Preparing for the Inevitable—Compensating College Athletes for Playing—By Comparing Two Pay-For-Play Methods: The Duke Model Versus the Free Market Model

45 Pages Posted: 13 Jan 2023 Last revised: 7 Dec 2023

See all articles by David Grenardo

David Grenardo

University of St. Thomas - School of Law (Minnesota)

Date Written: January 13, 2023

Abstract

Many scholars and authors, including a Justice of the United States Supreme Court, referred to the business of college athletics as being built on the backs of college athletes who suffered from exploitation because they were not allowed to profit while others flourished in the business of college sports, which is currently an $18 billion industry. Many struggled, and continue to struggle, to gain rights for college athletes to earn money based on their prowess and accomplishments in college athletics. Those struggles resulted in major advancements for college athletes. The most recent win came with allowing college athletes to earn compensation based on the use of their Name, Image, and Likeness (NIL). Although there will certainly be more struggles before it happens, both the arrival of NIL deals for college athletes and also the Supreme Court of the United States’ decision in Alston that gave notice to all, particularly the NCAA, that college athletes should not be exploited any further, indicate pay-for-play is inevitable.

The question surrounding pay-for-play then changes from whether it will happen to when it will start and what it will look like. A date certain cannot be placed on when college athletes will receive compensation for playing, but the time is coming near. As for how they will be paid, this Article focuses on examining two potential methods to pay college athletes—a performance-based model and a free market model.

Part I of the Article examines the signs of the times that clearly indicate pay-for-play is coming sooner rather than later. Parts II and III describe the Duke Model’s and the free market model’s ability to compensate college athletes, respectively. Part IV includes a detailed comparison of the two models. Part V addresses any additional issues with pay-for-play, such as tax issues. This Article concludes that pay-for-play is coming soon, and the easiest and most equitable way to compensate players is via the Duke Model, which is based entirely on performance of the players on the field or court and in the classroom. The injustices and exploitation raised the backs of players, SCOTUS, the public, and legislators—and now change is coming.

Keywords: College athlete compensation, pay for play, college athletics, antitrust, Title IX, college athlete compensation tax, Alston, O'Bannon, free market, performance based, exploitation, name image and likeness, NIL, amateurism, NLRA, salary cap, NLRB, employee

Suggested Citation

Grenardo, David, Preparing for the Inevitable—Compensating College Athletes for Playing—By Comparing Two Pay-For-Play Methods: The Duke Model Versus the Free Market Model (January 13, 2023). University of Memphis Law Review, Vol. 53 (Symposium Issue, Forthcoming), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 23-13, Available at SSRN: https://ssrn.com/abstract=4323937

David Grenardo (Contact Author)

University of St. Thomas - School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States

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