Sorsby Legal Fallout Could Expand to Big 12, Texas Tech

The legal saga featuring Texas Tech quarterback Brendan Sorsby has already disrupted college sports, with a judge this week ruling the 22-year-old can play despite having bet on his team—heretofore a cardinal sin in sports, and one that can lead to a permanent ban in the NCAA just like in other sports associations.

But the real fireworks in court are likely yet to come.

Sorsby, who is already a plaintiff in a lawsuit against the NCAA and a defendant in a lawsuit brought by the University of Cincinnati, could become a party or key witness in other litigation that ensnares colleges, a conference, the NCAA and even the State of Texas.

At the heart of the dispute is the ability of the NCAA, as a national member organization, to apply and enforce eligibility and gambling rules that protect the integrity of sports, the responsibilities of a conference to its members and a school’s desire to win.

As Sportico has documented, many of the legal problems facing college sports in this era stem from the unwillingness of member schools to follow their own rules, such as when they use NIL as pay-for-play. A corollary of that problem is member schools, which want to play the best players, cheering on their own athletes when they sue the NCAA to extend their eligibility past NCAA rules. Texas Tech is merely the most recent school in that category.

Sorsby, who has received treatment for gambling addiction and anxiety disorder and whom the NCAA claims has, directly or through intermediaries, placed thousands of sports wagers while an athlete at Indiana, Cincinnati and Texas Tech from 2022 to 2026, insists the NCAA has unfairly handled his gambling addiction with respect to his eligibility. The QB has depicted his issues as related to mental health, though it’s worth noting that the Americans with Disabilities Act (ADA) excludes compulsive gambling as a covered disability.

The NCAA has raised several arguments in defense. One is that prohibitions on gambling protect the integrity of athletic competitions and discourage athletes from partaking in a sports betting culture where data suggests numerous college students wager on sports. Another is that Texas law accords substantial deference to private associations in their application of membership rules.

Lubbock County (Texas) District Court judge Ken Curry granted Sorsby a temporary injunction that ordered the NCAA to declare him immediately eligible, though Sorsby will need to sit out the first two games of the Red Raiders’ season. Judge Curry concluded that Sorsby would suffer irreparable injury, meaning an injury that monetary damages can’t remedy, if he was denied “the elite coaching, training resources, camaraderie and regimen that only being a member of a Division I college football team can provide.” 

The NCAA has appealed the judge’s order.

Over the last several days, Texas attorney general Ken Paxton wrote a letter to the Big 12 threatening legal action if the conference punishes Texas Tech for playing Sorsby. Sorsby’s attorney, Jeffrey Kessler, wrote a similar letter, warning the Big 12 to comply with the court order.

Under its bylaws, the Big 12 can punish a member school for engaging in actions materially adverse to the conference. The bylaws indicate that Texas Tech would need to have an opportunity to be heard and that a supermajority vote of other member schools would be required. Available sanctions include “appearance in postseason events or televised events, restrictions on revenue distributions, and limitations on recruiting or scholarships.”

The conference and its members could decide to not play Texas Tech, and through an amendment process, the bylaws permit the conference to suspend or even expel a school. According to ESPN, leaders of the other 15 Big 12 schools held a conference call in which all 15 were unanimously opposed to Texas Tech playing Sorsby.

Meanwhile, Texas Tech is pushing back. In a video released Thursday night, Texas Tech athletic director Kirby Hocutt, head football coach Joey McGuire and other university officials defended the school’s right to play Sorsby. The group insisted that the school has put in place appropriate measures to monitor Sorsby and that he continues treatment.

A Legal Playbook for Suing the Big 12 and its Members

If the Big 12 takes any punitive action against the school or the player, Paxton, Texas Tech and Sorsby could all file new legal actions.

For starters, the Big 12 and its member schools are vulnerable to antitrust claims if they team up against Texas Tech. The basic antitrust theory would be that other Big 12 member schools are competing businesses, and when they join hands to exclude Texas Tech, they’re harming the marketplace for college football. Consumers, in theory, would be worse off if Texas Tech is excluded, since there would be one fewer premier football team in the market to consume as fans and viewers.

Breach of contract is another possible claim. Under Big 12 bylaws, Texas Tech is owed a fair shake to make its argument before the conference acts against it. Reporting that the 15 member schools have already decided that Texas Tech shouldn’t play Sorsby could be construed as prejudging Texas Tech and failing to honor the procedural safeguards guaranteed by the bylaws. Texas Tech could conceivably sue for many millions of dollars in damages if it believes the conference has acted illegally against it.

Along those lines, Paxton, as the highest-ranking legal officer in Texas, could insist that Texas Tech, a public university, and its officers and students have been denied due process and other protections under the state constitution. The state has an interest in the enforcement of contracts signed by its public universities, and bylaws are contracts between conferences and member institutions. Paxton could also underscore the anxiety disorder aspects of Sorsby’s health to claim a conference can’t punish a school for playing an athlete with a health condition.

There are also potential interference-with-contract claims. Texas Tech coaches, staff and athletes, including Sorsby, could maintain that their employment, NIL and revenue share contracts are all jeopardized and harmed by conference action against Texas Tech. Sorsby reportedly landed a $5 million NIL deal to join Texas Tech as a transfer from Cincinnati earlier this year.

Further, broadcast and other licensing contracts are stake and could form of breach of contract and contractual interference litigation. If Texas Tech is denied contractual rights from TV, merchandise, apparel and other contracts that involve intellectual property rights, the school could sue for breach of contract and assert that the Big 12 and its members are unlawfully interfering with contracts.

Sorsby could also argue that the Big 12 would be in violation of Judge Curry’s temporary injunction by punishing Texas Tech for playing Sorsby. Sorsby would assert that while the Big 12 and its members aren’t named parties to the injunction, they are member institutions of the named defendant—the NCAA—and thus must follow the order. Sorsby and Texas Tech might also petition the NCAA to punish the Big 12 and other members for undermining a court order, improper conduct that the NCAA would ordinarily find problematic even if in this instance the NCAA is an adverse party to Sorsby.

A Legal Playbook for the Big 12 and its Members Defending Against Litigation

The Big 12 would be armed with defenses. As attorney Tom Mars, who has represented athletes and coaches in lawsuits, has outlined, Texas law requires a finding that an association failed to follow its own bylaws or acted in bad faith. Those would be high benchmarks for Texas Tech to establish, so long as the conference follows its own bylaws. Given that Sorsby has admitted to betting on his team, it’s difficult to imagine a court would find that the Big 12 acted in bad faith, which in law generally refers to dishonesty or fraud, by sanctioning a school for playing Sorsby.

Analogously, the Big 12 could assert that it is obligated to take action against Texas Tech, and that failure to do so would undermine its own bylaws. If member schools vote to punish Texas Tech, the conference has a fiduciary duty to act and not ignore the vote. In that same vein, if the conference fails to stop conduct that is detrimental to the conference’s interests, it would have failed to adhere to its own rules.

The Big 12 could also emphasize that the NCAA’s court filings indicate Sorsby, who has not been charged with a crime, might have participated in criminal acts in Texas, where sports betting is barred by a criminal statute. The NCAA says that Sorsby sent thousands of dollars via Venmo or Zelle to other individuals who used proxy accounts with sports betting companies to place bets on Sorsby’s behalf.

Texas is one of the 11 states where sports betting remains illegal. It is a class C misdemeanor, punishable by a $500 fine, to gamble in Texas. The Big 12 could plausibly maintain it would not only undermine fair play, integrity of the game and legitimacy of competition for Sorsby to play, but taking no action would be tantamount to the conference and its educational institutions endorsing conduct that Texas law treats as a crime.

It’s also conceivable that other Big 12 member schools could seek court orders in their own states to block Texas Tech and/or Sorsby from playing. There’s the possibility of a state judge being sympathetic to another Big 12 school, just as a state judge was sympathetic to Sorsby and Texas Tech. Judge Curry’s jurisdiction is limited to Lubbock County, too, and doesn’t extend to other jurisdictions, including other states.

However, in law there is a principle known as “comity” (rhymes with comedy), and it refers to courts in different jurisdictions respecting court rulings issued elsewhere. That principle would likely be a major check on a judge from another state acting against him, though there are no guarantees. 

The only certainty at this point: Expect more legal twists and turns.