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"Pay For Play Is On The Way": The Assembly's Dwayne Ballen on college athletes as employees

Christian Petersen
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A landmark 2021 Supreme Court case cleared the way for those playing college sports to capitalize on their name, image, and likeness. Some think that makes the era of paid college athletes inevitable. WHQR’s Ben Schachtman spoke with Dwayne Ballen, who wrote about the issue for The Assembly.

College athletes are considered amateurs—but they are the essential components of what has become a multibillion-dollar entertainment enterprise.

As coaches, administrators, and TV executives made more and more money from college football and men’s basketball, various college athletes laid the legal groundwork for why they should be paid for their labor. But none of those lawsuits fundamentally changed the business.

That is, until 2021, when the U.S. Supreme Court ruled unanimously that college athletes could be paid by outside sources for use of their name, image, and likeness—essentially, for endorsements. Justice Brett Kavanaugh was blunt in his concurring opinion.

“The NCAA’s business model would be flatly illegal in almost any other industry in America,” he wrote. The NCAA, the governing body of college sports, had built “a massive money-raising enterprise on the backs of student athletes who are not fairly compensated.”

Read Dwayne Ballen's in-depth piece at The Assembly, here.

Ben Schachtman S: Okay, Dwayne your piece out this month in The Assembly is called “Pay to play is on the way.” And you convey the sense that after the 2021 Supreme Court ruling on name, image, and likeness, the era of paid college athletes is coming.

Dwayne Ballen: Yeah. Oh, it's definitely coming because the key thing to watch is the Third Circuit Court out of Philadelphia. A three-judge panel held hearings back in January, in a case called Johnson v. NCAA – Robert “Trey” Johnson, a Villanova football player, made the argument that he and other division one athletes of his ilk are entitled under the Fair Labor Act to be designated as employees, with minimum wage, overtime. The arguments did not bode well, for the NCAA, it was clear from the judges, the three judges. They were not buying the NCAA’s argument. So we're expecting a ruling. I think by early to mid-fall, that ruling is going to come down. And that is the ruling been it's going to shake everything up.

BS: So in this shakeup, where we have paid college athletes, what does it look like in your piece, you write about the Duke model, and also the free market model. Tell us about that.

DB: Yeah, the Duke model was made by a man who was a professor, named David A. Grenardo, he was a law student at Duke. And he came up with this model. He's really looking at football players and men's college basketball players, how to compensate them. And he has a tiered system, where you get a basic set of basic amount for simply being on the team. Let's call it $5,000. Then you get adjusted amounts for if you hit certain individual marks, and if your team does certain things, if you get to the conference, championship, if you win, you get tiered money. It's almost like incentives in a professional contract. And they can make a few $100,000 by athletic year's end based on this program. Now, that's the Duke model. He also has another model: athletes are compensated by what the free market dictates. And I'll be honest, I don't think many universities want to go down this free market model route because there are really no guardrails for that.

BS: I have to ask, are some schools worried about or considering cutting some programs that basically don't generate enough revenue to pay athletes, I can

DB: I can tell you that a lot of administrators I've talked to, they're nervous, they do think this is going to happen. Their concerns are preserving their athletics program as a whole. No one seems to be overly concerned with football at the major level, because everyone realizes football is going to take care of itself. I mean, the college football playoff system in the new expanded format is going to have a deal, it's going to make $2 billion a year. So that's a lot of money. So college football at the major level is going to be fine. I think the concern is how do you structure it so that you still maintain some kind of semblance of college athletic programs. I think it's probably gonna be a separation, in the end. They will be funded, I think at a different level. And they may not have the access to everything you would have had if they had the largest of men's basketball and football coming in.

BS: So here's my last question for you. And this is something I hear from critics of the college athletics system. And they're mostly talking about football and men's basketball. But their critique is that the educational part of his college experience is basically just a fig leaf over the athletics program. Do you think this would exacerbate that or not change it at all? How do you think about that?

BS: Well, I think it'll draw that line of demarcation. There'll be more clarity. You can also in a Duke model says you can decide whether or not you wish to go to class, because you're an employee. It's almost like the GI Bill, do you want to avail yourselves of that? Do you want to take advantage of the fact that you have the opportunity as part of your compensation to get an education? That's your decision. And actually, frankly, Ben. that seems more American, I guess.

But they're going to build in the fact that these are young people making decisions, so that when they do reach a point where they realize that that might be something of important importance to them, that they can go back and get their education, you have that window much longer for education, and for health support for health insurance support. But as far as taking the fig leaf off, again, I think it just gives a clarification. Because I know for a fact that at the major college level, especially in football, a lot of football coaches do not want to be hindered by classes. I know that because I've talked to some who have said that.

BS: Okay, well Dwayne Ballen, contributing writer for The Assembly. Thanks for being with us.

DB: I am happy to do it. Very happy to do it.

Ben Schachtman is a journalist and editor with a focus on local government accountability. He began reporting for Port City Daily in the Wilmington area in 2016 and took over as managing editor there in 2018. He’s a graduate of Rutgers College and later received his MA from NYU and his PhD from SUNY-Stony Brook, both in English Literature. He loves spending time with his wife and playing rock'n'roll very loudly. You can reach him at BSchachtman@whqr.org and find him on Twitter @Ben_Schachtman.