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TSM Signs Player Contracts Through ICON – Conflict of interest?

Izento 2022-04-05 08:00:41
  It’s said that just 10 companies sell almost all the food you buy. When you realize that companies can own subsidiaries, it muddies the waters and creates a confusing mess that is difficult to track who owns what company. As with anything, it’s easy to find the source by following the paper trail, and esports is no exception. Currently there are talent agencies which both represent esports teams and players at the same time. This creates a direct conflict of interest, as the agency is representing both clients, of which are looking to get the most out of a monetary sensitive situation. A company is always trying to maximize profits, and a player is likely to do the same.  But let’s step back a bit and discuss what a talent agency does. A talent agency is there to find sponsorship deals for an individual or entity, provide legal counsel for contracts, and help sign brand deals, affiliations, and in this case, help a team sign a player, or a player sign to a team. The problem arises when that talent agency is sitting at both sides of the table, where they control both sides of the negotiation. This would be similar to having a car mechanic give you an estimate, and you ask his brother if the price is fair.  One source I spoke with said that they are aware of some conflicts of interest in the player agency space. There are probably a fair share of player agencies which play both sides of the table, but I’ll share with you two of them. United Talent Agency (UTA) is one of the largest talent agencies in North America. Not only do they represent people in music, movies, and sports, but they also represent players and teams in esports. In 2018, they acquired PressX Agency and Everyday Influencers. One major conflict of interest that stands out is their representation of FaZe Clan, which started in 2021. Since then, they have signed Fortnite superstar Kyle “Mongraal” Jackson, currently 17 years old. Mongraal is also represented by UTA, creating a direct conflict of interest with UTA representing both an esports player of FaZe Clan and the esports organization themself. This is reminiscent of the FaZe Clan lawsuit involving Turner “Tfue” Tenney, where Tfue attempted to sue FaZe Clan on the basis that FaZe Clan acted as a talent agency and prevented him from gaining substantial sponsors. The lawsuit has since been settled, with both parties moving on. Of course this isn’t a perfect 1:1 example, but the point is, there is still a conflict of interest for one source controlling two entities which may have different goals. There still may be legal precedent for such types of conflict of interests, as there was a recent move in Hollywood which could potentially translate to esports. In 2019, the Writers Guild of America (WGA) went on strike against the Creative Artist Agency (CAA). The WGA is an alliance of writers across America which comprise people from several industries of writing, from books to TV, to movies and journalists. CAA is also one of the biggest talent agencies in the entire world, and in fact, some of your favorite casters or players are represented by this agency. CAA had financial stakes in production companies, while also representing several writers of the WGA. This conflict of interest boiled over enough for the WGA to strike against large talent agencies such as CAA. As of 2020, the WGA reached an agreement with CAA and every major talent agency to reduce their financial stakes within production companies to 20%. What does this mean? Hollywood realized that there was a conflict of interest for the agency both representing writers and getting them deals to production companies they owned. Enough with the history lesson, let’s get back to esports. Out of the 11 talent agencies investigated, we come to the most perfidious talent agency, ICON (ICON Media Talent being their business registered name). ICON is owned by Swift Media Entertainment, the parent company of popular esports organization TSM. TSM is owned by Andy “Reginald” Dinh. Swift Media Entertainment’s CEO is none other than Andy Dinh. TSM and Swift Media Entertainment even have the same address under their business registration. Out of the 34 esports players/personalities represented by ICON, 17 play for or represent the esports organization TSM. That’s 50% of ICON’s clientele, based upon their website listing; here are their gamer tags:
  • MaycieJay Rainbow6 player for TSM
  • ChocoTaco current streamer for TSM
  • Beaulo Rainbow6 player for TSM
  • Hiko VALORANT player for 100T
  • TheOddOne streamer for TSM
  • Emadgg Fortnite player for TSM
  • ZexRow Fortnite player for TSM
  • Viss Apex Legends player for TSM
  • Wardell former VALORANT player for TSM 
  • Leffen Smash player for TSM
  • Albralelie content creator for TSM (former Apex Legends pro for TSM)
  • Viss content creator for TSM 
  • Break content creator for TSM (former PUBG pro for TSM)
  • Subroza VALORANT player for TSM
  • Reps Apex Legends player for TSM
  • TannerSlays former content creator for TSM
  • NumotTheNummy MTG player for TSM
  • SolidFPS content creator for TSM
In an interview with Dexerto, general manager Damian Skoczylas said, “We will be negotiating contracts and opportunities that come from TSM but we will also come to heads at certain junctures. Our fiduciary duty is to the talent that we represent and not to TSM, nor to the parent company. We all exist in this ecosystem, but we are separate and we will be negotiating against TSM in some cases[...] From a high-level standpoint, we call it the separation of church and state”.  He’s right, there is a need for a separation of church and state, that’s why the Pope isn’t also the vice president of Italy. TSM staff are employed at ICON. According to LinkedIn, Kevin Wallace is named director of partnerships for ICON, and also holds the same title at TSM. Jocelyn Parmenter is VP of brand partnerships at ICON, while also being the senior director of brand partnerships at TSM. Dylan Watkins is the partnerships manager at ICON, while also holding the same title at TSM. And of course, as stated previously, the CEO of Swift Media Entertainment, the parent company of TSM and ICON, is Andy Dinh. ICON’s own business is also registered under the same address, but the shell company used to cover up the primary arm of ICON is registered in Delaware, a state which is used as a tax haven for businesses, but in this instance more importantly, does not require you to register your board of directors with your filing, offering ultimate privacy. Delaware is also a state that allows one person to be CEO, director and shareholder. The CEO of ICON could very well be Andy Dinh and the evidence is damning. The co-mingling of these three companies cannot be understated. This seems to be the most predatory agency in all of esports that operates today. They have several young players from such titles as Fortnite, Rainbow6, and Apex Legends to represent them through TSM, yet ICON is owned by Swift Media Entertainment, the parent company of TSM. To spell it out for you, there is no policy stopping ICON from talking to TSM to configure a deal which is most favorable to TSM and ultimately the parent company Swift Media Entertainment. Negotiations between a player and an esports organization should have as little conflict of interest as possible. TSM are the largest perpetrators of going against this fundamental element of negotiation, and they have shown a lack of respect towards this axiom in the past, with former President Leena Xu acting as a negotiator for contracts on behalf of TSM while also being the girlfriend of then TSM’s superstar League of Legends AD Carry Yiliang “Doublelift” Peng, all the while living in the same apartment as this player and negotiating contracts in earshot of Doublelift. Just as if things couldn’t get more confusing, Doublelift would later have ICON represent him as his talent agency in August of 2021. In January of 2022, Doublelift dropped his relationship with ICON and he signed with esports talent agency Loaded.gg. Fiduciary duties–which is just a fancy way of saying that an entity has the responsibility to keep their client’s monetary benefit always in mind– extend to the talent agency world, and that is feasibly impossible if an agency represents a team and player at the same time. A fiduciary, as defined by media lawyer Thomas Vidal, is that the talent agent “ has broad authority to act on behalf of [someone], but cannot violate four express duties owed to the [client]: loyalty; the avoidance of conflicts of interest; not to undertake actions adverse to the [client]; and not to commingle property of the [client’s]. See Civ. Code Section 2322”.  It’s not just ICON and TSM which currently violates several ethics of business, but they have been the most blatant of all companies. Their dealings with player contracts may even be considered illegal. California law (which most esports companies operate within) subsection 1700.40(b) states that “No talent agency may refer an artist to any person, firm, or corporation in which the talent agency has a direct or indirect financial interest for other services to be rendered to the artist, including, but not limited to, photography, audition tapes, demonstration reels or similar materials, business management, personal management, coaching, dramatic school, casting or talent brochures, agency-client directories, or other printing”. Additionally, teams and talent agencies are taking advantage of player contracts by creating package deals. This means that a team will not release a player to another team unless they buy that player along with another player. Package deals are considered illegal by the California Cartwright Act, which considers the act of “tying” to be, “selling a product or service on the condition that the buyer agrees to also buy a different product or service”. This means that for the famous package deals we’ve always heard in esports, about teams selling a couple of players to another team, that transaction may very well have been illegal, particularly if one of those players is adverse to the package deal. The WGA also attempted to sue WMA (Weller Media Agency), with the judge citing that the WGA could sue WMA over the California Cartwright Act, so there is already some legal precedent if players choose to sue their talent agency or teams over package deals. There is one large piece that must be stated about ICON, in that they could have a player sign a waivable conflict of interest, which would probably state that ICON is a Swift Media Entertainment company and therefore the player understands the degree into which there can be conflicts that may arise due to this relationship. Basically, a get out of jail free card, buried in legal jargon, similar to a terms of service agreement, and also one that is predatory because the agent is the one giving them this information, and is unlikely to be reviewed by the actual player themselves. There are several young players that are currently being taken advantage of, and this is something which they themselves may not realize, but also the broader esports community may not have been aware of and the grander detriment it can have to esports as a whole. I’m no lawyer, but I do understand the English language to a high degree, and this certainly sounds like an indictment of ICON talent agency in particular. Their relationship with the players they represent while also being owned by TSM’s parent company Swift Media Entertainment has opposing fiduciary duties. Yes, it’s important to read your contract, but it’s also important to know who is helping you read said contract. If we don’t take the time to point out things like this, players may continue to be stuck in Plato’s Cave. After reaching out for comment from ICON, we did not receive a response within 24 hours within the publishing window of this article, but will update based on new information and conversation.
Follow the author on Twitter at @ggIzento. Images courtesy of Lolesports
 

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