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USA judge rules that esports is not a sport under Title IX: What now?

Gamer Room
Tuesday, 23 May 2023 By Katherine Brodie

In February, a federal district court judge in Orlando ruled that six Florida Institute of Technology (“FIT”) students ‒ former members of FIT’s terminated varsity rowing team ‒ were “irreparably harmed” when the school demoted the rowing team from a varsity sport to a club sport (an intercollegiate recreational team not governed by the National Collegiate Athletic Association).

The court order, in Navarro, et al. v. FIT1 (“Order”), granted the Florida men a preliminary injunction. This forced the school to reinstate funding and resources for the rowing team to allow it to continue to compete at a varsity inter-collegiate level until the athletes’ allegations that FIT violated Title IX of the Education Amendments Act of 1972 by terminating their varsity team could be heard on the merits. The court also enjoined the school from eliminating any other men’s team until the court orders otherwise. No federal court has previously addressed the specific issue of whether esports is a sport under Title IX.

At issue in the case was whether FIT could count esports athletes in its calculation of intercollegiate athletic opportunities to determine whether FIT was, or was not, providing enough athletics opportunities for male students. Had the court concluded esports opportunities are equivalent to traditional sports team participation, this judge would have broken entirely new Title IX legal ground given that no federal court had addressed the issue. However, by not doing so, he handed the rowers a win.

In reaching the decision, the judge agreed with the rowers’ argument that esport athletes should not be counted as athletes for purposes of determining whether FIT was in violation of Title IX by failing to provide adequate competitive sports opportunities to male athletes as compared to female athletes. The judge agreed that FIT’s esports program is not a “sport” within the purview of Title IX, and therefore by not counting esports athletes, FIT’s proportion of male athletic opportunities was in danger of violating Title IX and cutting the rowing team would make it worse.

This holding provides at least temporary relief for the rowers, but raises more questions than it answers regarding the staying power of the court’s rationale, the role of esports in college athletics and the role of technology in reshaping the meaning of sex and gender in the context of athletics under Title IX.

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Katherine Brody

Katherine Brodie

Katherine Brodie leads the Washington, D.C. team of Duane Morris' national education law and policy practice and serves as a Team Lead for the Duane Morris Education industry group. She is one of a small number of attorneys in the United States with a daily practice devoted primarily to the needs of educational institutions (nonprofit, public and proprietary), education associations, education companies and investors in education. She has a strong interest in supporting mission-driven educational institutions and their partners to effectively lead and adapt to the rapid pace of change in the U.S. education sector while maintaining high quality educational services as measured in cost, accessibility and student outcomes.

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