What could the Big 12's lawsuit have done to college sports? A thought exercise!

Good morning, and thanks for spending part of your day with Extra Points.

It’s been a very busy last few days on the “college sports + politics + lawsuits” beat. As I’m sure you’re already aware of that this point, embattled Texas Tech quarterback Brendan Sorsby’s college sports career is now over. Sorsby will declare for the NFL’s supplemental draft, rather than drag out the legal battle over his NCAA eligibility.

One of the factors that led to this conclusion, reportedly, was the Big 12’s decision to file a lawsuit of their own. And to help us understand that strategy, what it actually meant for the Big 12, Texas Tech, and future litigation, I turn the time over to Special Extra Points Legal Correspondents Neal Ternes of Northern Illinois and Sam Ehrlich of Boise State.

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by Neal Ternes and Sam Ehrlich

That sound you heard earlier this week was a collective sigh of relief from college sports leaders, who just avoided a potentially nasty legal battle.

After weeks of headlines and controversy — schools threatening to boycott Texas Tech, states’ attorneys general trading barbs — the Brendan Sorsby saga ended abruptly. On Monday morning, the Big 12 filed a lawsuit against Texas Tech, and that evening, the Red Raiders’ former quarterback opted to enter the NFL’s supplemental draft. 

Presumably, those two actions were linked. So why was the Big 12 lawsuit, in the words of attorney Tom Mars, so “devastating”? And if it had proceeded, what might it have done to college sports?

The filing accused Texas Attorney General Ken Paxton and Texas Tech of violating the Big 12’s First Amendment rights and argued that the conference’s ability to penalize Tech for allowing Sorsby to play was legal under antitrust law.  In essence, the lawsuit was intended to give the Big 12 legal protection so it could punish the Red Raiders. 

This spring, Sorsby, who had transferred over the winter from Cincinnati to Texas Tech, entered rehab at the same time as news broke that the NCAA was investigating him for gambling improprieties, including wagering on his own team. The NCAA ruled him ineligible in May, and Sorsby promptly filed an injunction — which he won, earning back his 2026 eligibility. On June 11, Texas Attorney General Ken Paxton, whose office represents Texas Tech, sent a letter to the Big 12 stating that he would pursue antitrust litigation against the conference if it made any attempt to sanction Texas Tech for following the district court ruling that granted Sorsby his eligibility.

That letter opened the door for the Big 12’s lawsuit, which accused Paxton and Texas Tech of violating the conference’s First Amendment rights and argued that its ability to penalize Tech for allowing Sorsby to play was legal under antitrust law.  In essence, the lawsuit was intended to give the Big 12 legal protection so it could punish the Red Raiders. For a lawsuit to be successful, any aspiring plaintiff needs standing — to show the court there is direct harm that has or will result from the action they are trying to challenge. Paxton’s threat to litigate any sanctions the conference might place on Texas Tech represented a very real and imminent harm for the Big 12, giving it the standing it needed.

Moreover, because Paxton is a government official, his actions allowed the conference to use constitutional law in its claim, arguing that Paxton’s threat was a violation of the conference’s First Amendment right to free association. In April, we wrote about state action doctrine; here’s the short explanation: Constitutional rights are only protected from the government, not private entities. If Sorsby or his attorneys had made this threat, there would be no First Amendment claim because neither is a state actor. But since Paxton made the threat, the First Amendment is on the table.

Losing would have meant conference sanctions against the university — but the suit also could have led to some uncomfortable discussions across college sports.

For starters, freedom of association is a form of freedom of speech which the courts have elaborated over several decades of jurisprudence. It protects the speech of private organizations by saying the government cannot force inclusion of people into that group who would undermine the message that group is trying to project. When evaluating a freedom of association claim, the courts examine two things: whether the association is itself expressive and whether the required inclusion of a person or group would undermine the intent of that expression. For example, if I had a private Longhorns fan group, I’d have a right to say we don’t allow Oklahoma or Texas A&M fans to join. 

The Big 12, citing its official statements and bylaws, essentially argued that it has long expressed a commitment to sportsmanship and ethical conduct that extends beyond the playing field. Also included in the Big 12’s filing were several examples demonstrating that its position on athlete gambling was consistent with ideals of sportsmanship and fair play used in other sports organizations. Allowing Sorsby to play after revelations that he had placed wagers on his own team, the conference argued, would undermine that message.

It is a sound argument, but not air-tight. Opposing counsel could have pointed to the Big 12’s partnerships — such as one with the Players Era men’s basketball championship in Las Vegas — that put its message directly inside casinos where sports betting occurs. The conference’s media partners, ESPN and FOX, also routinely broadcast wagering lines and advertise sportsbooks during games. It was even reported in 2023 that the Big 12 was exploring a data partnership with IMG Arena, a company that distributes data primarily for sports gambling. If the Big 12’s identity as a group is based on sportsmanship and integrity, and if gambling by athletes poses an existential threat to that message, then why does the league partner with so many entities that promote gambling? 

Yes, the Big 12 is really no different than just about every other major sports organization in the United States when it comes to gambling partnerships. There is also a difference in the threat to the conference’s core product between players or coaches gambling on games and the general public betting on games. Still, it’s hard to argue that you are trying to protect your First Amendment right to express that athletes gambling is bad when that message regularly appears alongside the logo for DraftKings. 

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For one, that would involve conferences deciding they want to start enforcing rules instead of the NCAA. We’ve heard rumors of superconferences and breakaways from the NCAA for years — the SEC openly discussed the possibility only a few weeks ago — so this isn’t completely irrelevant. But remember that the First Amendment claim in this case resulted from the Texas attorney general threatening the conference. Absent state action, there can be no First Amendment claim, so this wouldn’t help conferences if players sued them. It could, however, demonstrate some drawbacks to government involvement in college sports, which would be poorly timed considering the discussions going on in Congress.

There is also the issue of potential antitrust violations. Freedom of association is not a defense to antitrust claims, so the rules conferences enforce would still need to survive antitrust scrutiny — a fact Paxton referenced in his letter.

Conferences — as groups of schools that compete with one another both on and (more importantly for antitrust law) off the field — would be subject to Section 1 of the Sherman Antitrust Act in the same way the NCAA has been over the past several years. But while the NCAA has clearly been beaten and battered by antitrust law, there’s no guarantee conferences would suffer the same fate. 

To analyze this question, courts would turn to the full antitrust test, called the “rule of reason” test. Its purpose is to balance the anticompetitive harm of a particular restraint — i.e., what kind of harm it does to the economic market we’re looking at — against whatever procompetitive justifications the other side would come up with to defend its actions.

The anticompetitive harm of a group boycott is clear: someone boycotts a competitor until it falls in line. But the Big 12 would make two big counterarguments: First, would the anticompetitive harm affect all of a relevant market? For an antitrust claim to succeed, a plaintiff needs to show the defendants have market dominance; a group boycott looks a lot weaker if the party being boycotted just goes somewhere else.

The Ivy League famously distinguishes itself from other Division I conferences in one critical way: Its schools have collectively agreed not to provide athletic scholarships. But a few years ago, Brown basketball players Tamenang Choh and Grace Kirk filed a lawsuit calling this restriction price fixing.

They were probably right. From an antitrust perspective, there’s not much difference on the margins between the Ivy League schools banding together and agreeing to provide zero athletic scholarship benefits to athletes and the NCAA banding together and agreeing not to pay athletes for their broadcast NIL rights. The latter, of course, led to the House settlement.

But the Ivy League is not the only game in town. In its defense, the conference argued that if Choh and Kirk wanted athletic scholarships, they were free to go to Fordham or UMass or Vermont or Providence — or basically any other Division I school willing to take them. Choh and Kirk argued the Ivy League schools were special because of their academic prestige, but the court also pointed out that other highly selective schools like Stanford, Duke, Notre Dame and Rice do give academic scholarships. In dismissing the complaint, the court (in part) said: Why don’t you just go to Stanford, Duke, Notre Dame or Rice? Per the court (and the Second Circuit Court of Appeals earlier this year) those schools functioned as valid market substitutes, undercutting the plaintiffs’ argument about the Ivies’ market dominance, even if you could draw a more limited academic market.

The same principle applies to the Big 12 and Texas Tech. If Tech doesn’t like following the Big 12’s rules, it can go to another conference. Just as with the Ivies and Stanford, Duke, Notre Dame and Rice, there are market substitutes that would have seriously undercut any claim that the Big 12 has the requisite market power for its alleged restraints to have sufficient anticompetitive harm. It would be possible for Tech to argue that the market restriction is still broadly based on the rules set by the NCAA, but that wouldn’t be an easy argument to make. Ultimately, the court would have had to determine whether the SEC or Pac-12 or Conference USA or Patriot League might be wary of letting Texas Tech play Sorsby because of its own individual evaluations or because of a collective decision that would violate Section 1. Either outcome would only fuel more discussions about the viability of the current framework for college sports and whether conferences could be able to self-govern independent of the NCAA.

But even if the court were to feel there is market power, there would have been another big problem for Texas Tech. As we mentioned before, the rule of reason balances anticompetitive harm in a market with procompetitive benefits of the restraint. And there’s a big procompetitive restraint: ensuring the product at issue is safe from concerns about match integrity. In its lawsuit, the Big 12 cited a case that made the point perfectly: “because ‘[f]acially neutral rules that prohibit cheating are essential to promote fair competition and to preserve the integrity of the game,’ they are an ‘obvious’ procompetitive justification.” (And just because the case the conference cited was about competitive bridge doesn’t mean that the principle isn’t clearly applicable.)

In other words, Texas Tech was walking into a difficult legal battle that would have triggered several uncomfortable questions for all parties. It’s possible a victory for either side in this case could have been a Pyrrhic one based on the court’s evaluation of the various issues outlined above. Fortunately for everyone involved, the courts won’t be giving their opinion on these matters anytime soon.