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Texas Tech’s legal gamble forces the Big 12 to blink or fight
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- Texas Tech’s legal gamble forces the Big 12 to blink or fight
The latest strike in Texas Tech's unilateral legal fight involving quarterback Brendan Sorsby with its resident conference, the Big 12, came Thursday, June 11 via a staunchly worded letter from the office of the Texas attorney general Ken Paxton that further threatened legal action against the league should the Big 12 invoke its own rules against Tech.
By Thursday afternoon, on the heels of a preliminary meeting with the conference's executive board and ahead of a scheduled meeting of the Big 12's full board on Monday, June 15, the league issued its third statement this week from commissioner Brett Yormark.
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"Shortly before the start of today's Big 12 Executive Board meeting, the Conference received a letter from the Texas Attorney General's office notifying the Conference of potential legal action from Texas Tech if the Conference pursues certain actions under its Bylaws," the statement, attributed to Yorkmark, read. "We are taking time with our legal counsel to understand the concerns of the state and will meet again with the full Board next week.
"We moved forward with our Executive Board today in preparation for our full Board meeting on Monday. We had a good and informative discussion. Sentiment among the Executive Board was no different from what we heard from the ADs earlier this week."
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Then, Yormark delivered the most important line:
"Our discussion with the full Board will determine our course of action," he said in the statement, "and all options remain on the table."
Big 12 commissioner Brett Yormark walks on the field during the 2026 Big 12 Conference title game at AT&T Stadium.
Shortly after the Big 12 released Yormark's statement, Sorsby's high-profile attorney -- Jeffrey Kessler -- released his legal response on the heels of the moves from both the Texas State Attorney General's Office and the Big 12.
Essentially, Kessler said a move by the Big 12 to preclude Sorsby from participating in the upcoming 2026 season would be met with Sorsby and his legal team holding the conference to full liability.
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"The Big 12 is bound by the Order as an entity 'in active concert or participation' with Defendant NCAA. (Tex. R. Civ. P. 683.) Any attempt by the Big 12 to circumvent the Order including by sanctioning Texas Tech University ('Texas Tech') under Bylaw 3.6 of the Big 12's bylaws encouraging or facilitating its member schools to boycott Texas Tech football or Texas Tech athletics more broadly," Kessler wrote, "or otherwise taking steps to prohibit Mr. Sorsby from 'practicing, playing, or otherwise participating on Texas Tech's football team for the 2026 football season' - would violate and be in contempt of the Order.
"In addition, a boycott of Texas Tech or of Mr. Sorby would be a per se violation of antitrust laws and expose the Big 12 and each of its boycotting members to substantial liability. There is no defense to a per se unlawful boycott of this type, and Mr. Sorby will hold the Big 12 and its members fully accountable for their actions.
"Any such action would also expose the Big 12 to liability for tortious interference with Mr. Sorsby's existing and prospective contractual relations, including name, image and likeness deals with Texas Tech and third parties. The Big 12 would be liable for all resulting damages."
The ongoing saga has erupted this week after Sorsby was granted temporary injunctive relief against the NCAA in Lubbock County, Texas, district court by retired judge Ken Curry. The move preempted the NCAA's decision to permanently ban Sorsby from NCAA competition per the organization's rules against gambling. Sorsby has admitted to placing dozens of wagers on his team at Indiana among the thousands of bets totaling at least $90,000 that the investigation has uncovered.
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In his letter, Paxton cautioned the Big 12 against the conference's ability to sanction its member institutions if a "super-majority of disinterested (athletics) directors" voted to take action against Texas Tech, via the league's bylaws.
Specifically, Big 12 Bylaw 3.6 provides the league with the ability to sanction a member if that institution is deemed to be acting in a manner "materially adverse to the best interests of the Conference."
The attorney general's office, effectively, tried to issue a preemptive strike via threat of legal action againt the Big 12 on behalf of Texas Tech:
"Any sanction against Texas Tech for acting consistent with (Judge Curry's) order would be a per se violation of federal and state anti-trust laws -- a naked horizontal agreement among competitors to disadvantage Texas Tech by cutting off access to the resources it needs to compete," the letter, signed by Thomas D. York, head of the office's antitrust division, and Kimberly Gdula, chief of the office's general litigation division, read.
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In his ruling Monday in the West Texas courtroom, Curry leaned on contract law as he granted Sorsby's request for injunctive relief and also established a full-hearing court date of Feb. 8, 2027, for the case -- exactly two weeks after the conclusion of the College Football Playoff.
The NCAA announced its decision to file an appeal later Monday and also asked the court to expedite the process.
Ryan Regula, a partner at the Washington, D.C.,- and Phoenix-based law firm Snell and Wilmer, as well as former NCAA student-athlete at both Notre Dame and Pittsburgh, has done extensive contract litigation and written from a legal viewpoint on Curry's ruling in the Sorsby case.
"The NCAA's strongest argument is structural, not doctrinal," Regula, a football player for a season at Pitt and track scholar-athlete of the year at Notre Dame, told USA TODAY Sports. "If every disciplinary determination can be relitigated in any sympathetic state court, then no uniform system of rules is possible, and without uniform rules, competitive athletics simply cannot function.
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"That argument has deep roots. It mirrors the rule-of-reason analysis the U.S. Supreme Court applied in NCAA v. Board of Regents of the University of Oklahoma , 468 U.S. 85 (1984), where the U.S. Supreme Court recognized that certain coordinated rules are necessary for the product to exist at all. You cannot have athletic competition without agreed-upon eligibility standards any more than you can have a game without agreed-upon field dimensions. Sorsby's breach-of-contract theory, taken to its logical conclusion, would subject every NCAA sanction to de novo judicial review in 50 states under 50 different contract-law standards. This destroys the very uniformity that makes competition meaningful.
While Regula noted the potential pathway for the NCAA's legal battle, a Big 12 general manager who spoke to USA TODAY Sports Thursday offered a much more candid view of his program's current mindset.
"I absolutely do," he said, granted anonymity to speak freely, when asked if he expected to see Sorsby playing in Big 12 competition this fall.
Added a defensive assistant coach whose program is scheduled to face the Red Raiders when asked the same question by USA TODAY Sports, "You get the feeling unless someone comes down on them (Texas Tech), they are going to let him play. Which is (bleeping) crazy."
This article originally appeared on USA TODAY: Big 12 reacts to Texas AG Ken Paxton's threat on Brendan Sorsby
