The Ownership Crisis: Why Indian Esports Players Lose Control of Their Performance Rights

Law analysis of India's esports legal architecture exposes a structural fault line that the Promotion and Regulation of Online Gaming Act, 2025 — which came into force on 1 May 2026 — failed to address: the moment a professional player signs a tournament participation agreement, they effectively sign away meaningful control over their own competitive performance. The statute recognises esports as sport. It does not, however, recognise who owns the play.

The Section 38A(2) trap

The mechanism is surgical. Chapter VIII of the Copyright Act, 1957 grants performers exclusive rights under Section 38A(1) to record, reproduce, and communicate their performance. Section 38A(2) then narrows that protection to a slit: once a performer consents in writing to incorporation of their performance into a cinematograph film — which a tournament broadcast legally is — they lose the right to object to how the producer (the publisher) uses it. Moral rights under Section 38B survive, but moral rights don't block licensing or restrict broadcast monetisation. The proviso entitles performers to royalties for "commercial use" — a term the statute never defines. Control without economics, or economics without control. Pick one.

Economics of an asymmetric ecosystem

Strip the legalese and the incentive map is unforgiving. Publishers carry the capex — game development, server infrastructure, tournament pipelines — and they monetise every exploitable asset, including the player's performance. Players carry the opex of their own careers: years of training, peak-window earnings measured in months, and zero transferable IP. The current arrangement transfers IP without transferring agency.

This asymmetry warps the entire ecosystem's ROI calculus. Sponsors pricing a roster can't model player-controlled broadcast revenue streams because none exist. Investors evaluating franchise valuations can't treat performance rights as an appreciating asset class because the publisher owns them. Value consolidates upstream; the talent pool stays commoditised. It is the same structural dilemma that surfaces when building a brokerage that lasts in a regulated environment — whoever captures the value before regulation catches up to the business model wins by default.

What to watch

The LiveLaw piece proposes three reforms: amending Section 2(qq) to recognise competitive performance as protectable, inserting a non-waiver clause tied to PROGA registration, and creating a fast-track remedies authority. None are imminent, and none are cost-free. The World Intellectual Property Organization has acknowledged that esports operates inside a complex IP ecosystem without clear performer frameworks — meaning India's gap is not unique, but it is now codified.

The Supreme Court's 27 May 2026 ruling in State of Tamil Nadu v. Junglee Games India Pvt. Ltd. held that wagering on any game renders the activity res extra commercium, outside Article 19(1)(g) protection, while leaving skill-based esports constitutionally untouched. Indian mobile esports has already proven it can scale — Team Vitality's MLBB roster took the Esports World Cup 2026 title, per Esports Insider — so the question is no longer viability but structural return on talent. Until Section 38A(2) is amended, publishers collect, and players participate.