Key Takeaways
- A February 2023 federal court ruling determined Florida Institute of Technology could not count esports participants as varsity athletes for Title IX proportionality calculations
- The court emphasized esports lacks “athletic ability” requirements and features typical of varsity intercollegiate teams, including mature external governance
- Esports remains covered by Title IX as an education program, requiring nondiscrimination in access, funding, facilities, and staffing regardless of sport status
- Two organizations now largely organize collegiate play: NACE for four-year institutions and NJCAAE for two-year colleges (excluding California)
- The NCAA declined to govern collegiate esports in 2019, leaving schools without clear guidance on Title IX classification
Court Decision Creates New Standard for Esports Classification
A 2023 Florida federal court decision against Florida Institute of Technology established that esports programs cannot be counted as varsity athletics when schools calculate Title IX compliance. The preliminary injunction followed the framework from Biediger v. Quinnipiac University, a case from fifteen years ago that denied varsity sport status to competitive cheer by examining governing rules, competitive structure, squad selection, and whether participation opportunities matched other varsity sports.
The FIT court found esports lacked the “athletic ability” requirement and key features of established varsity programs. These missing elements included a mature external governing body writing rules, progressive playoff systems, and comparable recruiting structures.
What Schools Must Still Do Under Title IX
Despite not counting toward varsity athletics calculations, esports programs remain subject to Title IX as education programs. Schools that fund, sponsor, host, or administer esports at any level (varsity, club, or co-curricular) must prohibit sex discrimination across multiple areas. This includes access, funding, staffing, facilities, eligibility, and disciplinary environment. Hostile environment harassment and retaliation claims connected to esports teams or institution-run discord servers also fall under Title IX protections.
Where schools place esports within their organizational structure matters for compliance. Programs housed inside athletics departments, using athletics resources and marketed as varsity teams, face scrutiny on whether they receive the same benefits as other varsity sports. Programs placed in student organizations or clubs get compared to those activities for equity purposes. Schools should clearly identify where esports lives on their websites.
Current Governance Landscape
The NCAA’s 2019 decision not to govern collegiate esports left a governance gap. Two membership associations now provide structure: the National Association of Collegiate Esports (NACE), a nonprofit setting eligibility standards and operating NACE Starleague for four-year institutions, and NJCAA Esports (NJCAAE), organizing competition for two-year colleges outside California.
These organizations provide structure and season play, but institutional affiliation varies. Many esports programs still don’t resemble countable varsity sports under Title IX standards. The International Olympic Committee has announced IOC E-games, suggesting continued evolution in esports governance.
Compliance Requirements for Schools
Schools must include esports in annual Title IX equity audits, examining travel support, financial resources, access for male and female students, practice times, technology, space, and coaching distribution. Documentation of criteria and nondiscriminatory decision-making remains essential.
Online environments require particular attention. Since esports culture and team activities occur predominantly online, schools must ensure reporting channels, supportive measures, and investigation procedures meet current Title IX regulations. This extends to incidents in school-sponsored esports chats, streams, and practice spaces.
Title IX coordinators need specific information about esports programs: organizational placement, funding sources, leadership, roster sizes, coaching staff, and participant numbers. This reporting should mirror the process used for other varsity sports.
Looking Ahead
The path toward esports recognition as a varsity sport depends on governance development. More uniform rulesets, eligibility enforcement, postseason formats, and recruiting structures increase the likelihood of Title IX sport status. State association recognition alone won’t determine federal Title IX classification, similar to cheerleading, dance, and pom.
The FIT decision’s emphasis on athleticism introduces questions about other non-athletic activities seeking varsity status, though the Biediger case did not include athleticism as a consideration. Whether athleticism alone would prevent sport status if other Biediger factors were met remains unclear.
W. Scott Lewis, J.D., managing partner with TNG Consulting and chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, advises tracking updates from NJCAAE, NACE, IOC, ATIXA, and the NCAA regarding esports legislation and court cases.
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via: NFHS
photo: Insider Gaming
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