The First Line In The Sand: Florida Federal District Court's Ruling On Title IX's Applicability To College ESports

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As esports have grown in popularity and commercial relevance, particularly as a professional pursuit, their place among colleges and universities has also escalated.
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As esports have grown in popularity and commercial relevance, particularly as a professional pursuit, their place among colleges and universities has also escalated. The question of whether collegiate esports teams fall under the same legal umbrella as other college athletic programs and are subject to Title IX – the federal law that prohibits discrimination on the basis of sex at federally funded educational institution – is just now beginning to reach the courts for consideration.

In June 2022, the Florida Institute of Technology (FIT) announced its intention to cut five of its varsity sports programs, among them the men's rowing team, and transition those sports to club-level competition. In response, six members of the men's rowing team brought a lawsuit against the university in October 2022 in the U.S. District Court, Middle District of Florida (Navarro, et al. v. Florida Institute of Technology, Inc.), alleging three violations of Title IX.

The rowers then moved for a preliminary injunction, asking the court to reinstate the men's rowing team at FIT until their case could be heard on the merits. While the rowers' allegations in the complaint and their arguments in the motion involve an established sport, the university, in its opposition, raised an argument which requires the acceptance of esports as an actual sport for purposes of Title IX compliance in order to hold merit. Judge Carlos E. Mendoza's decision on the rowers' motion provides the first judicial interpretation and decision of the question, ultimately determining (at least for now) that esports do not fall under the purview of Title IX.

In order to demonstrate entitlement to a preliminary injunction pursuant to Eleventh Circuit case law, the rowers were required to establish several factors, one of which is that their case has a substantial likelihood of success on the merits. To properly assess this likelihood of success requirement, the district court analyzed the facts alleged against the Title IX requirements binding the school. The test for equal participation opportunity in athletic programs under Title IX (as set forth by the Office of Civil Rights, or OCR) considers "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes." 34 C.F.R. § 106.41(c)(1). Universities can demonstrate compliance with this requirement by satisfying any one of the following three components of the test (also known as the three-part test):

  1. Intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; OR
  2. Where the members of one sex are underrepresented among intercollegiate athletes, the institution can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; OR
  3. Where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion as described at number 2 above, the institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

The rowers argued that the university failed to satisfy any of the pathways provided by the three-part test. Responding in opposition to the rowers' argument, the university only focused on the athletes' argument with respect to the first pathway, i.e., substantial proportionality. Asserting this prong, the rowers claimed that the university had fallen short of establishing substantial proportionality between its student enrollment and athletic participation for 16 of the preceding 18 years. They produced evidence showing that:

  • In 2018-2019, the university's enrollment totaled 3,261 undergraduate students, 2,325 (71.3%) of whom were men and 936 (28.7%) of whom were women. Of their 533 athletes, however, only 342 were men (64.2%). (This amounted to a shortfall, or "participation gap," of 132 athletic opportunities for men.)
  • In 2021-2022, the shortfall was 117 opportunities for men.
  • In 2022-2023, the shortfall is 121 opportunities for men.

Since the university was already in violation of Title IX for disproportionate male athletic participation, the rowers argued that the school could not legally cut a viable men's team.

The university responded by arguing that the calculation should be expanded to include (1) full-time undergraduates enrolled in the school's online-only program among the total undergraduate population and (2) male esport student-athletes among the male athlete count. In calculating the participation gap in this manner, the shortfall would only amount to .16%, or three male athletes. The university argued that its coed esports program should be considered an athletic program pursuant to Title IX, as it is supported through its athletic department and treats its esports student-athletes similarly to its traditional student-athletes. The university asserted that esports athletes: have access to the same support services, like athletic trainers; are selected through tryouts; will be eligible to receive scholarships beginning in Fall 2023; and prepare and compete pursuant to a set schedule determined by the National Association of Collegiate Esports and National Esports Collegiate Conference.

The OCR does not specifically define the word "sport." It explained in its 2008 "Dear Colleague" letter, however, that an institution's established sports can be counted for Title IX purposes if the institution is a member of an intercollegiate athletic organization, e.g., the NCAA, and if the organization's nondiscretionary requirements satisfy the factors announced by the OCR.

In analyzing esports' potential status as a sport under Title IX in the Navarro case, Judge Mendoza cited the Second Circuit's decision in Biediger v. Quinnipiac University. In Biediger, the Second Circuit held that competitive cheerleading could not be found to be a sport for Title IX purposes, as it was not sanctioned by the NCAA. The Second Circuit acknowledged that Quinnipiac's athletic department structured and administered the competitive cheerleading program consistent with its other varsity sports, that the practice time, regimen, and venue were also consistent, and that the season length and purpose of the team was comparable to varsity sports. However, it ultimately concluded that the lack of off-campus recruitment and the lack of a uniform set of rules, intercollegiate competition, or progressive playoff system distinguished it from traditional varsity sports.

By contrast, in Navarro, Judge Mendoza found that, where cheerleading involves physical, athletic ability, esports requires no athletic ability. Additionally, there are no rules for the 13 recognized competitive esport video games that are promulgated by an esport national governing organization and sport governance associations have no control over the rules of the games themselves. There was also no evidence that FIT's esports program recruits off-campus or that it competes in a progressive playoff system. And lastly, there was no evidence that the school's esports participants practice or compete "in a manner consistent with the school's other varsity teams." Biediger. Taken together, the court "could not hold that the school's esports program provided genuine athletic participation opportunities under Title IX."

Moreover, since esports participants could not be included in the calculation of the participation gap under the substantial proportionality prong of the three-part test, the university would have a shortfall of 62 male athletes even if online students were included among the total student enrollment headcount. Therefore, the court found that it did not need to decide at this time whether online-only students should be included in the calculation of the participation gap and the university's failure to satisfy any prong of the three-part test resulted in a finding that the rowers were indeed substantially likely to succeed on the merits.

The rowers were also able to satisfy the remaining three requirements necessary to demonstrate their entitlement to a preliminary injunction. The motion was, therefore, granted by the court and the university is now required to reinstate the men's rowing team and to refrain from eliminating any men's intercollegiate athletic team until the matter can be decided on the merits by either trial or a further order of the court.

At this time, it is unclear whether FIT will seek to appeal the decision to the Eleventh Circuit or how the Eleventh Circuit would ultimately decide the issue. It is even less clear how the issue would be decided if it arose in other jurisdictions. Nevertheless, the decision is profound in its inaugural bright line holding that esports are not subject to Title IX scrutiny. Going forward, colleges and universities can be guided by the Navarro decision in their internal Title IX audits but should continue to keep an eye on case law that may alter or qualify the determination or may reach entirely different – and controlling – holdings in their respective jurisdictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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