Notre Dame Shuns EA's College Football Comeback Until Players Get Paid

It took about three weeks for Electronic Art's much-hyped return to "college football" to run straight into the minefield of legal and ethical issues surrounding the game. On Monday, the University of Notre Dame announced it would not participate in the game until rules are in place to allow Notre Dame players to be compensated for the rights to their names, images, and likenesses (NILs). That would be a major loss for any college football game: whatever you think about Notre Dame and its pretensions within college football, the Fighting Irish are undeniably one of the sport's icons. You could make a game without them, but sports games live and die by their perceived authenticity. Notre Dame's absence would leave a huge gap.

To be clear, none of this is really about EA. This is more about various stakeholders around college sports forcing the big issues that its governing body, the NCAA, has avoided addressing in order to maintain a lucrative status quo behind a legal fiction of "amateurism." The idea being that what makes college sports special is that the players are not paid for their work, unlike their professional counterparts, despite the fact that the jobs are functionally identical. College athletes, just like the pros, are athletes first and foremost, and most of their time is spent training and preparing for competition. They also run the same physical risks of life and career-altering injury.

When EA announced a return to college football and not NCAA, that was itself an acknowledgment of the elephant in the room. Now, by pointedly refusing to participate in EA's game over the NIL issues, Notre Dame is further highlighting the degree to which NCAA policy has become unacceptable even to some of the institutions that have historically benefited from it.

The NCAA has maintained that amateurism is fundamental to college athletics. Never mind the torrents of money washing around college sports, where even bad coaches make tens of millions of dollars each year, and where those amateur athletes are trained by highly-paid professionals working in ludicrously ostentatious facilities. The debased ideal at the heart of the NCAA is that the athletes are students first, and amateur athletes second. Whatever the theoretical merits of that position, its effect is that college sports do not have significant labor costs and the money can instead go to staff, to management, and to the colleges.

Obviously, the student athletes still have enormous value, and so the NCAA spent years tolerating various cultures of corruption around college sports. The situation is so bad, and the power dynamics so lopsided, that aspiring pro athletes in sports like basketball increasingly minimize their exposure to NCAA programs. The NBA's "one and done" rule is already marked for death, meaning that future NBA stars will no longer even need to put in an appearance in college basketball.

The entire model is besieged in court as a violation of federal antitrust law, and stands a very chance of collapsing depending on how the Supreme Court rules on NCAA v. Alston this year. However, the NCAA has a very good chance of winning its case before a right-wing Court where three members were appointed by a white supremacist administration. There is always a huge racial aspect to the discussions around power and compensation in college sports, which could tip things in the NCAA’s balance. Ideologically committed to supporting the interests of business over labor, and maintaining racial disparities, the Supreme Court is a home game for the NCAA.

Even if the NCAA survives this legal challenge, Notre Dame's declaration highlights another problem: the status quo is less and less palatable regardless of its legality and a lot of schools are ready to move on. The NCAA has delayed changing its own rules in light of the legal challenge it is facing in court and the potential for new legislation around college sports in Congress. Whatever happens in court or in Congress, Notre Dame's announcement was a marker: college sports needs to create a framework for compensating players for NIL rights, or the new deals it needs to make for the sake of its future growth will become impossible.