Professors Examine Esports and Title IX at SRLA Conference

(The following is the capturing of a presentation on Esports and Title IX at the recent SRLA Conference in Atlanta. Making the presentation were Dr. Jeffrey Levine, J.D.; Ph.D. (Drexel University), Dr. Lindsey Darvin, Janelle E. Wells, Ph. D, and Anita Moorman, J.D. (University of Louisville).

Esports has experienced enormous growth in recent years, even though we have been in a pandemic. This growing surge also means that other segments within the sports ecosystem are taking notice and wanting to get into esports and take advantage of that. And that's where we're seeing institutions of higher learning coming into play. 

Now, institutions of higher education certainly are interested in esports for any number of reasons. Notably, as we see enrollments stagnating, colleges and universities are looking for a way to distinguish themselves from the competition, as well as looking for a way to attract gen Z millennials. Studies and surveys commonly show that many people in this age group are gamers, male and female.

And so, you're seeing a way to attract these individuals as well as colleges not having to spend as much money on football or basketball. Esports really does stand out. And because of that any institution, especially those are on the smaller side, are looking to invest in teams or a club by providing potential scholarships, partial or full, and then creating esport specific facilities. 

The payoff is that this is a way to distinguish themselves from the competitors, creating that front porch effect and be a way to connect with students and other stakeholders, like alumni, and a way to boost their profile. 

The Gender Part of the Equation

Research and studies consistently show that there are underrepresented groups – women and members of the LGBTQ+ plus in the esports community, for example. These groups report experiencing misogyny, toxic masculinity, and discrimination. Some of these problems may be tributed to the cloak of anonymity that people benefit from in an online community, where they don't actually need to be present, and they don't need to reveal their identity. So, even though women have a strong interest in gaming and esports, we see fewer female gamers participating in esports at the higher echelons of college and professional ranks. There's a significant lack of representation at those levels. 

Colleges are investing in esports including the creation of dedicated gaming venues on campus and by awarding scholarships for esport athletes. This growth and investment in collegiate esports create potential legal issues when it comes to participation opportunities, as well as potential discrimination. 

Up to 75 percent of esports programs are being housed under the umbrella of athletics, particularly among NCAA Divisions II and III, the NAIA, and community colleges. We have yet to find any NCAA Division I school that has put esports in their athletics program though. Regardless of the placement, Title IX will apply to any programs at the university, but placement under the umbrella of athletics should trigger Title IX compliance regulations specifically designed for athletics programs.  How Title IX regulations would be applied to esports programs placed in other areas of the university, such as student affairs or campus recreation, is less clear.

From an athletics compliance perspective, esports participants should be included in the participant count. If esport athletes get scholarships, that financial assistance should be included in the scholarship formulas, et cetera. 

My position is that traditional title IX is going to apply with certainty in 75 percent of those programs right now that have situated themselves in athletics. But NCAA Division I is slow to enter the competitive esports space. 

Our research revealed that more than half of the current esports programs have been created within the past two years. This is significant, because universities are required under federal law to report their athletic spending and participation as part of the Equity in Athletics Disclosure Act annual survey. This data is available for public access in a searchable database, but typically the public database represents data reported 18 months to 2 years prior. Therefore, we decided to scrape some of the EADA data and see what may be on the horizon for athletics programs sponsoring esports teams.

The first question is, of course, what activity is going to count for purposes of reporting under EADA? Is esports going to be considered a varsity team? The EADA defines a varsity team as any team identified as a varsity team by the university.

So, we first looked at Nichols College to see where it placed esports. And this is typically what we found for all the schools that we checked, thus far. If you go to the university athletics website, esports is listed as a “sport” within athletics. It is frequently listed as a co-ed sport together with cheerleading, under the umbrella of athletics. This meets the definition of a varsity team under the EADA. 

Another one we looked at was Harrisburg University, one of the most competitive esports programs out there. They're all in. They have three separate esports teams, and they report them as three separate teams in their EADA annual survey. Harrisburg reports 27 male participants on its esports teams. While the esports team is co-ed and tryouts are open to both genders, all the players are male. There's apparently some sort of selection criteria for who gets a spot on the team based upon performance, perhaps who gets the higher score. But the selection criteria are not provided, so we don’t know how many females tried out or how final scores for participants were determined. But not a single female who tried out, was able to earn a spot on this team of 27 esports athletes. 

Administrators need to be really diligent. They need to think about this as they're putting these programs out there, using them as the front porch. They are not even thinking about that effect on Title IX down the road. There's also going to be some mistaken application of these rules that harkens back to Harrisburg saying that, that the women had a chance to try out well, that tryout requirement only applies to separate teams. It doesn't apply to co-ed teams. So, this could be interpreted as a form of roster manipulation.  

And like we said, that separate team’s approach, it is not going to apply. These are listed as co-ed sports. The Title IX regulations stipulating a tryout requirement, only applies to when and how separate teams are permitted under Title IX. These regulations permit a university to sponsor separate teams for men and women. However, if there is not a separate team for women, then women must be permitted to try out for the men’s teams. But esports teams are predominately identified as co-ed, like rifle and sailing. Thus, there is no separate men’s team for which women must be afforded a tryout. Instead, all women on the co-ed esports team must be treated equally with their male counterparts. Those tryout requirements are irrelevant for a co-ed team. Thus, it is Harrisburg’s notation that women were allowed to try out. That may not provide them the cover that they think it will for failing to have a single female on their 27-person esports team. We may need more clarification there. 

Title IX compliance gets a lot stickier though, if the esports team is not situated in athletics, because mostly our student life, our campus recreation our academic placements, or even an independent organization, they're usually very inclusive. In other words, anybody who wants to play and participate is permitted. These sport opportunities are typically participation based. And if that's the case, odds are, if it's open to anybody and just 90 percent of the participants are male and 10 percent are female, that's a gender-neutral phenomena, theoretically.

So that may not be a problem. But we just don't know yet what lens is going to be used. Are we going to look at the esports program in campus recreation and determine if participation opportunities are provided equitably within the esports program? Or are we going to look at the entire campus recreation program as a whole? Within a large campus recreation program, esports may not have enough statistical significance to sway total participation numbers to where it would look like that the campus rec program was out of compliance or represented disproportionate opportunities. Think about if your campus recreation program had 2,000 participants over the course of a year. Well, if only 50 of those are esports participants, odds are, that is only going to be a blip on the radar, right? So, we don't know yet whether they're going to drill all the way down and would, for example, challenge availability of participation opportunities for women on the esports team, specifically, even though there are plenty of “other” participation opportunities for women within the campus recreation program.  

Question from the audience: Do you think based on what those numbers are and how drastically out of compliance they would be that the small school athletic departments might push it over back to a student activity so they can avoid a potential lawsuit?

Answer: With those smaller colleges, athletics and student life are so closely connected that I'm not sure that they're really separate the way they would be on a division I, or even division II or III. The question centers on whether athletics is still paying for it.

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