College Esports: A Model for NCAA Reform
By
By
Thomas A. Baker III[1]⃰ & John T. Holden[2]**
The National Collegiate Athletic Association (NCAA) wants to be in the business of esports.[3] On August 25, 2017, the NCAA issued a request for proposals (RFP) that solicited assistance in evaluating a possible role for esports within the organization for presentation to the NCAA’s board of governors.[4] At first blush, news of the NCAA’s interest in developing a college segment of esports (collegiate esports) may seem like good news for esports enthusiasts, players, and other key stakeholders within esports. After all, the NCAA is the mechanism that regulates the multi-billion-dollar business of big-time intercollegiate athletics in the United States. (The NCAA’s move into the emerging phenomenon of collegiate esports would be a rising tide that lifts all boats—well, almost all boats; collegiate esports players themselves would likely end up on a sinking ship.) In the RFP, the NCAA made clear that any movement into collegiate esports would be done in a way that aligns with its organizational values.[5] The problem for esports players is that the NCAA’s “values” include an amateurism model for intercollegiate athletics[6] that has been described as the “shame of college sports”[7] based on how unfairly athletes are treated under the model.
For example, consider the case of Donald De La Haye, a former varsity football player for the University of Central Florida (UCF). De La Haye is a former football player because he lost his scholarship after being declared ineligible by UCF based on the school’s interpretation of an NCAA amateurism policy[8] that restricts the use of athlete names, images, and likenesses (NILs) for commercial purposes.[9] De La Haye had the dream of being a videographer. In pursuit of that dream, he created a YouTube channel that he called Deestroying—a channel that now has more than 117,000 followers and generates small sums of money for De La Haye.[10] De La Haye responded to UCF’s decision to terminate his scholarship with a broadcast on his channel that he aptly titled, “I Lost My Full D1 Scholarship Because of My YouTube Channel.”[11] In his video response, De La Haye took issue with demands that he demonetize his videos in order to retain his scholarship to play football at UCF.[12] In an interview with Forbes, De La Haye later added that he thinks it’s “idiotic, stupid, [and] preposterous” that the NCAA permits his coach to make $2 million off of his name while De La Haye is unable to make “a couple thousand bucks” off of his YouTube channel.[13]
Yet, if De La Haye had played varsity esports, rather than NCAA-regulated football, he would have been able to keep his channel and his scholarship. In fact, it’s common for esports players to have their own YouTube or Twitch channels,[14] and there are no prohibitions in collegiate esports against the monetization of student-athlete NILs.[15] Furthermore, former professional esports players who have profited off of esports in the past are permitted to leave the professional ranks and pursue an education by accepting scholarships to play varsity esports.[16] Former professional athletes are unable to do the same for NCAA-sanctioned sports.[17] This means that these athletes must choose to either pursue professional careers in sport or fund their education by playing intercollegiate athletics. Those examples represent just two of many instances in which student-athletes on varsity esports teams currently enjoy greater choice and financial freedom in comparison to other student-athletes on NCAA-sanctioned teams. Rather than absorbing college esports into its amateurism model for intercollegiate athletics, we suggest that the NCAA should instead adapt to be more like collegiate esports. For this to happen, the NCAA would need to abandon—or at least relax—its adherence to the “revered tradition”[18] of amateurism, a concept that conceals the NCAA’s anticompetitive cost control mechanisms under a cloud of sport ideology.[19]
It is doubtful that the NCAA, a profit-maximizing collection of non-profit institutions, would want to voluntarily discard a concept that justifies the suppression of labor costs and restricts the liberty of athletes to the benefit of its members. To the contrary, the NCAA has invested substantially in defending amateurism against legal challenges brought by the same athletes the NCAA purports to protect from commercial exploitation.[20] Thus far, courts have acquiesced to the NCAA’s self-defined version of amateurism based on the dubious position that doing so is necessary to the preservation of consumer interest in the NCAA’s products.[21] Nevertheless, college athletes continue to challenge the NCAA’s amateurism model in court, and in fact, there are multiple actions pending against the NCAA that threaten the legality of amateurism.[22]
Some esports stakeholders within college esports have taken notice of the legal problems associated with the NCAA’s amateurism model and have worked to keep the more controversial constraints—imposed on athletes by that model—out of college esports. For instance, the National Association of College Esports (NACE),[23] the current governing body for college esports, has intentionally left amateurism out of its league rules and regulations: “The majority of varsity programs have been built intentionally to stay separate” of the NCAA’s bylaws, said NACE Director Michael Brooks.[24] Brooks added that barring some “pretty dramatic exceptions” for college esports, the NCAA would not succeed in absorbing esports “under its banner.”[25]
Whether or not the NCAA attempts and succeeds in absorbing collegiate esports “under its banner” does not change the fact that the future shape and structure of college esports remains uncertain. College esports is in its infancy[26] in terms of development, with more than half of the current varsity programs having formed within the past two years.[27] From a list of more than fifty esports programs that currently provide scholarships to varsity esports players, twenty-seven are housed within NCAA member institutions.[28] Those schools will have a say in the development of college esports regulation.[29] Thus, the possibility exists that the NCAA could influence the future direction of college esports regulation without ever formally taking over the reins of regulatory control.
Uncertainty over the future of college esports fuels the need for research that can help interested parties develop appropriate college esports governance models tailored to meet any unique demands inherent to college esports. Unfortunately, a review of the relevant literature on college esports reveals a dearth of legal research on collegiate esports.[30] Furthermore, no extant study has examined the current state of collegiate esports regulation, much less the role that amateurism should play in shaping this emerging electronic sport enterprise. The research presented in this Article contributes significantly to the body of knowledge on esports by being the first to address current and future regulation within collegiate esports. The findings in this Article also add to the existing literature on esports by providing new insights into the regulation of intercollegiate athletics and the need for reform within the NCAA. Specifically, the findings of this Article reveal how the success of collegiate esports could provide a model for reform for the NCAA.
Esports is an umbrella term that applies to various types of competitive video game tournaments involving popular strategy and battle video games.[31] Professional esports takes the form of a multitude of competitive video game tournaments providing financial awards to winners and other qualifiers.[32] The term “collegiate esports” applies to competitive video game tournaments that almost always require that players must be full-time college students.[33] Instead of handing out cash prizes to players, collegiate esports tournaments typically provide players with scholarships or prize awards for covering a players’ education costs.[34]
Central to both collegiate and professional esports is the fact that the “sports” used in competitive esports tournaments are commercial game titles, meaning that game producers actually own the “sports” and can restrict them to the limits provided by intellectual property law.[35] In fact, professional esports players, collegiate esports players, and video game lovers alike must all agree to the terms and conditions for use imposed on them by the video game producer.[36] For gamers, the terms and conditions set by game producers have little to no influence on their consumption of the game title.[37] Ownership of the “sports” that make up esports becomes important, however, when the game titles are used by third parties in the operation of esports tournaments or in live streaming of gameplay—and even with non-tournament gameplay on webcasts.[38] For instance, at EVO 2013, the world’s largest fighting-based game tournament, video-game producing giant Nintendo tried to have its product, Super Smash Bros. Melee, pulled from the event and broadcasts of the event.[39] Nintendo eventually backed down after a public outcry from its consumers and allowed its popular game title to be used for competition play.[40]
Nintendo’s initial resistance to involvement in esports is atypical within the industry; in fact, game producers manage most of the popular professional esports competitions.[41] Some even have a history of absorbing third-party competitions that successfully make use of their game titles.[42] For example, Blizzard Entertainment (Blizzard) partnered with the Texas eSports Association (TESPA), a collegiate esports league, and works with the TESPA founders who operate tournaments for Blizzard.[43]
As for live streaming of gameplay on webcasts, game producers have been less interested in interfering with third-party broadcasts. Gamers and tournament operators regularly broadcast live play of copyright-protected video games on websites such as Twitch or YouTube, and game producers seemingly look the other way rather than engage in rigorous legal enforcement of their property rights. For a few popular games (e.g., World of Warcraft, Counter-Strike: Global-Offensive, and Minecraft), users have been granted permission for live stream play in the terms of use agreements.[44] One of the most popular web stream providers is Twitch, which operates a “partnership” program whereby its partners (live-streaming players) earn a share of the ad revenue that their streams generate for Twitch.[45] Players who stream on Twitch can make between $2.00 and $5.00 per 1,000 impressions.[46] While Twitch is a free service, viewers can pay a monthly fee, half of which is paid to the streamer.[47] Most streamers earn very little through Twitch, but very popular streamers are able to play full-time and support themselves off of the shared revenue.[48] The average professional streamer makes between $2,000 and $5,000 per month, but high-profile streamers, such as Lirik,[49] attract more than 900,000 followers, 6,000 subscribers, and earn more than $200,000 off of the subscribers alone.[50] Once impressions are accounted for, the dollar amounts paid to professional streamers can skyrocket. For instance, a professional streamer named Pewdiepie makes roughly $12 million a year.[51]
Another interesting aspect of the relationship between esports and Twitch is the fact that viewers can watch Twitch broadcasts of esports tournaments (including the most popular professional esports tournaments) without a subscription.[52] The tournaments do not charge Twitch for media rights to the tournaments and viewers are not charged by Twitch to view them.[53] Twitch is currently considered the “ESPN of esports,”[54] but as the popularity of esports increases, the probability also increases that other media outlets will eventually emerge and start charging viewers for access to esports content. It is also very likely that esports tournaments will eventually mirror their traditional sport counterparts (e.g., the National Football League (NFL) and Major League Baseball (MLB)) by charging media partners for broadcast rights. Riot Games, the producer of League of Legends (LoL), recently signed a seven-year $350 million media rights deal with BAMTech—a streaming company that is part of MLB Advanced Media.[55] What all this means is that the esports industry has yet to actualize the full financial potential from live-streaming tournaments.
Professional esports currently provide the only basis for forecasting collegiate esports’ economic potential. Professional esports is projected to be a billion-dollar industry by 2019 and a 1.5-billion-dollar industry by 2020.[56] The most popular esports competition is the LoL World Championship. In 2016, the LoL finals attracted forty-three million total viewers with a peak concurrent viewership of 14.7 million for the final match.[57] For perspective, consider that the 2017 National Basketball Association (NBA) Finals attracted 20.4 million total viewers and was the most-viewed NBA finals since 1998.[58] Adding to esports’ commercial appeal is the fact that esports enthusiasts have purchasing power. A recent study revealed that forty-three percent of those who watch esports competitions have an annual household income of $75,000 per year or more, with thirty-one percent reporting earnings of $90,000 or more.[59]
Collegiate esports, however, has yet to generate similar levels of consumer interest as their professional counterparts. Professional esports tournaments currently have the largest prize pools and involve all of the popular esports teams that attract loyal followers, generating impressive viewer numbers.[60] Still, many industry leaders believe that collegiate esports has the potential to be a significant revenue generator for schools.[61] In response to this perceived potential, more than fifty schools now field varsity esports teams.[62]
A survey of collegiate esports tournaments revealed that collegiate esports teams can be classified into one of the following three categories: (a) teams representing varsity programs, (b) club teams, or (c) privately formed recreational teams.[63] Varsity programs recruit players to the school, and it is this distinction that courts typically use to distinguish varsity teams from private recreational pursuits.[64] For all practical purposes, varsity esports programs can further be distinguished from recreational teams in how varsity programs provide players with scholarships, hire coaches and assign administrators for them, and officially sponsor the teams for competition in esports tournaments.[65] Contrast this with esports teams consisting of recreational club teams and other private esports teams that represent schools in esports tournaments but do so likely without any formal sponsorship from the schools. Club teams are recognized by schools, but they are student-run recreational clubs that generally receive little in the way of financial support from the college or university that they represent.[66] In addition to club teams, there are also privately formed teams of students that claim association with their schools but are not officially recognized by the school and receive no funding from the school.[67] Despite the rapid growth of varsity esports programs, clubs and other recreational teams still make up the majority of teams competing in collegiate esports tournaments that do not limit competition to varsity teams.[68]
An added benefit for schools that field varsity esports programs or official club teams may be found in the fact that doing so provides the institution with a means for managing their brand in collegiate esports tournaments. By sponsoring official teams, schools put their stamp on participants by branding them within esports competitions. That act limits unauthorized use of school brand names/images by unsponsored students on unofficial teams. In the absence of officially recognized club or varsity teams, students are left to form their own teams to participate in collegiate esports tournaments. It is not uncommon for multiple teams to compete under the same school’s brand without the school’s authorization.[69] Accordingly, a degree of vulnerability exists for universities and colleges that are represented by unofficial collegiate esports teams because the brand image for those schools could be impaired by teams that engage in prohibited conduct (e.g., cheating or offensive behavior) while competing in collegiate esports tournaments. The provision of official club teams allows for some—even if minimal—degree of control for schools that are in a position to sanction players or teams that do not represent the school in a positive light. Colleges and universities with varsity programs enjoy much more authority over esports teams because they have paid coaches and directors who not only select team players but also establish and enforce program standards.[70]
In terms of control, the positioning of varsity esports programs within colleges and universities plays an important role in the management of varsity teams. For instance, athletic departments currently play home to only 20% of varsity esports programs.[71] The remainder of collegiate varsity esports programs are located in departments for student affairs or within academic programs, centers, or institutes.[72] The competitive markets for academic and athletic departments are very different. The same can be true for how these two types of departments are regulated, managed, and resourced.[73] Differences between academic and athletic departments can also be found in their respective and prevailing social norms and conventions—two factors that influence management and governance.[74]
In addition to diverse program placements, varsity esports programs can be divided in terms of how their other sports are governed. Twenty-seven of the more than fifty varsity esports programs are housed within schools that are NCAA member institutions for all other sports, while twenty-five programs are at National Association of Intercollegiate Athletics (NAIA) member institutions.[75] Both the NCAA and NAIA are governing bodies for intercollegiate athletics.[76] The NCAA is the larger and more prestigious of the two,[77] and all of the prominent research institutions in the United States that field intercollegiate sports are also members of the NCAA.[78] Conversely, the NAIA has differentiated itself from the NCAA by targeting smaller colleges for membership, such as teaching colleges, liberal arts colleges, and historically black colleges and universities (HBCUs).[79]
To date, no dominant regulatory agency exists within collegiate esports that sets the rules for all competitions and regulates athletic programs and student-athletes in the same manner that the NCAA and NAIA regulate intercollegiate athletics for their combined 1,281 member institutions.[80] Instead, the regulation of collegiate esports has mostly been left to tournament and league producers of collegiate esports competitions (e.g., Collegiate Starleague (CSL)[81] and TESPA).[82] There is, however, an emerging and member-driven regulatory agency in NAC esports (NACE) that is working on “developing the structure and tools needed to advance collegiate esports in the varsity space.”[83]
Like the NCAA, NACE has developed both a constitution and a set of bylaws that are represented in its Official Policy Handbook. They govern its member institutions and their student-athletes.[84] Our comparison of NACE’s Official Policy Handbook with the NCAA’s Division I Manual revealed some similarities on the subject of eligibility; however, we found stark contrasts between how the two organizations govern student-athletes. Perhaps the best summation of the differences between the NCAA and NACE is found in the fact that NACE’s Official Policy Handbook consists of only seventeen pages[85] whereas the NCAA’s Division I Manual, which only governs one division within the NCAA, includes 428 pages of regulations.[86] Our review of NACE regulations revealed that its bylaws are more consistent with how collegiate esports tournament and league producers regulate competitors within their competitions than with the ways in which the NCAA regulates student-athletes. NACE’s approach makes sense to apply to collegiate esports because their regulations need to remain substantially similar to the regulations for CSL, TESPA, or any other college tournament or league operated by a game maker.
The following sections present the results from an examination of student-athlete regulations enacted by NACE, CSL, TESPA, AVGL College, and the League of Legends College Championship (ULoL).[87] The results are presented by topic areas that were selected because they provide a consensus of the most regulated conduct within collegiate esports. The results from that review were then compared to student-athlete regulations within Division I of the NCAA—the division with the commercial success coveted by those promoting collegiate esports.
Within collegiate esports, the basic eligibility requirement for any competitor is that he is a student at the school that the team represents. For league competition, TESPA players can establish proof of eligibility through the provision of a school email account.[88] School email accounts are not valid representations of student status because faculty, staff, and even former students at many institutions have college or university email accounts. TESPA does require “certified proof” of enrollment for finalists but does not expressly state what qualifies as “certified proof.”[89] For ULoL, players may be full- or part-time students, but they must be in good academic and disciplinary standing at their school and at least seventeen years old by January 15, 2018, in order to qualify for tournament play.[90] In addition, the player must not be currently serving an official esports suspension from a Riot-affiliated competition and be able to pass continual behavior checks.[91]
For the CSL, student-athletes must be enrolled full-time at their institutions, based on their school’s standards for full-time status, and must also be in good standing.[92] Staff for CSL reserve the right to request participants to provide official transcripts. Failure to provide those transcripts could result in punishment.[93] NACE has the most restrictive eligibility rules in collegiate esports because it goes beyond requiring the student to be in good standing—it also includes admission qualifications for entering freshman competitors. Specifically, NACE requires a minimum ACT score of 18 or SAT score of 860 and a minimum high school grade point average of 2.000 or higher on a 4.000 scale.[94] While the 2.000 grade point average (GPA) is not necessarily daunting, there is an added requirement that students graduate from high school in the upper half of their class. This rank must be evidenced on the student’s high school transcript or stated on an official letter written by the school’s headmaster or principal.[95] Lastly, unlike the NCAA, most collegiate esports tournaments and leagues permit graduate student participation and do not restrict academic eligibility to a set number of years. NACE, however, limits student-athlete eligibility to five seasons in esports (ten semesters).[96]
In comparison to what is required from student-athletes wanting to play collegiate esports, the NCAA’s academic eligibility requirements are far more detailed but not necessarily more difficult to meet. Like NACE in collegiate esports, the NCAA also requires enrolling student-athletes to have a minimum grade point average (GPA) and a qualifying score on either the ACT or SAT.[97] The difference is that the NCAA has a sliding-scale standard that allows students with lower GPAs to qualify with higher ACT or SAT scores, or vice versa.[98] In this regard, the NCAA’s standards better accommodate students who are not good at standardized tests or come from socioeconomic or cultural backgrounds that put them at a disadvantage when taking standardized tests such as the ACT and SAT.[99] The NCAA’s sliding scale was enacted following a legal challenge by student-athletes claiming that the minimum SAT/ACT requirement resulted in disparate impact discrimination in violation of Title VI of the Civil Rights Act of 1964.[100] The NCAA won the legal challenge because it is a voluntary association that does not have the requisite controlling authority over its members necessary to subject it to Title VI’s reach.[101] Regardless, the NCAA subsequently modified its rules to be more accommodating and less discriminatory in the wake of the case’s resolution.[102] The NCAA allows for a second sliding scale for non-qualifiers to qualify as academic redshirts—students who may participate in practices and other training sessions but must sit out the first year of intercollegiate competition.[103]
As NACE grows, it should consider adopting a sliding scale similar to the NCAA’s so that its eligibility requirements do not discriminate unnecessarily against those who could be unfairly impacted by NACE’s hardline standardized test policy. Allowing student-athletes with higher GPAs to qualify with lower test scores satisfies the goal of setting minimum academic qualifications while limiting unfairness to those who, for whatever reason, are at a disadvantage when taking standardized tests.[104]
In addition to the NCAA’s sliding scale, NACE and any collegiate esports league should consider adopting more exacting course requirements so that enrolling student-athletes are properly prepared for the rigors of higher education. The NCAA requires enrolling student-athletes to have completed ten of sixteen required core courses, with seven of those ten courses to be completed in English, math, and science.[105] Those requirements, however, do not apply to international students, who must instead satisfy international credentials.[106] The problem that NACE and other league operators that regulate academic requirements within collegiate esports would face is that discerning eligibility requires certification for each student-athlete. This process can be quite complicated. Implementing an initial eligibility clearinghouse like that of the NCAA, which certifies student-athlete eligibility, would be complicated and costly. Still, the implementation of stricter course requirements and a certifying agency within collegiate esports would better ensure that student-athletes are actual students and qualified for admission into the schools they represent.[107]
In terms of making sure that student-athletes remain academically qualified, the NCAA requires significantly more from its students than what is required for competition in collegiate esports. Specifically, the NCAA has sets of rules for determining whether student-athletes are making adequate progress towards degree requirements.[108] These rules include standards for hours accepted for degree credit,[109] hours earned toward a minor,[110] and a requirement that students fulfill a percentage of degree requirements by their third year.[111] As collegiate esports grows, regulatory bodies like NACE and league operators like TESPA and CSL should consider doing more than just requiring that student-athletes remain in “good standing.” The good standing requirement can be easily subverted by schools that care more about gaining a competitive advantage than fielding a team with students who are all legitimately concerned with making progress towards a degree.
Schools continually try to subvert the NCAA’s standards so that they can keep talented athletes qualified for competition, even though they struggle to qualify as students at the institutions they represent. For instance, the University of North Carolina (UNC) recently evaded NCAA sanction despite serious allegations of academic fraud related to its funneling of students into classes that lacked academic rigor.[112] The NCAA found that it lacked the power to punish UNC because the classes were made available to athletes and non-athletes alike.[113] If collegiate esports lives up to its incredible potential, then there will be an incentive for schools to circumvent academic standards in order to keep players eligible. NACE, and any other regulatory body within collegiate esports, should consider the UNC example when developing policy for punishing programs for academic fraud.[114]
Another academic component from the NCAA that collegiate esports may consider adopting as it grows and matures is a methodology for tracking graduation rates for collegiate esports programs.[115] Requiring schools to track graduation rates and report findings places the NCAA in position to monitor and assess the academic progress of student-athletes at member-institutions based on the attainment of degrees. Unfortunately, the current graduation rate standard is a bit clouded for sports such as men’s basketball and football because many talented underclassmen leave school early to pursue professional careers and may never complete their degrees.[116]
It is doubtful that graduation rates for collegiate esports would be as affected by players leaving early for professional careers because esports players are much younger than their professional counterparts in traditional sports.[117] Furthermore, training for professional esports requires incredible amounts of play per day. Full-time students likely do not have the time between classes and sleep to dedicate enough hours to esports play that would allow them to transition to the professional level.[118] If players are good enough to play professionally, they will likely choose that route instead of collegiate esports. Conversely, the NBA requires its athletes to be one year removed from high school to be eligible, while the NFL requires its athletes to be three years removed from high school to be eligible.[119] Accordingly, athletes for those sports use the NCAA as a developmental league for professional sport development. Since players with the ability to compete professionally in esports may do so without having to wait a set amount of years after graduating from high school, there is little to no chance that collegiate esports would be used primarily as a professional training ground for professional esports. Instead, it is more probable that degree attainment would be the primary objective for most collegiate esports players who rely on varsity scholarships to pay for their education.[120]
The results of our study revealed that collegiate esports takes a very simplified and pragmatic approach to regulating student-athlete transfers from one school to another within collegiate esports.[121] With the exception of NACE, the tournaments and leagues examined in this study only require that players stick to one team during a season.[122] This simple rule prohibits players from switching schools in the middle of a season or tournament. For these organizations, students have the same degree of mobility as any other student at the institution not regulated by the NCAA, even those who are on academic scholarship.[123] Yet, the simple rule of limiting players to one team per season ensures a degree of team stability for league play.
NACE takes a similar, but slightly more exacting, approach. Players are free to transfer, but must complete a “permission to contact” form that is signed by the esports coach/director and submitted to the NACE ESPORTS national office prior to contacting another NACE member institution.[124] Following this submission, the student-athlete must then obtain the “Official NAC ESPORTS Transfer Player Eligibility Statement” from NACE and present that statement to both the exiting and incoming institution.[125] NACE also places more emphasis than its peers in collegiate esports in regulating “terms of attendance.”[126]
Emphasizing terms of attendance within its transfer policies makes sense given that NACE places limits on the number of competitive seasons in which student-athletes are permitted to participate. NACE allows students to withdraw within twenty-one calendar days following the official opening date of classes before a term of attendance is credited to the transferring student.[127] NACE also places restrictions on transferring students who were suspended by their initial institution[128] prior to their transfer, requiring them to sit out two full semesters[129] before being eligible for competition.[130] Students who are suspended for misconduct committed during esports competition must serve whatever punishment is imposed on them before they are eligible to compete at their new institution.[131] There is one odd rule within NACE’s transfer regulations: a student charged with a season of competition in one esports by a different institution in the same academic year shall be charged with two seasons of competition when that student transfers to another institution within that academic year.[132] Thus, a student could be charged for two years of competitive eligibility within one academic year.[133] The reasons for this rule remain unclear. Unlike most other collegiate esports regulators, NACE’s transfer policies also include academic restrictions to ensure that transferring students are actual students in residence at their new institutions.[134]
Thus far, there have been several suggestions for improving collegiate esports in this article that were based on the way the NCAA regulates its member institutions and student-athletes. When it comes to regulating transfers, however, the NCAA might want to change its policies to mirror what is done within collegiate esports. In fact, the NCAA is currently exploring ways to modify its transfer rules, the legality of which is at issue in pending actions brought against the NCAA.[135] Before addressing possible changes, some discussion on the current regulations within the NCAA’s Division I is needed.
The NCAA permits a one-time transfer, without penalty, for all sports except men’s football, basketball, and hockey.[136] For those three sports, however, the student-athlete must sit out one season of competition before he is eligible to represent the new school in intercollegiate competition.[137] The NCAA defends an exception for those three sports on the grounds that athletes within them have historically underachieved in the classroom.[138] Yet, that justification is mooted by a transfer certification process that requires student-athletes who wish to transfer from one Division I program to first certify their academic eligibility prior to contacting other institutions.[139] The NCAA’s certification process is similar to NACE’s “permission to contact process,” but the NCAA’s certification process adds a level of academic rigor. If student-athletes for men’s basketball, football, and hockey must be academically eligible to transfer, then why must they sit out of competition for one season? The NCAA asserts that the rule helps transferring student-athletes acclimate to their new academic environments,[140] but skeptics and critics have good reason for believing that this assertion is pretext for protecting teams (and coaches) rather than students.
The NCAA, however, has even less reasonable rationale for a different rule that requires student-athletes to receive permission from their original school before they are allowed to transfer.[141] This rule is controversial because if the original school does not provide the student-athlete with permission to transfer, then the student-athlete must go one full year without an athletic scholarship at their new school.[142] Such a policy is financially crippling for student-athletes who desire to transfer from one school in a division to another in that same division, particularly for students from lower socioeconomic backgrounds. In practice, original schools tend to restrict player movement to specific competitor institutions.[143] Furthermore, student-athletes who transfer to schools without permission from their original institution also forfeit a year of athletic eligibility.[144] The forfeiture of eligibility and lack of access to scholarship money serve no academic purpose; they are harsh penalties that were obviously designed by the NCAA to discourage transfers. Fortunately, the NCAA announced that it would end the permission requirement starting October 15, 2018,[145] but more reform is needed.
The NCAA should, instead, do what it purports to do—putting the well-being of student-athletes first and allowing them reasonable freedom to select their schools. Currently, the NCAA’s policies more closely resemble rules restricting player movement within professional sport leagues than academic policies designed to protect student academic development. The NCAA is considering several proposals for modifying its transfer policies,[146] and the NCAA should turn to collegiate esports for guidance. Every NCAA member institution has its own transfer policies for incoming students[147] that are set by the institutions, and collegiate esports programs currently defer to those school policies rather than setting up independent and separate rules that apparently protect teams at the expense of students. The NCAA can protect teams and the integrity of competitions by borrowing the rule that limits students to one team per season as per the collegiate esports regulations. That rule, combined with the NCAA’s certification policy and the new school’s requirements that limit the transfer of credit hours, should be enough to preserve the academic integrity of NCAA competitions for all sports, including men’s basketball, football, and hockey.
For this section, it’s necessary to examine the NCAA’s amateurism model before addressing the role that amateurism plays within collegiate esports. The reason for starting with the NCAA is that it has created an amateurism model for intercollegiate athletics. The NCAA is currently evaluating whether it could implement that model within collegiate esports.[148] The NCAA combines its athletics eligibility rules with its amateurism rules, which makes sense given that many of the NCAA’s athlete eligibility requirements require amateur status in order for student-athletes to be eligible for NCAA competitions.[149] In fact, the NCAA’s first eligibility requirement for its student-athletes mandates that only amateurs are eligible to participate in NCAA-sanctioned sports.[150] Further, a student-athlete’s amateur status may be lost as a result of activities that transpired prior to their enrollment in college (i.e. their receipt of impermissible compensation).[151] Regarding compensation, the NCAA limits what student-athletes may earn through their sport participation to room and board, tuition, fees, necessary course books,[152] and small stipends that cover other costs that are anticipated as part of attending the athlete’s school of choice.[153] In addition, the NCAA prohibits student-athletes from profiting off of the use of their names, images, and likenesses for commercial purposes[154]
There are, however, some exceptions to the NCAA’s amateurism eligibility rule. The first is found in Article 12.02.7, which permits student-athletes who have received money for expenses incurred as part of their participation in outside competitions, as long as those expenses are from a permissible source (meaning the event sponsor or a club team) and the compensation does not exceed necessary expenses by $300.[155]Another exception allows student-athletes that have competed on a tennis, golf, two-person beach volleyball or two-person synchronized diving team with persons who were competing for cash or prizes so long as the student-athlete did not receive payment or prize money that exceeds his or her actual and necessary expenses, which may only be provided by the sponsor of the event.[156] Lastly, student-athletes who competed for Olympic or national teams are permitted to do so and receive money for actual and necessary expenses.[157] As a result, the NCAA’s amateurism rules force athletes, most of whom are young adults, to make the difficult decision of selecting to retain amateur eligibility status so that they can pursue their education or earn money through sport.[158] For example, if a collegiate gymnast competed as a professional or was compensated for having her image on a box of cereal, she would not be eligible to compete as a collegiate gymnast.[159] The NCAA’s amateurism rules have imposed an unreasonable restraint on the market for student-athlete services for decades. The rules have also been at the center of numerous legal actions brought by student-athletes, most of which involved complaints grounded in antitrust law.[160] In fact, one such action is pending now within the Ninth Circuit in In re National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation.[161] So this begs the question: Why is the NCAA anchored to its amateurism model?
The concept of amateurism was first introduced into intercollegiate athletics as a control measure to reduce the number of fatalities in college football.[162] Amateurism no longer serves the purpose of ensuring student-athlete safety but persists within all NCAA-sanctioned athletics for another purported purpose: to preserve consumer interest in intercollegiate athletics.[163] The Third,[164] Fifth,[165] Sixth,[166] Seventh,[167] and Ninth Circuits[168] have each relied upon the purported procompetitive purpose for amateurism to justify constraints on trade imposed by the amateurism model, which ultimately limits student-athlete compensation and prohibits them from profiting off of their public status.[169] The procompetitive justification for the NCAA’s amateurism model stems from Justice Stevens’ seminal dicta in NCAA v. Board of Regents of the University of Oklahoma.[170] In Board of Regents, Justice Stevens relied on the academic tradition inherent to the NCAA’s products as a basis for the creation of sports products that were distinct from their professional counterparts.[171] Since the academic tradition facilitated product creation, it provided the NCAA and its member institutions with a joint venture defense to the application of the per se rule. Justice Stevens believed that amateurism was integral to the academic tradition; thus, it was also essential to product creation and the preservation of consumer interest in intercollegiate athletics.[172]
Yet there is no market-based evidence that supports the presumption that preservation of amateurism is necessary in order to maintain consumer interest in intercollegiate athletics.[173] In fact, at least one study has disproved this presumption by measuring consumer interest in college football following changes to NCAA rules that allowed schools to provide cash payments to student-athletes that do not exceed the cost of attendance.[174] Nevertheless, neither the interest in protecting college football players nor the purported preservation of amateurism provide a basis for implementing the NCAA’s amateurism model into collegiate esports.
Currently, the NCAA’s amateurism model is neither incorporated nor enforced by any of the collegiate esports tournaments we examined for this study or by the following leagues: TESPA, CSL, AVGL College, or ULoL.[175] Students who compete in any of the major esports tournaments and within those five leagues may have been professionals in the past and are permitted to profit off of their names, images, and likenesses (NILs). AVGL College does have a rule that restricts participation in its tournaments for players who have been professional recently,[176] but this rule is not a blanket prohibition for anyone who has ever profited off of gaming. Furthermore, the rule serves a competitive purpose of preventing college players from having to compete against current or recent professionals who dedicate far more than forty hours per week to esports training and competition.[177] After the passage of a reasonable amount of time, the rule permits former professionals to compete in AVGL College tournaments.[178]
Unlike the major college esports tournaments and leagues, NACE values the amateur status of esports participants, and therefore, has tighter compensation restrictions for its students, limiting them to tuition, fees, supplies needed for classes, and room and board.[179] However, there is an exception that allows schools to provide for medical and dental expenses.[180] Additionally, NACE’s eligibility rules place restrictions on student eligibility by requiring that they be eligible according to the institution’s standards for intercollegiate competition[181] and subjecting them to eligibility standards set by affiliated conferences that are stricter than what NACE requires for eligibility.[182] NACE’s compensation restrictions are almost identical to the NCAA’s grant-in-aid restrictions before compensation was extended to include amounts up to the cost of attendance. Currently, collegiate esports is not a multi-billion-dollar industry, but if economic growth projections for collegiate esports prove true, then NACE and its member institutions could eventually find themselves in legal battles similar to those which the NCAA must defend.[183]
For collegiate esports, however, there is no procompetitive justification for an amateurism model that is similar or identical to that which the NCAA inflicts on its student-athletes. The basis for the procompetitive justification depends on Justice Stevens’ presumption that protection of consumer interest in intercollegiate sports turns on the preservation of the NCAA’s amateurism model.[184] Without amateurism, the justification posits that the NCAA’s products would transform into minor league sports that consumers do not value.
The validity of this justification is dubious in application to the NCAA’s products but has no basis for extension to collegiate esports because consumers have never valued the amateurism model as part of their motives for consumption. Collegiate esports widens consumer choice already by providing a college version of esports. This happens even without strict amateurism provisions. In fact, a strong argument could be made that the existence of consumer interest in collegiate esports undermines the procompetitive justification for the NCAA’s amateurism rules. If consumers find value in a collegiate product extension of a professional sport/entertainment product that does not incorporate strict compensation limits and restrict athletes from profiting off of their publicity, then perhaps those limits and restrictions are not what attract consumers to the NCAA’s products. In other words, the growing success of collegiate esports provides even more evidence that the NCAA’s version of “amateurism” is not integral to the creation of intercollegiate sport products and should instead be found to be in violation of antitrust law. Legal decisions that have insulated the NCAA’s amateurism model from antitrust law have facilitated the manipulation of the market for student-athlete services.[185]
Additionally, the culture surrounding collegiate esports would make it difficult, if not impossible, to implement the NCAA’s amateurism model.[186] Specifically, the cash prizes for esports would render ineligible for collegiate play those who have already participated in weekend esports tournaments.[187] Furthermore, esports consumers value being able to stream gameplay from their favorite players regardless of whether those players are professionals. Esports consumers likely would not acquiesce to the enactment of policies that would prevent them from gaining access to their favorite players merely because the NCAA would prefer that student-athletes not profit from streaming their gameplay on services like Twitch.[188]
The potential for exploitation of student-athletes by the imposition of amateurism rules could be greater within collegiate esports than other commercially-successful intercollegiate sports (men’s basketball and football) because the sports students play are also commercial products that are owned by game producers.[189] If collegiate esports grows into a commercially successful industry, then both the schools and the game producers will profit from that success. However, this success will come at the expense of the student-athletes who are limited to less than what their peers in men’s basketball and football receive through cost-of-attendance stipends.
Additionally, allowances for students—such as the opportunity to profit off of their publicity and the opportunity to participate despite past professional status—are undermined by NACE rules that incorporate by reference any stricter policies set by individual schools or conference policies that go beyond what NACE requires. If schools or conferences want to enact stricter rules, then that is their prerogative. NACE, however, should have no role in enforcing amateurism restrictions imposed by its member institutions or athletic conferences to which their members belong. In fact, by referring to rules enacted by its members and third-party athletic conferences, NACE voluntarily exposes itself to potential challenges concerning the legality of rules that NACE had no part in creating. NACE needs to revisit all of its amateurism rules and strongly consider removing them. In its place, NACE should develop policies more in line with leading collegiate esports leagues and tournaments and allow schools to dictate what they are willing to invest in students and let the market determine student value.
The NCAA could bring many valuable contributions to collegiate esports, whether it took a dominant regulatory role in collegiate esports or through the borrowing of NCAA regulations by NACE. For instance, the NCAA’s academic standards are currently far more rigorous than any found within collegiate esports. Yet, collegiate esports should not embrace the NCAA’s amateurism model or its current rules that restrict student-athlete transfers. Instead, the NCAA should look to collegiate esports in revising its transfer rules and as providing proof that amateurism isn’t an essential element for growing a commercially successful intercollegiate sport product. In the coming months the NCAA must decide whether or not it will attempt to adopt a regulatory role within collegiate esports.
At the same time, collegiate esports must decide whether it wants to involve the NCAA or implement NCAA-like regulation. At this point, collegiate esports is better off going it alone. The findings from this study suggest that the tournaments and leagues that make up collegiate esports would not benefit from the NCAA’s rules, particularly its amateurism model. Thus, instead of being viewed as a savior, the NCAA should be thought of as a noob[190] to esports that will bog down play with its amateurism rules if allowed to join the party.[191]
The Peach Belt Conference Championship is controlled by the same conference organization as the Peach Bowl—a college football bowl game in Atlanta, Georgia that is played at Mercedes Benz Stadium. See Sean Morrison, Peach Belt Conference Partners with Riot Games, ESPN (Jan. 4, 2018), http://www.espn.com/esports/story/_/id/21959144/peach-belt-conference-partners-riot-games. The Big Ten Network is a league composed of club teams that represent Big Ten institutions. Gabriel Rosenberg, Go to College, Play Video Games. E-Sports Make a Play for the Big Ten, NPR (Feb. 23, 2017, 12:54 PM), https://www.npr.org/sections/alltechconsidered/2017/02/23/515853132/go-to-college-play-video-games-e-sports-make-a-play-for-the-big-ten. ↑