By Ellen M. Zavian, Esq.
(The following article appeared in Esports and the Law)
As a partner at Skadden Arps Slate Meagher & Flom LLP, Matthew M. Martino represents a wide variety of clients in antitrust litigation and advisory matters.
Beyond his antitrust expertise, he has handled disputes on behalf of sports leagues and their teams involving labor and employment, torts, bankruptcy, gambling, team relocation, intellectual property rights, contractual issues, and other legal matters. He also has counseled sports clients with respect to a variety of business practices, including league governance, licensing, sponsorships, merchandising, events, new media, broadcast rights, and ticketing.
Martino graduated from the University of Pennsylvania summa cum laude with a B.A. degree in Psychology. Following undergraduate school, he attended Yale Law School. He was President of the Yale Entertainment & Sports Law Association and an editor of the Yale Law & Policy Review and the Yale Journal on Regulation.
What follows is an interview with Martino.
Question: Did you play sports growing up and if yes, what sports?
Answer: Yes. I played baseball and wrestled, but alas I was not good enough at either to participate beyond high school. Playing sports as a child and teen, however, taught me the value of hard work, dedication, perseverance, and teamwork, lessons that I utilize every day in my legal practice. And it was a lot of fun. I also was a huge sports fan and watched all of the major professional sports, rooting for all of the Philadelphia teams (Eagles, Flyers, Sixers, Phillies) as I grew up in southern New Jersey, not far from the stadium complex in Philadelphia. It was one of the major ways I bonded and connected with family and friends.
Q: What was your first experience with video games?
A: When I was a kid, we had an Atari in our house, and I have many fond memories of playing games on it with my family. One particularly memorable game was Activision’s Decathlon, in which you competed in Olympic-style decathlon events. I recall that if you surpassed certain score levels, you could take a photo of the television screen with a Polaroid camera and mail the photo to Activision, and in return, the company would mail you back a bronze, silver, or gold patch depending on the score you achieved. I spent many, many hours playing Decathlon with my father and brother trying to win those patches, and we did win some.
Q: How does your bachelor’s degree impact your legal profession?
A: I majored in psychology because it was remarkably interesting to me, but it hasn’t had a great impact on my legal practice. However, I do at times harken back to some of my social psychology classes when dealing with adversaries, witnesses, and the like. And jury consultants often have backgrounds in psychology, so on the rare occasion when we are preparing for a jury trial (which does not happen too often in my practice), it is nice to share that background and have a bit of insight into that process. Probably the most relevant takeaways from my undergraduate work that I have applied to my career have come from my classes in sleep studies and my time working in a research lab studying sleep deprivation. As you can imagine, especially as a young associate, having some background in and understanding of sleep deprivation comes in handy from time to time!
Q: With many of the same owners from the NHL and NBA getting involved at the ownership level in esports, have you seen a change in the understanding of how antitrust applies to esports over the past 2-3 years?
A: Certainly, for those owners, I would expect a greater understanding of the antitrust laws and how they apply to their esports businesses because they have been dealing with those legal issues with their traditional sports teams for many years. As esports leagues continue to mature, I would expect an even greater understanding of the antitrust laws to emerge among all stakeholders as the legal issues inevitably arise. Our group is uniquely positioned in that we are able to draw from the resources of Skadden’s worldwide Antitrust/Competition capabilities and apply them to developing issues in the esports realm.
Q: Antitrust was not originally written to apply to the unique business structure found in sports, where teams do not want other teams to fail (except on the field maybe), how might you rewrite the antitrust laws to better apply to traditional sport structures?
A: I am not sure whether it requires rewriting the antitrust laws, but I would like to see a better understanding and appreciation in the law of how competition and cooperation work in professional sports. For example, do teams within a particular league really compete with each other for the sale of tickets, concessions, merchandise, broadcasts, etc., or is it more likely that a team competes more with the local teams of other sports leagues and with the other entertainment options available within the team’s specific geographic locale? And with respect to the cooperation among teams that is often necessary for a league to function and thrive as a business in the competitive world of sports and entertainment, I would like to see a better recognition in the law and among courts of the realities of sports league operations and how they may differ from other industries. Many of the agreements among teams and joint efforts within a particular league are procompetitive in that they, among other things, foster competitive balance, prevent free-riding, ensure economic efficiencies, and otherwise better enable the league to compete with other sports and entertainment offerings. Unfortunately, however, the leagues often need to endure very expensive litigation in order to demonstrate this, and perhaps some bright-line rules with respect to some of these issues and business practices—for example, recognizing that some established and well-considered practices are actually presumed lawful—would allow for more efficient and less costly determinations when the conduct of a league and its teams is challenged.
Q: What are the parallels between esports and traditional sports when it comes to antitrust?
A: As esports businesses continue to evolve, they likely will face many of the same legal issues as traditional sports leagues and teams. Like in traditional sports, esports teams within particular leagues often will need to cooperate with respect to a variety of business practices, including league governance, labor and other player issues, licensing of intellectual property, sponsorships, merchandising, broadcasting, and ticketing. As revenues increase, the leagues and teams may become the targets of antitrust challenges to some of these practices under the antitrust laws. Leagues may also face assertions of dominance with respect to particular market segments and be confronted with claims of monopolization. Because of the parallels to traditional sports, esports leagues and teams may be able to look to the history, experience, and legal precedents of traditional sports properties in handling such disputes.
Q: Where do you see the esports industry in 10 years?
A: The esports industry continues to thrive and grow, and in many, metrics has begun to outpace the traditional sports industry. I expect this growth trajectory to continue with the explosion of additional digital and social media platforms and the appetite of young fans for new sources of content. The global pandemic in which we now find ourselves, and the attendant restrictions on our daily lives, has only served to further highlight this phenomenon, as even traditional sports have moved to esports content to satisfy their fans. If anything, I think our current situation may accelerate the already explosive rate of growth of the esports industry. It would not surprise me if in 10 years the esports industry is a fixture in our homes and a major player for our entertainment and leisure spending.
