Current Status of Esports Related to Title IX

Fifteen years ago, a case, Biediger v. Quinnipiac University, determined that competitive cheer did not qualify as a sport under Title IX, emphasizing factors like governing rules, competitive structure, squad selection, and whether participation opportunities were genuine and comparable to other varsity sports. Biediger is often used as the measure for when new activities seek sport status Under Title IX.

As esports has grown, the same questions began to emerge, for both counting opportunities and participants under Title IX, and when determining if it should be a varsity sport. Schools and districts were unsure, as was everyone else. That all changed in February 2023, when a federal court in Florida issued a preliminary injunction in litigation against Florida Institute of Technology (“FIT”).

The judge held that FIT could not count esports participants as varsity “athletes” for Title IX proportionality calculations in the same way it counts other varsity athletes. The court’s reasoning emphasized that esports does not require “athletic ability,” lacked features typical of varsity intercollegiate teams (a mature, external governing body writing rules; progressive playoff systems; comparable recruiting), and therefore could not be treated as a varsity sport for Title IX math. FIT tracked Biediger and the Office of Civil Rights in the Department of Education (OCR) sports factors: the more an activity mirrors established varsity sports in governance, seasons, competition structure and administrative support, the more likely it can count. But then the federal court determined it did not.

The NCAA decided in 2019 not to govern collegiate esports, leaving colleges and state high school associations with no guidance. Currently, two membership associations now largely organize play: the National Association of Collegiate Esports (NACE), a nonprofit that sets eligibility standards and operates NACE Starleague for four-year institutions; and NJCAA Esports (NJCAAE), which organizes competition for two-year colleges (excluding California). These groups provide structure and season play, but institutional affiliation varies so many esports’ programs still don’t look like countable varsity sports under Title IX.

So, what does all this mean?
Esports is covered by Title IX as an education program or activity, regardless of sport status. If a school or district funds, sponsors, hosts or administers esports—varsity, club or co-curricular— Title IX prohibits sex discrimination in access, funding, staffing, facilities, eligibility and disciplinary environment. The other side of Title IX, including hostile-environment harassment or retaliation connected to an esports team, or discord server run by the institution also applies.

BUT…Esports programs are not presently countable as varsity “athletics” for the three-part test. The FIT ruling is the leading indicator: counting esports roster spots is not appropriate for Title IX compliance. And this may be better for most schools, since it is a male-dominated sport.

Where you house esports still matters. If esports sits inside athletics, uses athletics resources, and is marketed as a “varsity team,” OCR and courts will scrutinize whether the program gets the same benefits of other varsity sports. But if you put esports in student organizations or clubs, then it will be compared to those for equity. Be sure to say where it lives on your website – and be very clear. Remember, Title IX still requires equal access and nondiscrimination within esports itself.

Pay attention to governance. The NCAA is out, NACE and the NJCAAE are in, and the International Olympic Committee has announced an IOC E-games. The more governance comes to have uniform rulesets, eligibility enforcement, postseason formats and recruiting, the more likely it is to become a “sport” under Title IX. Even if your state association recognizes esports, that will not be the deciding factor on whether or not it is recognized under Title IX – much like cheerleading, dance and pom.

Pay close attention to harassment and online environments. Regardless of where it lives, and because so much of esports culture and team life is online, schools should make absolutely sure reporting channels, supportive measures and investigation procedures meet the currently operative Title IX regulations, including incidents occurring in school-sponsored esports chats, streams and practice spaces like “media rooms.”

Include esports in your annual audits for all the equity provisions of Title IX (the Laundry List). Are travel, financial support, access for boys and girls, practice times, tech, space, and coaching fairly distributed? Document your criteria and be ready to show how they are nondiscriminatory.

Stay in communication with your school, district or campus Title IX Coordinator. They need to know where you decide to house it, how you decide to fund it, and who’s in charge of it. They also need to know roster sizes, coaches and numbers of participants. You would be well-served to report this information to them much as you do any other varsity sport.

Ultimately, all signs point to the eventual recognition of esports as a recognized sport. The FIT decision’s reliance on athleticism is interesting, but as Biediger did not include it as part of its consideration, so it is unclear as to whether or not that alone would be a deciding factor if all the other Biediger parts were in place. An interesting consideration would be the impact that might have on other “non-athletic” activities and their ability to be elevated to varsity sport status.

Continue to track the organizations’ websites that are paying close attention to esports like the NJCAAe, NACE, IOC, and ATIXA (and the NCAA) – and of course High School Today – for the latest on legislation and court cases.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.