Sports Lawyer Benjamin J. Kim Joins Boies Schiller Flexner, Talks Esports

Sep 9, 2022

Early last month, Benjamin (Ben) J. Kim joined Boies Schiller Flexner, a coup for the law firm as it seeks to build a strong practice in the esports area.

He was previously at Nixon Peabody.

Besides esports, Kim is also an established leader when it comes to litigation involving the Occupational Safety and Health Act, or OSHA.

But it was his experience in esports that caught our eye. Kim has provided counsel on legal issues related to the rapidly evolving technology and business needs in that sector. He has also advised esports organizations on a variety of workplace-related issues.

We sought out Kim, who earned his J.D. from the University of California Berkeley School of Law, for the following interview.

Question: Ben, why did you join Boies Schiller Flexner?

Answer: There’s an opportunity here. Boies Schiller Flexner’s reputation in handling very high-end litigation with an elite group of litigators is pretty well known. The fact that I’ll be able to continue doing that kind of work at a firm where that’s always been the focus was attractive.

In a lot of ways, there are a lot of opportunities to pursue that work, particularly here in LA for the firm. I like being able to come in and help the firm do that here in LA, and throughout California, which is a fertile ground for new industries, new areas of law, new legal issues, etc. Boies Schiller Flexner has always kind of rested its reputation on litigating those kinds of cases and matters.

My hope is to continue to develop and handle those kinds of really cutting-edge legal issues for all sorts of industries, including the eSports industry. While it’s been around for a while, COVID happened and everybody stayed home. And the popularity of some of these games have increased exponentially.

It’s a multibillion-dollar industry. It really is entertainment, and then you add a technology component, you’re going to have all sorts of interesting new legal issues. It’s no different than employment law, which I practice. When you had employees, who all of a sudden had to find new ways to do their work during the pandemic, they turned toward technology. There are all sorts of legal issues with that.

It is a really interesting time to be able to tackle these issues. We’ve been living in a cave. So, as we’re coming back, all of these issues are starting to come in play. Litigation is going to increase because there’s a lot of litigation that frankly didn’t happen when the courts were closed, and judges weren’t moving calendars. So, there’s going be a lot of activity, and interesting issues, especially in the Esports industry

Q: Who is making money in the Esports industry?

A: This form of entertainment has grown more as people are trying to get into the industry. It’s not just the video game publishers. It’s not even just the teenagers, or the players. It’s an entertainment machine. You’ve got tech companies who want to stream these events live. You’ve got people who want to get into advertising, where they can reach a lot of the viewers who watch and consume this kind of entertainment. More than traditional sports, technology is really being used to deliver this kind of entertainment to people.

It is because of the tech element that sometimes these legal issues around contracts, employees and independent contractors don’t line up like they do with other forms of entertainment. Esports, is kind of an odd duck. It’s a newer industry. The legal processes need to be more formalized. That’s kind of the adventure in it.

Q: Who would your typical client be?

It ranges from game publishers to teams to players. Then there’s tech companies who want to stream, or the contractor who’s building the Esports seating. Those are just some examples.

Q: What do you see as far as the growth of unions in esports?

We are seeing more of that activity, where unions have more of an impact in the industry. We do have a workforce that is providing this entertainment, right. Mostly, the players and the teams are trying to figure out how to normalize relationships. Unions are a way to normalize those relationships.

In professional sports, someone might want to play for the Dallas Cowboys. And that deal is going be somewhat similar to the deal they had before when they played for the New York Giants. Right. You don’t have the same standard in the Esports world. It depends on the tournament, or the game, or the competition. There really isn’t a standard, in terms of deal structure. So, a lot of the people are being very creative with how they structure those deals. One of the things that unions are trying to do is come in and say, “We want to represent the players and have sort of some consistency with what these monetary deals are going to look like. And we want to be able to bargain collectively and have more of an impact on those terms and conditions of employment.

In the esports world, there’s so much variability across different types of competitions, because every competition might look different. Revenue streams might look different.

Q: How will your arrival impact how the firm’s sports practice is defined?

A: The firm has a reputation in what I call traditional sports. It has done a lot of work for a lot of the major sports leagues and teams. It has also represented fantasy sports, which falls outside of traditional sports. With me coming in here, I hope to build on that reputation by bring in this esports practice, which will not just build on our firm’s traditional sports practice, but compliment it.

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