Will the NCAA move to sponsor U.S. collegiate esports? The story so far and key issues to watch

Published 26 March 2019 By: Thomas Baker

Esports USA

In 2019, Newzoo estimates that esports will balloon into a billion-dollar industry.1 One example of its meteoric rise were the viewing figures for the League of Legends World Championship 2018, which reportedly totaled 99.6 million unique viewers over the course of the event.2 To put those numbers in perspective, the 2019 Super Bowl attracted 98.2 million viewers.3 Needless to say, there is money to be made and the National Collegiate Athletics Association (NCAA) has expressed interest in moving into the business of collegiate esports, which many prominent pundits predict will be the “next big thing.4

Last October, the NCAA’s Board of Governors conducted discussions on the possibility of sponsoring collegiate esports by regulating intercollegiate competition. Despite the promise, their talks raised some serious concerns5 over aspects of esports that do not easily conform to what the NCAA’s asserts as its core values.6 There is also unease from within the esports industry itself, with some expressing concerns7 over potential NCAA involvement because of its controversial amateurism model for intercollegiate athletics.8

This article examines the issues facing U.S. collegiate esports with a particular focus on the viability of NCAA involvement in managing and regulating the emerging sport phenomenon.

THE ISSUES WITH GAMES’ PRODUCERS OWNING INTELLECTUAL PROPERTY

Esports” is used as an umbrella term for a wide range of competitions involving popular video game titles. “Collegiate esports” describes competitive video game play in which leagues and tournaments require all contestants to be full-time college students.

The “sports” aspects of both the professional and collegiate versions of esports are the popular video game titles used in competitions (e.g., League of Legends or Overwatch). The first key point to note is game producers own the intellectually property in the game - i.e. they own the “sports” (games) used for professional and collegiate esports. No other NCAA sports (e.g. basketball or volleyball) share this trait. Accordingly, the NCAA will need authorization and cooperation from game producers if it is to create its own leagues and tournaments around game titles (e.g. Riot Games owns League of Legends). Currently, the majority of collegiate esports competitions are operated by the game producers themselves or by third-parties that have licensed the rights to use games for competitive play.9

Game producers might, at first blush, perceive potential NCAA involvement in esports as valuable to growing collegiate esports into a credible and profitable enterprise. After all, the NCAA has managed to commercialize other “amateur” college sports into multi-billion dollar industries. However, any partnership the NCAA has with game producers will be complicated and perhaps even contentious at times because the interests of for-profit video game producers may not always align with those belonging to an association consisting of non-profit colleges and universities that operate profit-maximizing sport competitions.

Specifically, there is reason to question whether game producers will be happy licensing the use of their products so that the NCAA is able to create an industry of collegiate competitions around them that brings in wealth mostly for the member institutions and the NCAA. On the other hand, there is reason to question whether the NCAA and its members will see collegiate esports as worthy of investment if third-party game producers control the competitions and the bulk of the monies generated therefrom. Initially, game producers supported esports competitions as means for generating and maintaining interest in their commercial video game products. However, the industry of esports has now grown to the point that the competitions themselves are valuable and potentially profitable properties.

Another concern with the role of producers in collegiate esports involves their interest in discontinuing production or making updates to their games. The NCAA will need to recognize that they will not have control over the constitutive components of the sports used for their competitions and may have to consider long-term consumer interest in deciding which individual “sports” (game titles) to sponsor for collegiate esports.

In terms of title selection, NCAA President Mark Emmert expressed serious concerns with the level of violence in video games that are also popular esports. Speaking to the 2019 NCAA Convention, Emmert stated that the NCAA doesn’t, “particularly embrace games where the objective is to blow your opponent’s head off.10 First-person shooter (FPS) games involve a first-person perspective in which players use firearms to kill various types of enemies, including other players, and based on Emmert’s comments it seems unlikely that the NCAA will (at least for now) utilize FPS titles for competition. The aspects that make certain types of games more popular than others in the consumer market may also disqualify them from NCAA inclusion.11

THE AMATEURISM DILEMMA

The NCAA remains consistent that “amateurism” is a core value that it will protect at all costs. The NCAA has had to legally defend its concept of amateurism in a line of antitrust actions brought by student-athletes, coaches, and other interested parties.12 To date, the NCAA has managed to maintain its amateurism model on the basis that doing so serves a procompetitive purpose of preserving consumer interest in college sports. The notion is that paying college athletes will destroy the nature of the academic tradition for college athletics and cause consumers to turn away from the NCAA’s products. Accordingly, courts in six different federal circuits have followed dicta from the Supreme Court in NCAA v. Board of Regents for the position that the NCAA must have wide legal latitude if it is to preserve the “revered tradition of amateurism.13

The problem for the NCAA is that consumers of esports have no foundation for valuing amateurism so there no legal basis for its preservation within collegiate esports. After all, consumer interest in a product does not turn on the preservation of something that never existed for that product. That problem is compounded by the reality that most college esports competitors wouldn’t qualify as “amateurs” under the NCAA’s definition due to their having received some form of compensation for playing esports or streaming game play on Twitch14

In 2017, University of Central Florida enforced NCAA amateurism restrictions concerning the commercial use of athlete likeness15 against its kicker Oscar De La Haye by requiring him to shut down a YouTube channel that he owned and operated or end his involvement with the team.16 De La Haye’s conduct in streaming original content for profit on YouTube is common among those who compete in esports, including collegiate esports. For the NCAA to embrace esports, it will likely need to relax its amateurism rules that restrict student-athlete compensation and the use of their own names, images and likenesses in commercial settings.17 The NCAA will need to change its concept of amateurism so as to permit athletes to monetize their streaming if it wants to incorporate esports into its sponsored sports.

POTENTIAL MEMBERSHIP PROBLEMS

Any NCAA involvement in collegiate esports would likely extend to regulating its member institutions and that could pose some serious concerns based on the present makeup of collegiate esports competitions. Most collegiate esports leagues and tournaments are open to club or varsity teams. Varsity esports teams are those that are officially sponsored by their schools and include scholarship players. There are 125 varsity esports programs, but that number has more than doubled in the past 12 months with more schools expected to add varsity programs in the coming months and years.18 Among the varsity programs, close to half are not NCAA member institutions. If the NCAA moves into the space of collegiate esports it will need to decide whether to extend invitations to varsity programs that are housed within schools that are not NCAA members.

Additionally, there is already a member-managed regulatory body for varsity esports in the form of the National Association of Collegiate Esports (NACE).19 The NACE was created to regulate varsity esports similar to how the NCAA regulates its sports. And like the NCAA, the NACE enforces bylaws that were developed through shared governance by its member institutions. The NACE, however, is open to any varsity esports program and its membership is a mix of members of the NCAA and the National Association of Intercollegiate Athletics (NAIA).20 If the NCAA injects itself into the regulation of collegiate esports, it will likely do so to the detriment of both the NACE and its members that are not already NCAA member institutions. It will be interesting to see if the NCAA works with (or develops new) collegiate esports leagues and tournaments to limit the field of competition to NCAA schools. If that happens, the economic harms incurred by excluded schools with esports teams could prompt antitrust litigation.

CONCLUDING THOUGHTS

In deciding its next step, the NCAA will likely need to determine whether the juice is worth the squeeze, in that injection into esports brings with it serious complications and possible threats to the NCAA’s core values; particularly its precious amateurism model for intercollegiate athletics.

Even if the NCAA remains on the sidelines, its influence will still be felt through its members who are active in the NACE. The NACE is also a member-managed association and more than half of its members are NCAA institutions. As more and more NCAA schools launch varsity esports programs it seems likely that they will bring their values and interests with them. While the NACE does not currently have an amateurism regime in place that is influenced by or replicates the NCAA’s model, it may develop one in the future if enough members push for it.

In the very near future, it’s likely that the NCAA schools will outnumber the others within the NACE. So the NCAA is in a unique situation in that it could actually set the stage for eventual involvement by influencing esports through its members.21 Whether or when the NCAA will sponsor collegiate esports remains unclear. What is clear is that the NCAA is interested in this emerging phenomenon and the shape and structure of collegiate esports has yet to be constructed.

WHAT TO WATCH MOVING FORWARD

Looking ahead, the key points to watch are:

  1. Whether the NCAA will once again address the possibility of incorporating collegiate esports at the 2019 Board of Governors meeting.

  1. The number of NCAA institutions that add varsity esports programs in 2019.

  1. Any changes made to the NACE’s athlete regulations that bring its rules closer to the NCAA’s amateurism rules (e.g. if the NACE adds rules restricting athlete publicity rights).

  1. The development and commercialization of collegiate esports tournaments and leagues.

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Author

Thomas Baker

Thomas Baker

Associate Professor, University of Georgia

Dr. Thomas A. Baker III is a tenured Associate Professor of Sport Law at the International Center for Sport Management (ICSM), University of Georgia. He is also the Editor-in-chief for the Journal of Legal Aspects of Sport (JLAS), the only peer-reviewed sport law journal in the United States.

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