Education Law Notes  

Educational institutions across the country are pouring resources into competitive esports programs. Varsity esports teams throughout the country now offer scholarships, branded jerseys, and dedicated gaming facilities. But when it comes to Title IX, the federal law that governs equal athletic opportunity, can schools count those esports rosters toward equal opportunity in athletics compliance? A 2023 federal court ruling from Florida answered with an emphatic “no,” and the implications for schools’ Title IX planning may be significant.

The Legal Framework: Title IX’s Three-Part Test

Title IX prohibits sex discrimination in any education program or activity receiving federal financial assistance. In athletics programs, the U.S. Department of Education and federal courts evaluate compliance primarily through three tests: (1) whether athletic participation opportunities are substantially proportionate to enrollment; (2) whether the institution has a continuing history of program expansion for the underrepresented sex; or (3) whether the institution fully and effectively accommodates the interests and abilities of the underrepresented sex.

The threshold question as to what qualifies as a “sport” for purposes of this proportionality math is evaluated under a multi-factor test derived from Biediger v. Quinnipiac University, which held roughly fifteen years ago that competitive cheerleading did not then qualify as a “sport” for purposes of Title IX compliance. Courts examine whether an activity has: a mature governing body setting rules of competition; a progressive, structured competitive season and playoff system; recruiting practices comparable to other sports; and genuine participation opportunities comparable to those offered in established varsity sports.

The Landmark Florida Institute of Technology Ruling Held That Esports Fails the Test

In February 2023, the U.S. District Court for the Middle District of Florida issued what is widely regarded as the first federal court decision addressing whether esports qualifies as a “sport” under Title IX. The case involved the Florida Institute of Technology (FIT), which had demoted its men’s varsity rowing team to club status. Six former rowers sued, arguing that FIT was undercounting genuine male athletic opportunities while improperly inflating its numbers by including esports participants as varsity athletes.

The court agreed, finding that esports:

• Does not require “athletic ability” in the traditional sense;
• Lacks a mature external governing body setting the actual rules of competition (unlike the NCAA for traditional sports);
• Does not clearly involve off-campus recruiting comparable to traditional athletics; and
• Does not compete through a progressive playoff system similar to NCAA championships.

The court ordered full reinstatement of the rowing team’s funding and staffing. While only applicable in Florida, the case provides a likely road map for other courts analyzing this issue. 

However, in 2024, the International Olympic Committee (IOC) approved the Olympic Esports Games.  The IOC’s website notes that their objective is “to deliver the inaugural Olympic Esports Games as soon as possible and establish an event that bridges esports and traditional sports in a way that inspires and engages audiences worldwide.”  If the IOC delivers on this mission, it may change the calculus in the future as to whether esports will be considered “athletics” for purposes of Title IX equal opportunity calculations. 

Where Esports Is Housed Matters: Athletics vs. Student Affairs

Many educational institutions house esports under student affairs, student life, or co-curricular offices rather than athletics departments. This organizational choice carries legal significance. When esports operates outside athletics, the sport-specific three-part proportionality test does not directly apply. Title IX’s general nondiscrimination mandate still governs, however, and schools must ensure equitable access, funding, and treatment within esports regardless of which office administers the program.

Conversely, schools that attempt to elevate esports to varsity athletic status face the FIT court’s holding head-on: those participants likely will not be counted as “athletes” for proportionality purposes under the current legal landscape.

High School: Uncharted Territory

At the high school level, the picture is even murkier.  State athletic associations vary widely with some recognizing e-sports as a varsity activity, while others relegate esports to club status, and many have issued no guidance at all.

The U.S. Department of Education’s general policy interpretations on athletics apply to high school as well as post-secondary programs. This means the FIT court’s reasoning—particularly its emphasis on esports lacking “athletic ability” and a mature governing structure—has persuasive force for high school administrators evaluating Title IX compliance. State athletic association recognition alone is likely insufficient for federal Title IX classification; schools should not assume that a state’s decision to sanction esports automatically means those participants can be counted toward the athletics proportionality test.

The Gender Participation Gap: An Independent Title IX Concern

Even setting aside the “is it a sport” question, esports presents its own gender equity challenges. Collegiate esports rosters and scholarship distributions are heavily male-dominated. A 2021 study found that over 90% of roster spots and 88% of available scholarship funds were awarded to men.[1]  This raises equity concerns that Title IX’s general nondiscrimination principles may address regardless of whether esports is classified as a “sport.” 

Practical Implications for Schools

As of now, there are a few key takeaways:

• Do not rely on esports to fix a proportionality gap. Under the current legal landscape, esports participants most likely cannot be counted toward Title IX’s three-part test for determining whether a school provides equal opportunity in athletics.
• Audit esports programs on their own terms. Because Title IX’s general nondiscrimination mandate covers any education program or activity, schools should evaluate equitable access, funding, facilities, coaching, and treatment within their esports programs regardless of the programs’ departmental home.
• Be intentional about organizational placement. Housing esports under student affairs avoids triggering the athletics proportionality framework, but does not exempt the program from Title IX altogether.
• Monitor the governance landscape. The trajectory toward esports qualifying as a Title IX “sport” may well change over time. If and when a governing body achieves NCAA-like stature for esports, the legal calculus could shift.
• High school administrators: proceed with caution. Absent uniform federal or state guidance, the safest approach is to treat esports as a co-curricular activity subject to general Title IX nondiscrimination requirements—but not as a varsity sport for proportionality purposes.

If you have questions about Title IX compliance, you can reach out to Attorney Melinda Kaufmann at mkaufmann@pullcom.com or (860) 424-4390, or any of the other attorneys in Pullman & Comley’s Education Law practice.

[1] Jake Seiner, AP Study: Nearly 90% of Esports Scholarships Going to Men, AP News (Mar. 12, 2021), AP study: Nearly 90% of esports scholarships going to men | AP News