Are Video Games a Sport? United States District Court Says Not for Title IX Purposes

By: Katie Braile*                                                                                  Posted: 11/15/2023

In recent years, the prevalence of esports has increased tremendously.[1]  The global competitive gaming market was valued at over one billion dollars last year and is projected to grow over seventeen percent annually between now and 2030.[2]  As esports continues to rise in popularity, universities throughout the United States have started to form gaming teams of their own.[3]  Many schools are offering students scholarships for their participation on esports teams, and others have even invested in constructing arenas to host competitions.[4]  Given the amount of resources that schools are directing towards the development of these programs, some have raised questions about the Title IX implications of gaming and whether it should be considered a sport subject to the statute’s mandates.[5]

Title IX in the Context of Collegiate Athletics

Title IX is a law that prohibits federally funded schools from engaging in sex-based discrimination and is widely credited for catalyzing the growth of women’s sports.[6]  To comply with the statute, school athletics programs must adhere to the following requirements:

[A]ll [financial] assistance should be available on a substantially proportional basis to the number of male and female participants in [an] institution's athletic program. . . . [M]ale and female athletes should receive equivalent treatment, benefits, and opportunities. . . . [And] the athletic interests and abilities of male and female students must be equally effectively accommodated.[7]

Schools can prove compliance with the last prong in one of three ways: (1) by demonstrating that the number of opportunities available to men and women student-athletes are “substantially proportionate” to their percentages of the student body, (2) by showing that the university has and will continue to create more participation opportunities for the underrepresented sex, or (3) by demonstrating that the university is fully accommodating the interests of students of the underrepresented sex.[8]

Gaming Is Not a Sport According to United States District Court

The question of whether esports counts as a sport for the purposes of Title IX was most recently addressed in Navarro v. Florida Institute of Technology, Inc.[9]  In that case, a group of student-athletes brought suit against the Florida Institute of Technology (“FIT” or the “University”) after the men’s rowing team was disbanded and converted to an intramural club sport.[10]  The athletes alleged that by doing so, the University violated Title IX because it failed to provide them with equitable athletic participation opportunities in comparison to women.[11]

To support this assertion, the athletes offered data to demonstrate that the number of available athletic opportunities to men was not “substantially proportionate” to their percentage of the student body.[12]  According to their calculations, sixty-four percent of the University’s athletes were male during the 2018 to 2019 academic year.[13]  Still, they made up over seventy-one percent of its total undergraduate enrollment.[14]  The data also indicated shortfalls in the years 2021 through 2023.[15]  Based on these facts, the students sought a preliminary injunction to reinstate the men’s rowing team.[16]

In its defense, FIT pointed to the fact that the students’ calculations did not account for esports participants and that these disparities would have been smaller had they been included.[17]  This raised the question of whether esports should qualify as an athletic participation opportunity under Title IX.[18]  Arguing in the affirmative, FIT pointed to the fact that its gaming program is part of the University’s athletics department and that team membership is limited to those who are selected through a try-out process.[19]  Furthermore, the esports team members are subject to similar treatment as other student-athletes, and compete according to a set schedule established by a third-party organization.[20]

The District Court for the Middle District of Florida rejected FIT’s position and ruled that gaming is not a sport falling within the scope of Title IX.[21]  The court’s reasoning rested primarily on the fact that esports is not an activity that requires players to possess any athletic ability.[22]  Moreover, rules of esports competition are promulgated by businesses that design and manufacture the games as opposed to an organization like the NCAA.[23]  This lack of oversight by a governing body supported the court’s holding, and a preliminary injunction to restore the rowing team was accordingly granted.[24]

Area of Effect: How the Rule Could Impact Athletes Going Forward and Exacerbate the Gender Imbalance in Gaming

The district court’s rule that video games are not a sport under Title IX is problematic and could exacerbate the gender imbalance in gaming.[25]  Evidence shows that women are largely underrepresented in competitive esports at the collegiate and professional levels^][26]  For example, although women make up just under half of all video game players, they only comprise about eight percent of collegiate esports participants[27]  At the professional level, this number is even smaller, with women only making up five percent of the competition.[28]  This disparity has been attributed to a culture of misogyny and sexual harassment that is pervasive throughout the gaming industry.[29]  Additionally, the fact that most esports scholarships are awarded to men rather than women represents another gender barrier.[30]  Legal experts have described the Navarro ruling as “dangerous,” explaining that it could impede enforcements against sex-based discrimination in esports at the collegiate level.[31].  Additionally, some have said that the court failed to take an inclusive approach in reaching its holding and that, by doing so, it went against policy guidance from the Department of Education’s Office of Civil Rights.[32]

It remains to be determined whether the district court’s decision will be appealed to the Eleventh Circuit, but until then, schools have reason to omit esports from their Title IX audits.[33]  This will likely make it appear as though men are receiving fewer opportunities and scholarship dollars from athletics departments than they are and could put women at a disadvantage as a result.[34]  Although it is unclear how other courts would rule on this issue, the Navarro holding is a signal to institutions of higher education that if they want gaming to be considered a sport for Title IX purposes, they will have to administer their esports varsity programs in a manner more similar to that of traditional collegiate sports.[35]

​​*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law.

[1] See Gautum Raturi, The Growing Trend of Esports: Why 2023 Is Going to Be a Massive Year for Esports, Medium (Dec. 1, 2022), https://medium.com/codex/the-growing-trend-of-esports-why-2023-is-going-to-be-a-massive-year-for-esports-e17fe39ac58a (stating popularity of online streaming and increased investment from brands has stimulated growth of esports market).

[2] See Esports Market to Hit $4.47 Billion by 2030: Cognitive Market Research, Bloomberg (Apr. 12, 2023 10:02 AM), https://www.bloomberg.com/press-releases/2023-04-12/esports-market-to-hit-4-47-billion-by-2030-cognitive-market-research (stating esports generated $1.42 billion in global revenue in 2022 and has projected compound annual growth rate of almost eighteen percent for years 2023 through 2030).  This report found that esports growth is largely driven by increased smartphone and Internet usage.  See id. (stating increased number of Internet users has allowed more people to create esports livestreaming accounts).  The report also stated that the opportunity to compete and earn money is another reason that more people are participating in esports.  See id. (stating “players can win real money [and] even make a full-time career by participating in competitions.”).

[3] See Jane K. Stoever, Title IX, Esports, and #EToo, 89 Geo. Wash. L. Rev. 857, 900-02 (2021) (stating that number of colleges with varsity esports teams is increasing); see also Sean Morrison, List of Varsity Esports Programs Spans North America, ESPN (May 15, 2018 5:31 PM), https://www.espn.com/esports/story/_/id/21152905/college-esports-list-varsity-esports-programs-north-america (stating over one hundred universities have varsity esports teams).  These include schools such as Georgia State University, Ohio State University, and University of California-Irvine, among others.  See id. (providing list of schools across North America with varsity esports teams).

[4] See Stoever, supra note 3 at 900 (explaining some schools are constructing esports arenas and offering gaming scholarships to attract students interested in science, technology, engineering, and math).  Some universities have also received money from the Department of Homeland Security to invest in esports facilities.  See id. (describing significant investments made in collegiate esports programs).

[5] See Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–1688 (2022) (“No person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”); see also Stoever, supra note 3 at 857 (stating that Title IX concerns have been raised with respect to esports as its prominence on college campuses continues to grow).

[6] See Maggie Mertens, 50 Years of Title IX: How One Law Changed Women’s Sports Forever, Sports Illustrated (May 19, 2022),  https://www.si.com/college/2022/05/19/title-ix-50th-anniversary-womens-sports-impact-daily-cover (detailing history of Title IX and explaining how it helped create equitable opportunities for women athletes); see also Sarah Pruitt, How Title IX Transformed Women’s Sports, Hist. Channel (Aug. 16, 2023), https://www.history.com/news/title-nine-womens-sports (describing Title IX as “groundbreaking gender equity law [that] made a lasting impact by increasing the participation of girls and women in athletics.”).

[7] Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 40 Fed. Reg. 71413, 71414 (Dec. 11, 1979) (listing three prongs of Title IX compliance that collegiate athletics programs must adhere to).

[8] See id. at 7148 (explaining how universities can demonstrate that interests and abilities of men and women student-athletes are being equally accommodated).

[9] See Navarro v. Fla. Inst. of Tech., Inc., No. 6:22-CV-1950-CEM-EJK, 2023 WL 2078264, at 5 (M.D. Fla. Feb. 17, 2023) (examining whether esports are sport for Title IX purposes).

[10] See id. at 1 (indicating that students filed lawsuit after rowing team was discontinued along with several other sports).

[11] See id. at 2 (explaining that although students alleged violations of all three Title IX requirements, their claim that FIT failed to provide equitable participation opportunities to men “form[ed] the basis of [their] request for a preliminary injunction” to reinstate rowing team).

[12] See id. at 3 (explaining that, although there are three ways to discern whether equitable participation opportunities are being provided, “substantial proportionality” test is only relevant standard in this case).  The court explains that “substantial proportionality” does not require “exact proportionality” given that enrollment rates fluctuate.  See id. (stating “exact proportionality” would be “unreasonable” standard).

[13] See id. at 4 (describing evidence brought by students to support their assertion that FIT failed substantial proportionality test and violated Title IX).

[14] See id. (describing data offered by students to illustrate disparate number of participation opportunities available to men versus women at FIT in 2018-2019 academic year).  The data that the students presented indicated that the percentage of athletic participation opportunities available to men was less than their percentage of the undergraduate student body.  See id. (stating data “represent[ed] a shortfall of 132 opportunities for men” based on their percentage of undergraduate student body in 2018-2019 academic year).

[15] See id. (saying data also showed disparities in participation opportunities in years 2021 through 2023).  Based on these calculations, the students argued that “FIT was already in violation of Title IX” when it cut the men’s rowing team and was therefore not legally allowed to do so.  See id. (explaining how evidence supported students’ argument that FIT violated Title IX).

[16] See id. (stating students used data to demonstrate “substantial likelihood of success on the merits” needed to obtain injunction).

[17] See id. (explaining FIT’s argument that number of athletics opportunities available to men would have been proportional had esports athletes and online students been included in calculations).

[18] See id. (stating FIT’s position rested on assumption that esports is sport for purposes of Title IX).

[19] See id. at 5 (describing representations made by FIT regarding management of its esports program).  FIT also said that esports participants were going to be eligible for scholarships beginning in 2023.  See id. (explaining comparisons draw by FIT between esports participants and “traditional” student-athletes).

[20] See id. (summarizing FIT’s explanation as to why esports should be considered sport under Title IX).  FIT also stated that the esports participants have access to similar resources as other student-athletes such as athletic trainers.  See id. (showing that esports participants receive similar services and support as other student-athletes).

[21] See id. (stating “the Court cannot hold that FIT's esports program provides genuine participation opportunities under Title IX”).  To reach this conclusion, the court analyzed several factors pertaining to the “activity’s structure, administration, team preparation, and competition.”  See id. (explaining factor test promulgated by Office of Civil Rights of United States Department of Education).

[22] See id. (saying esports is not sport under Title IX because it does not require players to have athletic skill).  The court based its reasoning on the Second Circuit’s decision in Biediger v. Quinnipiac University which held that cheerleading is not a sport for Title IX purposes.  See id. (stating Second Circuit found cheerleading is not sport for Title IX purposes due to “lack of off-campus recruitment, a uniform set of rules, intercollegiate competition, or a progressive playoff system”) (citing Biediger v. Quinnipiac Univ., 691 F.3d 85, 102–05 (2d Cir. 2012)).  The court stated that whereas cheerleading presented a “‘close-call’ application of [the] factors,” esports does not because it requires no athletic skill.  See id. (distinguishing esports from cheerleading) (citing Biediger, 691 F.3d at 102–05).

[23] See id. (explaining that governing body like NCAA does not dictate rules of games played in esports competitions).

[24] See id. (stating esports is “not governed in a manner necessary to qualify as” sport under Title IX).  The court granted the preliminary injunction to reinstate the men’s rowing team finding FIT violated Title IX.  See id at 9.

[25] For discussion of how court’s ruling could exacerbate gender imbalance in gaming, see infra notes 25–32 and accompanying text.

[26] For discussion of gender disparity in gaming, see infra notes 27–29.

[27] See Erick Orantes & Aalok Sharma, Title IX Compliance Creates Hurdles for Collegiate Esports Programs, Stinson LLP (Mar. 1, 2019), https://www.stinson.com/newsroom-publications-Title-IX-Compliance-Creates-Hurdles-for-Collegiate-eSports-Programs (stating women make up nearly half of all gamers but are underrepresented in professional esports competitions); see also Christina Stylianou & Gregg Clifton, What Esports Ruling Means For College Title IX Compliance, Law360 (Mar. 24, 2023 3:53 PM), https://www.law360.com/articles/1589048/what-esports-ruling-means-for-college-title-ix-compliance (indicating women make up only eight percent of collegiate esports participants).

[28] See Orantes et al., supra note 27 (stating “women . . . make up only five percent of professional esports athletes”).  This is because women in esports are often subjected to “pay gaps, cyberbullying . . ., and hostile team cultures.”  See id. (describing challenges faced by women esports competitors).

[29] See Matt Gardner, The Ugly Hatred Faced by Women in Esports, and How We Fight Back, Forbes (Mar. 19, 2021 11:00 AM), https://www.forbes.com/sites/mattgardner1/2021/03/19/the-ugly-hatred-faced-by-women-in-esports-and-how-we-fight-back/?sh=1be548d337d8 (describing report published in 2020 finding that almost half of women gamers have been subjected to sex-based discrimination).  Some have gone so far as to conceal their identities online to avoid harassment.  See id. (describing measures taken by some women gamers to protect against discriminate treatment); see also Stoever, supra note 3 at 902 (stating “harassment . . . by men of women and nonbinary individuals . . . has been a substantial barrier to [their] safe participation” in esports); see also Stylianou et al., supra note 27 (describing esports environment as one that “foster[s] . . . sex discrimination and sexual harassment, cyberviolence and abuse.”).

[30] See Stoever, supra note 3 at 862–63 (stating “esports scholarships and team memberships have mostly been awarded to male students from affluent backgrounds”).

[31] See Stylianou et al., supra note 27 (explaining that court’s ruling could “permit loopholes for bullying [and discrimination to go] unchecked”).

[32] See id. (explaining that court’s ruling “contradict[ed] the OCR's overarching policy of taking an inclusive approach” to determining whether activity is sport under Title IX).  Legal experts have also noted that the inclusion of esports in the Olympic Games supports the position that it should be considered a sport for Title IX purposes.  See id. (stating that even though esports is not recognized as sport by NCAA, it is included in Olympic Games).

[33] See id. (stating trial court’s ruling has not yet been appealed and that its decision provides guidance to universities in conducting Title IX audits).

[34] See Steve McCaskill, Esports Not a Sport for Title IX in Federal Court Ruling, SportsPro Media (Feb. 24, 2023), https://www.sportspromedia.com/news/esports-not-a-sport-for-title-ix-in-federal-court-ruling/ (saying court’s holding will have “implications for how . . . colleges calculate their compliance with Title IX”).

[35] See Navarro v. Fla. Inst. of Tech., Inc., No. 6:22-CV-1950-CEM-EJK, 2023 WL 2078264, at 5, (M.D. Fla. Feb. 17, 2023) (holding that FIT’s esports program does not count as athletics participation opportunity because it is not administered in manner similar to that of other varsity teams).  The court distinguished FIT’s esports team from other varsity sports in that it does not compete within “a progressive playoff system” and its members were not recruited off-campus by the university.  See id. (pointing out differences between how esports team and other varsity programs operate at FIT); see also McCaskill, supra note 34 (stating “esports may have to adopt . . . conventions of traditional sports in order to be considered equal”).