论职业电子竞技选手的身份认定与权益保障  

On the Identity Recognition and Rights Protection of Professional E-Sports Players

作　　者：陈方静 

机构地区：[1]上海大学法学院,上海

出　　处：《争议解决》2024年第1期420-428,共9页Dispute Settlement

摘　　要：在现行法律框架内,职业电子竞技选手权益保障的路径与水平取决于其身份认定。然而,目前学界与司法实务界关于职业电竞选手与俱乐部间法律关系的定性存在争议,职业电竞选手的权益难以得到有效保障。通过对职业电竞选手的从属性及其特殊性两方面展开深入分析,宜认定其为特殊劳动者,在《劳动法》中明确其与电竞俱乐部间为特殊劳动关系,从而将其纳入劳动法律法规保护范围。就职业电竞选手的权益保障而言,应针对当前存在的基本劳动权利受侵害、自由择业权受限制、健康权保障困难、退役后保障措施不足、权利救济渠道有待拓宽等问题,在兼顾选手权益保障的特殊需求与电竞俱乐部发展利益的基础之上,围绕集体协商、自由流动、职业伤害保障、退役再就业、劳动救济等方面进行具体制度设计,以构建职业电竞选手权益的特殊保障体系。Within the current legal framework, the path and level of protection of the rights and interests of professional e-sports players depend on their identity. However, at present, there are disputes in the academic and judicial circles about the legal relationship between professional e-sports players and clubs, and the rights and interests of professional e-sports players are difficult to be effectively protected. Through the in-depth analysis of the subordinate nature and particularity of professional e-sports players, it is appropriate to identify them as special workers, and clarify the special labor relationship between them and e-sports clubs in the “Labor Law”, so as to include them in the protection scope of labor laws and regulations. As far as the protection of the rights and interests of professional e-sports players is concerned, in view of the existing problems such as the infringement of basic labor rights, the restriction of free choice of employment, the difficulty in guaranteeing the right to health, the insufficiency of post-service security measures and the need to widen the channels of right relief, and on the basis of considering the special needs of players’ rights and interests protection and the development interests of e-sports clubs, specific systems are designed around collective negotiation, free movement, occupational injury protection, retirement and re-employment, and labor relief, so as to build a special protection system for the rights and interests of professional e-sports players.

关 键 词：职业电竞选手 身份认定 特殊劳动关系 权益保障 

分 类 号：D92[政治法律—法学]