The highest court in the land had questions, lots of questions on Wednesday as the U.S. Supreme Court heard an appeal in the NCAA v. Alston case. Mostly, the justices were asking questions of the NCAA in the latest and perhaps biggest legal challenge the association has faced.
The NCAA did not fare well in the oral arguments over the its ability to regulate education-based benefits. The far-reaching implications of the case could further limit the NCAA's already shrinking power base.
In the moment, it's still a perception battle as there won't be an actual Supreme Court decision until late June. And even then, a Democratic-controlled Congress could put forth NIL legislation that would be much more expansive than anything the NCAA is considering.
It was fascinating to hear the Supreme Court dig down into the elemental conflict that is college sports -- a for-profit business model overseen by a not-for-profit behemoth (NCAA) pushing a version of "amateurism" that exists nowhere else in the world.
"Why does the NCAA get to define what 'pay' is?" asked Justice Amy Coney Barrett.
Why, indeed? At that point, the NCAA was being hung by its own rules manual that states over and over that the athlete experience should be as close to the regular student experience as possible.
The regular student can have its own YouTube channel, be in a band, earn thousands from social media exposure. NCAA athletes are limited to room, books, board, tuition and cost of attendance.
Nearly all the justices poked at the NCAA's reasoning for limiting compensation.
"Antitrust laws should not be a cover for exploitation of the student-athletes, so that is a concern, an overarching concern here," said Justice Brett Kavanaugh.
Here is a breakdown of what went down Wednesday.
For now, it's the appellees. Alston's lawyers contend those education-based benefits should be uncapped. That's what the Ninth District Circuit Court ruled last year. The NCAA's defense has been asserting that district Judge Claudia Wilken misapplied the law in her decision while simultaneously holding up its amateurism model in the process.
Judging from the questions from the justices, six of whom are conservative, it did not go well for the nation's powerful amateur body.
"That was pretty damning for the NCAA," said Alicia Jessop, a Pepperdine University law professor.
Jessop puts the projected Supreme Court vote from 5-4 to 7-2 in favor of Alston. The final ruling will come down in late June. NCAA attorney Seth Waxman was put on the defensive by the Supreme Court several times after using the now-familiar argument that any more benefits for athletes would destroy amateurism.
"We have looked at these claims from the NCAA over and over again that each loss was going to hurt college sports and destroy this revered tradition. It's never happened," said Alston attorney Jeffrey Kessler.
What does it mean?
The NCAA has basically asserted that, if its appeal is not granted, the sky will fall on amateur athletics. It says there will be a pay-for-play system that looks a lot like professional sports.
What the NCAA fails to recognize is that we've lived through a professional environment for decades without amateurism collapsing. It started the moment the NCAA allowed free scholarships in 1956. Those were available only for athletes due to their talent.
The system continues today. Former Texas swimmer Joseph Schooling was awarded $740,000 by his country (Singapore) for winning an Olympic medal. Former Oklahoma quarterback Kyle Murray turned professional in baseball -- signing a $5 million contract -- while leading the Sooners to the College Football Playoff.
The NCAA itself negotiates billion-dollar media rights and signs lucrative corporate sponsorships. Meanwhile, athletes' compensation is capped despite that free scholarship. The optics are not good.
None of the justices referenced the widely-recognized black market in recruiting that exists under the table that pays athletes exorbitant sums. The NCAA recognizes that underground income but has not been able to slow it to any degree via its enforcement department.
Kessler stressed that a favorable ruling would be limited only to what is on the table -- uncapping education-related expenses. That's being a bit myopic.
A ruling in favor of Alston would arguably be the NCAA's second-biggest court loss next to Board of Regents v. NCAA in 1984. That case is basically the reason we're here. It opened the spigot on the flow of billions of dollars in media rights into the system.
If that money wasn't there, the plaintiffs wouldn't be suing to get some of it and the NCAA wouldn't be appealing to keep amateurism status quo. For one reason, there wouldn't be enough money in the system for high-powered attorneys to huge fees from their clients.
Example: USA Today estimated the NCAA spent well over $200 million in legal fees to get Wednesday's moment with the Supreme Court.
If the NCAA fails in its appeal, college athletics won't necessarily go down pay-for-play road. Fan interest won't let it. For one, there is nothing about this case that suggests Alabama will stop getting the best players in recruiting and Toledo will suddenly become a national power.
The NCAA had a chance to avoid this day back in 2009. That was when former UCLA forward Ed O'Bannon sued because he wasn't allowed to get a cut from the EA Sports basketball video game.
Almost everything you're reading today springs from that moment. Had the NCAA struck a group licensing deal with the athletes, the Supreme Court probably wouldn't be a battleground today. But the NCAA was as determined then to defend the amateurism model as it is today.
That means the association has to make a significant comeback after Wednesday. A conservative court reinforced by the previous administration seems to have done its job -- judging the case on its facts.
That doesn't necessarily mean the appellees will win. These are informed professional opinions on the outcome of Wednesday's events. Call it a legal Final Four breakdown. But there are signs that no matter what happens, the NCAA's influence and power are diminishing.
Even if the NCAA wins its appeal, as previously mentioned, there is speculation a Democratic Congress will fight back with expansive name, image and likeness legislation. The NCAA delayed NIL legislation in January because the Department of Justice wants to review it.
At the same time, the NCAA needs Congress' help to implement its version of NIL. For decades, the NCAA shied away from any federal intervention in its business. Now it can't seem to conduct business without the feds.
On its face, this is not a case about NCAA compensation. This is a case that explores in what can be covered in an athletic scholarship. As of now, that limit is $5,980 for things like computers and international study. Justice Elena Kagan said that figure seemed arbitrary.
She isn't the only one questioning the big picture.
"How do we know," Justice Sonia Sotomayor asked, "that we're not just destroying the game as it exists? Meaning we're being told by [the NCAA] that all of these education-related payments can become extravagant and, as a result, be viewed by the public as pay for play. Any fix would come after the fact, after the game has been -- after amateurism has been destroyed in college sports. How do we ensure that doesn't happen?"
"Destroying the game" strikes at the heart of the argument. Athletes have been earning exorbitant amounts of money for years. There is cost of attendance that ranges between $2,000-$5,000 per academic year. Bowl gifts are capped at $550. Schools are allowed to pay insurance premiums to protect players' draft value that are worth $80,000 or more.
"That," Justice John Roberts said, "sounds like pay for play."
The very issue the NCAA went to the Supreme Court to outlaw.