SEATTLE — In sporting terms, this was Super Bowl XLVIII, with the NCAA playing the role of the thoroughly trounced Denver Broncos.
In legal terms, this might well turn out to be college sports' version of Flood v. Kuhn, a case that in isolation didn't lead to massive change, but which laid the groundwork for future challenges that struck down Major League Baseball's reserve clause. The resulting advent of free agency fundamentally altered the nature of not just baseball, but all professional sports.
Now comes Monday's Supreme Court decision in NCAA v. Alston, which ruled on the relatively narrow question of whether the NCAA could limit schools from providing student-athletes with "educated-related expenses" — the likes of internships, graduate scholarships, computers and scientific equipment.
By a 9-0 margin, the Supreme Court said the NCAA could not, a unanimous ruling that is almost unheard of in these divisive days. The enforcement of this particular case, filed on behalf of former West Virginia football player Shawne Alston and others, will not massively change the nature of college sports. But make no mistake: the ramifications of this decision, particularly the concurring opinion by Justice Brett Kavanaugh, are profound, and potentially revolutionary.
Essentially, Kavanaugh, in his blistering opinion, stated that the antitrust protection shielding college sports for decades, and providing the cover for NCAA's staunch stance against compensation for athletes, is fraudulent. Gabe Feldman, director of the sports law program at Tulane University, called Kavanaugh's opinion "the most anti-NCAA, damning antitrust opinion that has ever been authored" in an interview with ESPN.
It doesn't take a legal scholar to foresee what this means for the future of college athletes: the pending end of the amateur model that has governed the NCAA through its 115-year existence. It's the model it has desperately clung to despite the growing tide of popular opinion that athletes deserve a share of the billion-dollar revenue that is generated on the backs of their labor.
And now they're about to get it. Kavanaugh practically sent an engraved invitation for future plaintiffs to mount further challenges of the NCAA's claims of antitrust protection in its defense of amateurism. Those claims were solidified in the famous "NCAA v. Board of Regents of the University of Oklahoma" Supreme Court case of 1984 (which the NCAA lost), and now potentially torn asunder in "Alston."
Indeed, the Seattle-based co-counsel in the Alston case, Steve Berman, told ESPN on Monday that his firm is considering amending its complaint to seek the removal of any restrictions on compensation to athletes.
"In light of Justice Kavanaugh's comments, we're rethinking whether we should once again challenge pay for play," Berman said. "Kavanaugh is suggesting you should go after everything."
It's hard to pick the Kavanaugh quote from his opinion that's the most damning to the NCAA.
Maybe it was this one: ""The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA's business model would be flatly illegal in almost any other industry in America."
Or this one: "Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law."
Or this one: "Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work."
The NCAA's immediate challenge is gaining control of the NIL (Name, Image and Likeness) train as it goes careening down the tracks, with or without it. NIL is the long overdue ability of athletes to be compensated through third-party endorsements, and it's going to change the landscape of college sports; but no one quite knows how. Not yet.
This is something the NCAA should have gotten ahead of long ago; now it has less than two weeks to craft legislation governing NIL by July 1, which is the date that NIL laws in six states (Alabama, Florida, Georgia, Mississippi, New Mexico and Texas) go into effect.
The NCAA hoped Congress would take that burden from it, and include language to protect it from antitrust challenges in the process. But despite the introduction of numerous bills, from both sides of the aisle, that won't happen by July 1.
So now if the NCAA can't pass its own NIL legislation in the next week or so, it faces a situation where athletes in six states would enjoy NIL freedoms, while those in the other 44 would not.
At least theoretically. The Supreme Court ruling Monday defuses the ability of the NCAA to play hardball. In fact, any restrictions on player compensation that it codifies will now set it up for a lawsuit, based on the Alston ruling. And in the absence of an overarching federal law on NIL, the state laws would supersede anything passed by the NCAA.
It's going to be the wild, wild West for a while, until all this sorts itself out. But that's all right. We've finally reached the reckoning that has long been needed, and for the past decade or so has inexorably been gaining momentum.
It's a brave new world in college sports. Yes, there are potential pitfalls once compensation for athletes begins. There will be unintentional consequences. But those will be sorted out over time. Eventually, we'll look back at the era of athletes' exploitation and wonder why it took so long to shed.