Friday, April 22, 2016

For Love of the Game?

Yesterday, hidden among people mourning the death of Prince, I found a surprising and troubling tidbit in my Facebook newsfeed. Apparently, a number of judges for Wizards of the Coast's Magic: The Gathering CCG have filed suit against the company, claiming they are unpaid employees. You can find the filing for the lawsuit here, and Wizards of the Coast's response to it here. While I'm not a lawyer, I was an intern for a newspaper and a comic book/game shop in my past life as a journalist (it's been so long ago that I don't remember if I was paid for either one or not, so don't ask), and I did serve as a game demonstrator for a game company at the turn of the century (2001 or thereabouts, not 1901, you young whippersnappers).

From what I understand of the case, its primary foundation is being laid on the Fair Labor Standards Act of 1938 (the law which gave us the 40-hour work week and all the other rights we enjoy here as workers in the U.S.) and a number of California state laws regarding labor and professions. In short, the plaintiffs feel they were not paid for their time, overtime, missed meal and bathroom breaks, etc. If you've paid attention to the general media in the past few years, you'll also see that this whole affair has some (but not all) of its roots in the debate over unpaid interns working for (and being overworked by) for-profit companies.

The rules for unpaid interns and trainees in California - according to the Nelson Law Group and attorney David Grey - show that it's a literal minefield for any for-profit company to have unpaid interns and/or "trainees" in their ranks. Overall, the federal and state guidelines governing non-paying internships require that:
  1. An intern cannot take the place of any regular employee.
  2. There is no promise of a job for the intern at the end of the internship.
  3. Both parties (employer and the intern) understand that the intern is not entitled to payment or benefits during the internship.
  4. The intern must receive training from the company; that training must occur even if it slows or otherwise impedes the organization's work.
  5. The intern must get hands-on experience with the organization's processes and equipment.
  6. The training is primarily for the benefit of the intern, not the company.
 While I'm not a lawyer, it's pretty clear to me that Wizards has more legal standing in this case than the plaintiffs. Let's take a look at each point.

An intern cannot take the place of any regular employee - That's self-explanatory. Judges for any organized play program are not going to be replacing anybody in the corporate hierarchy of the game company. They're volunteers who are doing this out of love for the game, and perhaps for any added incentives provided by the company.

There's no promise of a job - Again, self-explanatory. You might be an awesome judge for your local MtG tourneys, but that doesn't necessarily equate into being an awesome designer, proofreader, layout composer, etc. Nobody is promised employment with Wizards of the Coast simply by being an MtG or other organized play judge.

Both parties (employer and intern) understand the intern isn't entitled to benefits or pay - I believe it's always been stipulated in agreements between OP judges and game companies that there is no legal, binding agreement between the company and judge about monetary pay or benefits (such as health insurance). As such, there's no way the plaintiffs are going to get paid.

Training - Training for organized play judges usually comes in the form of documents, which the judges are required to read and understand in addition to the rules of the game and any expansions. With MtG judges, there are tests administered by judges certified to be testers in order to be initially certified as well as to advance in levels through the program. That training is to give the judges a sound foundation in adjudicating tournaments on various levels and regulating the players and their fellow judges. In this case, the benefits to the company are tangential.

Most people in both the gaming hobby and industry know that unless you've got a blockbuster (which MtG quickly became) and possibly the backing of a larger corporation (which WotC has through Hasbro) you're not going to be making a whole lot of money in the game industry. Aside from the costs for advertising, art, layout, editing, printing, and distribution, you're dealing with a niche market - a small fraction of the general population, either locally or globally. Paying for the services of professional judges (or gamemasters, for that matter) is just not feasible. Game companies, especially those in niche markets like wargames, RPGs, boardgames, and collectible card games learned early on that the best way to promote was by word of mouth in addition to providing incentives for their fans to promote their products.

That's not to say that those who volunteer for organized play or promotional programs are hapless, underappreciated cogs in the corporate machine. Dungeon Masters for the Role-Playing Game Association (RPGA) received a number of cool bennies and items over the years in recognition of their service - I still drool over the giant "Fist of Emirikol" d20 that one of my friends acquired by being a Herald-level DM during D&D's third edition years. I also know that agents for Double Exposure's Envoy program get to keep the games they get certified to demo.

To further illustrate: Years ago, I served as a Bounty Hunter for Alderac Entertainment Group, the folks who brought us Legend of the Five Rings, the original Spycraft RPG, and 7th Sea. The program was simple: for each event a Bounty Hunter ran, depending on the product, you got a number of points. Those points could be redeemed for free product - RPG rule and sourcebooks, starter decks, booster packs, etc. That in turn allowed us to promote the new products without making an investment beyond time, effort, and enthusiasm. In short, it was a labor of love, the same labor of love which drives people to run demos for the Envoy Double Exposure program, and organized play groups like WotC's D&D Adventurers' Guild, and Paizo's Pathfinder Society.

That connects to something I agree with in WotC's response:
With the exception of the Pro Tour, the World Magic Cup, and the Magic World Championship, Magic events are run by tournament organizers and local game stores who directly engage judges. But these lawsuits claim that Wizards runs all events and that the people judging those events are Wizards employees. Anyone who has played at their local store knows this simply is not true...
...Fans choose to become judges out of a sincere love of the game and as a way to enjoy their favorite hobby. They ensure events are fair and fun, and we appreciate everything they do.
That's why I was an AEG Bounty Hunter - because first and foremost I enjoyed running and teaching the L5R and Spycraft RPGs to others. Yes, the perk of free product was nice, and it did help in the long run, but it wasn't my prime reason for being in that program.
Do you smell something burning? I do.
Art by Plognark.
At best these self-entitled troglodytes are pants-on-head morons; at worst, they are disingenuous asshats. Either way, I smell smoke. It's my sincere hope that these idiots not only get laughed out of court, but also out of the hobby and the industry. Why? Because if they win, it's going to set a bad precedent and I can foresee game companies ending their organized play/promotional programs to avoid incurring any liability under that precedent.

Of course, the Law of Unintended Consequences dictates that even if Wizards of the Coast wins, there could be a backlash from supporters of the plaintiffs throughout the program. That in itself would be a tremendous and disappointing loss as it would be evidence (in my opinion) that a portion of the hobby doesn't have the maturity (and possibly intellect) it claims to have, leading to further repercussions which I can't even begin to envision, let alone want to.

In short, this could hurt everybody involved in the hobby and the industry, not just one company.

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