Esports has come a long way in establishing itself. The International Olympic Committee will hold its first “Olympic Esports Week” in Singapore in June. The NBA has a popular NBA2K league. About 175 colleges sponsor esports teams, with some players on esports scholarships.
But what counts as a “sport” depends on the test.
On Feb. 17, U.S. District Judge Carlos Mendoza concluded that esports does not count as a sport for purposes of Title IX, the federal law that commands gender equity in collegiate athletics and education more generally. Although esports has been litigated in other contexts, this is the first time a federal judge has issued a written ruling on esports as it pertains to whether a college has complied with Title IX.
In Navarro v. Florida Institute of Technology (FIT), six members of the school’s men’s rowing team are suing the school for alleged violations of Title IX. The dispute stems from FIT, a Division II school, announcing in 2022 that it would discontinue men’s and women’s rowing, men’s and women’s cross-country and men’s golf, and transition each to club level. The elimination of those teams, the six rowers contend, will save the school about $1.8 million in coaches’ salaries, scholarships and operational costs. Among other remedies, the rowers sought a preliminary injunction to “immediately reinstate the men’s rowing team at FIT until this case can be heard on the merits.”
FIT’s rowing program began in 1968 and has enjoyed success, with assorted wins at regattas over the years—including several at the Dad Vail regatta in Philadelphia, the largest collegiate regatta in the nation. It has also produced Olympic rowers. The six rowers—who seek for their case to become certified as a class action that would include other male students playing sports at FIT—are described as accomplished athletes who selected FIT in part for its strong rowing program.
To persuade Mendoza, the rowers offered statistical evidence showing a wide disparity between male enrollment at FIT and male athletes at the school. During the 2018-19 academic year, there were 3,261 undergrad FIT students, consisting of 2,325 men (71.3%) and 936 women (28.7%). But only 64.2% of Panthers athletes were men. Mendoza wrote the disparity “represented a shortfall of 132 athletic opportunities for men.”
The shortfall continued in 2021-22 and 2022-23, with 117 and 121 fewer opportunities for men, respectively (2019-20 statistics were excluded, the court explained, due the pandemic’s anomalous impact on enrollment). The rowers insisted FIT was already in violation of Title IX when it cut their team.
Not so fast, FIT argued. When esports athletes, along with full-time undergraduates attending FIT’s online-only division, are included in the 2021-22 data, the shortfall of opportunities for men plummets to just three students or .16%. If deemed a valid indicator, such a tiny disparity would not constitute a violation of Title IX since it would not reflect a “substantially proportionate participation gap.”
FIT further stressed that its coed esports program is supported by the athletic department and provides athletic opportunities in the same vein as other athletes. “Esport student-athletes,” the school wrote in one court filing, “have access to the same support services, including athletic trainers.” Esports athletes at FIT are also selected through a tryout process, and prepare and compete on a set schedule determined by two associations (the National Association of Collegiate Esports and National Esports Collegiate Conference). Beginning in fall of 2023, FIT esports athletes will be eligible for esports scholarships.
But the rowers, who are represented by Florida labor and employment attorney Arthur Schofield and others, rejected FIT’s method of calculation as being at odds with the law.
“No court,” the rowers wrote in a pleading, “has ever opined that esports meets the definition of a sport for Title IX.” The rowers, Mendoza added, also “focus on the fact that esports do not require athletic ability and are not governed in a manner necessary to qualify as such.”
In weighing these arguments, Mendoza noted that the U.S. Department of Education’s Office of Civil Rights—which enforces Title IX—stressed in its 2008 “Dear Colleague” letter that it “does not have a specific definition of the term ‘sport.’” OCR presumes that a college’s sport counts for compliance if (among other factors) the program is governed by the NCAA or another intercollegiate athletic organization. OCR also advises that schools have flexibility in determining athletic opportunities for students.
Mendoza found relevant Biediger v. Quinnipiac University, where in 2012 the Second Circuit court upheld a district court ruling that competitive cheerleading did not qualify as a sport. The Second Circuit reasoned that there was no favorable OCR presumption for competitive cheerleading since the NCAA doesn’t sanction it. The court also stressed that while competitive cheerleading shares many qualities of a sport—including practice time, regimen, venue and length of season—other factors, such as a lack of off-campus recruitment or a progressive playoff system, weighed against recognition.
Mendoza concluded that competitive cheerleading is a “close call” for recognition as a sport. But “the same cannot be said about esports,” he charged. Mendoza underscored that while competitive cheerleading is physically challenging and requires competitors to have strength and agility, “esports does not require athletic ability.”
Mendoza also found it influential how there is no “e-sport national governing association” promulgating rules for the 13 video games recognized in esports competitions in the same vein as “NCAA football rules.” He further observed that the esports games “are owned and created by a commercial vendor and leased to players,” and there is “no evidence that FIT’s esports program recruits off-campus or competes in a progressive playoff system.”
The case is not over, and FIT can appeal. But colleges curious about how their esports programs intersect with Title IX calculations ought to be paying close attention to Navarro v. FIT.
(This story has been updated in the headline.)