Why unjust enrichment? Well, the plaintiffs feel that their lawn, being so close to a public park, has helped PoGo become a financial phenomenon. Plus, the lawsuit “seeks to stop designating GPS coordinates on or near private properties without permission.”
Local Opposition: Some Whaby Park Pokémon players are side-eyeing the plaintiffs. One young father interviewed for a local television station explained his viewpoint:
“For the majority, for the mass populous that comes here to play Pokémon, they’re here to have fun and enjoy the nature and meet cool people. We’re not trying to trespass anybody.”
Likely Outcome: Will the homeowners win? Believe it or not, they have a sliver of a shot. There’s a legal standard known as the “attractive nuisance doctrine,” which says homeowners can be held liable for a child’s death or injury if:
The landowner keeps something potentially dangerous on their property (i.e., broken car on lawn, trampoline, pool without fence (in some jurisdictions)).
The landowner knows children are around who might trespass.
The landowner knows that something on their property may endanger trespassing children.
The children are too young to recognize the risk.
The landowner can fix the problem at a reasonable cost.
The landowner does nothing.
Now, this lawsuit isn’t directly related to children harmed by Pokémon Go, but attorneys could argue that Niantic and Nintendo should have foreseen PoGo’s negative consequences. It’s a stretch, but not an impossibility.
That said, PoGo’s terms of service includes an arbitration clause that, in part, reads:
“[D]isputes between you and Niantic will be resolved by binding individual arbitration, and you are waiving your right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.”
Does that mean nobody can ever sue Niantic or Nintendo? Nope. Because also embedded in the ToS is a stipulation allowing customers to opt out of the arbitration clause, via email, within 30 days of downloading.
So, bottom line: who will likely win this Pokémon Go lawsuit? If we’re hypothetically trading Vegas odds, then sure, Niantic and Nintendo probably win this one. But you never know. At this point, we cab only be sure that the Courts and clerks are tackling the issue.
Pokémon Go Marketing: Ideas & Legal Considerations
Marketing gurus agree: If you’re a brick-and-mortar business that isn’t using PoGo to lure customers (pun intended), then you’re missing out on…well…money. As one Reddit user urged, “[Using Pokémon Go to promote] is the greatest investment you can make right now.”
So, how are business owners putting PoGo to work?
Bars, pubs and restaurants are becoming Poké gyms, then offering discounted drinks for members of the team that holds the gym.
Animal shelters are encouraging people to pick up dogs to walk while they’re out for Poké play, which has led to an increase in pet adoptions (Nice!).
Creating power stations for “phone refueling.”
Following the game and using social media to advertise when a rare Pokémon is in an establishment.
Are the promotions working? Heck yeah! As another Reddit user succinctly said, “[Pokémon promotions brought him] SO. MUCH. FOOT. TRAFFIC.”
“Put down a lure and watch the customers flow in,” advised another.
Tips To Avoid Pokémon Marketing Pitfalls
Account Security: Pokémon Go registration means handing over access to your entire Google account. Though Niantic does a wonderful job at keeping secure, the threat of a breach still lurks. Consider creating a new e-mail for your Pokémon Go marketing efforts in case disaster does strike.
Malware Concerns: Malware is starting to spread throughout the Pokéverse. Avoid risk by downloading from a reputable source.
Play Nice: Don’t try to sabotage a competitor’s PokéMojo. What do we mean? The app includes a Pokéstop and Poké gym removal form. So, let’s say Frank is in direct competition with Mary. They both own and operate ice cream parlors on Main Street. Being a gamer, Mary adopted Pokémon Go early and started using it to promote her business. It didn’t take long for her shop to become both a Pokéstop and a Poke gym. Frank, saw the amount of foot traffic Mary’s Poké-efforts garnered — and he didn’t like it. One day, when feeling particularly spiteful, Frank decided to sabotage Mary’s success by submitting a Pokéstop / Poké Gym removal request for Mary’s business. Frank’s actions could be considered unfair and deceptive marketing, and he could be fined — heavily — by the FTC. (And so can you, if you “pull a Frank.”)
Expect to read a lot about Pokémon Go lawsuits over the next several months. But the question remains: will the PoGo craze outlasts the lawsuits it spawns? Only time has the answer.