*This writing is a blog post. It is not a published IPTF Journal Article.
Noah DeRossi-Goldberg
I. Working Without a Basic Understanding
A. The Misstep of Navarro
Decisions about Collegiate Esports are made without judges ever taking the time to pick up a controller.[1] A recent opinion by a Florida District Court has created a roadblock for any college seeking to establish a competitive, fully funded Esports program within their athletics department.[2] The Florida Institute of Technology (“FIT”) disbanded its men’s rowing team to comply with Title IX’s mandate that men’s and women’s sports receive equal funding.[3] In determining the legality of this decision, the Florida District Court held that FIT’s Esports program was not a “sport”–therefore the program was not applicable for Title IX funding calculations, even if the program is deemed to be “co-ed.”[4] Because the Florida District Court refused to consider Esports a sport, as it does not represent a “genuine participation opportunity” under Title IX, FIT may not use its Esports program as evidence of equal opportunity on campus after the dissolution of the rowing team.[5]
The Florida District Court relied on the authority of the Office for Civil Rights (OCR), a subdivision of the U.S. Department of Education, and referenced a guidance letter written by the Assistant Secretary for Civil Rights in 2008.[6] Judge Mendoza asserted that applying the OCR’s determining factors to Esports produces not a “close call”, but a clear rule.[7] Esports clearly does not qualify as a sport due to the lack of physical assertion, absence of “national” rule systems, and improper structure of playoff systems.[8] These factors adopted from the 2008 letter were addressed not to the courts, but to the postsecondary schools seeking to develop new athletic programs.[9] Despite the decisiveness of the ruling, not all the OCR factors laid out in this letter were considered properly in the Navarro decision.[10]
First, the only reference to “athletic ability” exists as a sub-sub-factor that “may be taken into consideration” by schools but is fully discretionary.[11] The OCR does not define athletic ability, nor does it require that any institution forming a new sport meet a certain physical criteria.[12] Second, the required “specific set of rules” may be determined by a conference organization, but need only reflect rules of traditional sports in objectivity and standardization.[13] Here, FIT not only played in leagues organized by the National Association of Collegiate Esports (NACE) and the National Esports Collegiate Conference (NECC), both leagues maintain detailed and comprehensive rulebooks promulgated to all competing institutions at the beginning of each season.[14] These rulebooks mirror the format and content of rulebooks from traditional sports and emphasize objective competitive integrity throughout.[15]
The OCR’s factors do not require a post-season, but in cases where post-seasons exist, the league merely must offer some form of “conference championship”.[16] NACE and NECC offer multiple conference championships across various video game titles and genres.[17] Additionally, the OCR makes it clear in the conclusion of the letter that “it is OCR’s policy to encourage compliance with the Title IX athletics regulations in a flexible manner that expands, rather than limits, student athletic opportunities.”[18] The interpretation of “sport” in Navarro is not accommodating for student Esports athletes.[19]
B. Lasting Implications of Limiting Esports
By preventing FIT from designating Esports as a “sport” in Navarro, the Florida District Court rejects the many attempts over the past decade to offer Esports athletes the same renown as their traditional sport counterparts, while simultaneously issuing an erroneous interpretation of direct guidance from the Department of Education OCR.[20] Every year, an increasing number of schools add Esports to their athletic catalog, offering collegiate scholarships and sound funding to ensure recruits of the highest caliber.[21] The schools benefiting most from the athletic designation are smaller institutions which may not find the same level of success in traditional sports.[22] Schools like Robert Morris University, the first institution in the nation to offer varsity Esports, and Anna Maria College, a small Massachusetts college whose Esports team earned the school’s best competitive record in its inaugural season, rely on their ability to recruit students using a budget and resources equal to that of athletic teams.[23] These schools receive returns on their investment from Esports, but this would not be possible if the activity remained confined to the “club” distinction and was not able to receive proper funding.[24]
As courts decide the future of Esports, they must fully investigate the bountiful ecosystem of collegiate play rather than relying on misconceptions grown from a common-cultural perspective.[25] The Florida District Court in Navarro failed to see the legitimacy of collegiate Esports, but with more exposure and familiarity, this hopefully might change.[26]
[1] See Navarro v. Fla. Inst. of Tech., Inc., No. 6:22-cv-1950-CEM-EJK, 2023 U.S. Dist. LEXIS 27519, at 2 (M.D. Fla. Feb. 17, 2023) (finding that the Florida Institute of Technology cannot use Esports to calculate Title IX compliance).
[2] Id. at 12.
[3] Id.
[4] Id.; See Stephanie Monroe, Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance (2008).
[5] Id. at 15.
[6] Athletic Activities Counted for Title IX Compliance, supra note 4.
[7] Id.
[8] Id.; see also Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277, 291 (D. Conn. 2009)
[9] Athletic Activities Counted for Title IX Compliance, supra note 4.
[10] Id.
[11] Id.
[12] See id. (establishing factors that promote intercollegiate competition rather than just athletic activity)
[13] Id.
[14] Navarro, 2023 U.S. Dist. LEXIS 27519, at 14; Constitution and Bylaws, National Association of Collegiate Esports (2022), https://nacesports.org/wp-content/uploads/2022/02/NACE-Constitution-and-Bylaws-2-22.pdf; League of Legends Rulebook – Fall 2022, National Esports Collegiate Conference (2022), https://docs.google.com/document/d/1SD2VvckhMvNy7memr275oa8IqYqXficW3Qdpz–2hNA/edit#heading=h.xvl4cgdipn8m.
[15] See id. (establishing rulesets for each Esports title that detail competitive requirements, guidelines for matches, and integrity standards).
[16] Athletic Activities Counted for Title IX Compliance, supra note 4.
[17] National Association of Collegiate Esports, https://nacesports.org (last visited Apr. 16, 2023); NECC Esports, https://neccgames.com (last visited Apr. 16, 2023).
[18] Athletic Activities Counted for Title IX Compliance, supra note 4.
[19] See Navarro, 2023 U.S. Dist. LEXIS 27519 at 15 (denying a school from considering Esports Athletes to be part of its athletic programming).
[20] See U. S. Sports Academy, The Mission Value of Collegiate Esports, The Sport Journal (2021), https://thesportjournal.org/article/the-mission-value-of-collegiate-esports/ (last visited Apr. 16, 2023) (indicating the steady rise of Esports as an international form of competition over the last decade).
[21] Id.
[22] Sean Keeler, Growth of esports offering smaller colleges chances to compete with big boys, Global Sport Matters (Nov. 26, 2018), https://globalsportmatters.com/youth/2018/11/26/growth-esports-offering-smaller-colleges-chance-compete/.
[23] Esport Supply Editor, The Growth of Collegiate Esports, Esports Supply (Jan. 4, 2021)https://www.esportsupply.com/the-growth-of-collegiate-esports/; Anna Maria Esports, https://www.goamcats.com/sports/esports/index (last visited Apr. 16, 2023).
[24] Bill Pennington, Rise of College Club Teams Creates a Whole New Level of Success, The New York Times (Dec. 1, 2008), https://www.nytimes.com/2008/12/02/sports/02club.html (showing the minimal funding that collegiate teams outside of athletics receive).
[25]See generally, Navarro, 2023 U.S. Dist. LEXIS 27519 at 15.
[26] Id.