Big 12 Stuns Texas Tech With Preemptive Lawsuit; Legal Expert Says It's "Brilliant"

The Big 12 just made a major legal move against Texas Tech in the Brendan Sorsby eligibility fight, and attorney/former Big 12 wide receiver Curry Sexton joins the show to explain why it may be a brilliant strategy by the conference.

After Texas Attorney General Ken Paxton and Brendan Sorsby’s attorney threatened legal action if the Big 12 punished Texas Tech, the conference filed first in federal court. The Big 12 is seeking a declaratory judgment and injunctive relief that would allow the league to enforce its bylaws and potentially sanction Texas Tech if Sorsby plays this season.

Curry breaks down what the Big 12 is really trying to accomplish, why this preemptive lawsuit could put Texas Tech on defense, how the NCAA’s emergency appeal fits into the bigger picture, and what could happen next before the 2026 college football season begins.

Topics include:

Why the Big 12 sued Texas Tech first
What a declaratory judgment means in plain English
How the Big 12 could punish Texas Tech
Why Curry believes the conference has the upper hand
The NCAA’s emergency motion to stay the injunction
The timing issue before football season
Whether Brendan Sorsby could actually play for Texas Tech
The larger impact on NCAA enforcement, sports betting rules, and college athletics

Transcript

SPEAKER_00 0:00

So I think the Big Twelve has an upper hand. Um, again, I think it's a brilliant strategy, assuming they can get a that they can get a fairly quick decision. We're gonna get a court to sign off on this preferred approach, and then we're going to sanction Texas Tech, and then they can still try to sue us, but they're going to be then trying to overcome a federal court decision.

SPEAKER_01 0:19

Well, the Big Twelve said, to hell with waiting for Texas Tech to sue us. We're going to sue first. Uh, the Big Twelve today filed a federal lawsuit in the Northern District of Texas to basically be able to enforce their own rules, bylaws, and sanctions with potential sanctions coming for Texas Tech. That's the huge news of today. The Big 12 decided not to wait on sanctioning tech, having tech come back and file a lawsuit against them. The Big 12 is trying to get permission from a federal court first to be able to enforce their own bylaws. Crazy world that we're living in. Uh, welcome in. It's the Open for Business Big 12 podcast. I am about to talk with uh my guy Curry Sexton, who is a great attorney, former K-State receiver. He used to run K-State's NIL uh program. So he is well versed in everything that is happening here and a great, great contact to talk to about all this. But I wanted to just give you a brief, brief rundown of everything. If you're just seeing this today and you're unaware of what exactly has happened, this started very early this morning, but the Big 12 filed a federal lawsuit in the Northern District of Texas, seeking both a declaratory judgment and injunctive relief to allow the league the authority to use its bylaws to potentially punish Brendan Soresby. So is the Big 12 on the right here? Will this work out for the Big 12? How likely is it that this will work and they'll be able to enforce this? What are they gonna be able to do as far as punishment? We got some answers on what exactly they're mulling over. All right, so definitely want to talk about that. And then just all the legal questions surrounding this and Ken Paxton in Texas, what they were trying to do. We're gonna get Curry's take on all of that, including, once again, he's got a pretty firm take on whether or not the Big 12 has a case here. A little bit more from the ESPN article. Uh, obviously, this move is a legal counter uh to the Texas Attorney General's letter last week, which uh warned that any sanctions that the Big 12th were out there would be, quote, unlawful and would be countered by legal action. So you have some attorneys that are out there on Twitter right now saying that Ken Paxton basically opened this all up and that this would not have happened if not for his letter, which by the way, has now we have the Kansas, Oklahoma, and Utah attorneys general all coming out in support of the Big 12. So everything has been pushed back on Ken Paxton and Texas Tech since that happened. He set something off here. Uh the Big 12 is arguing that allowing Soresby to play could cause reputational harm and irreparable damage to public and member trust in the integrity of league competitions. So you have that. The NCAA today also is trying to hurry up a decision in the first case. Like the reason that we're all here, the temporary injunction granted to Brendan Soresby, right? They're asking for an expedited appeal with a deadline of August 28th before the season. Uh, they're also asking for an emergency motion to stay the temporary injunction, which would basically flip that. So the NCAA is trying to pull a couple of legal levers here. This is far from over, is the point. All right. This is far from over. And uh Curry, I think he's gonna do a great job of breaking this all down for you, starting with just his reaction to what the Big 12 did today. If you're wondering, like, what could the sanctions be here, too? We got some good reporting from Ross Dellinger on that, who went through all of the paperwork here filed by the Big 12. And it sounds like the Big 12 is talking about financial sanctions and or deeming Texas Tech ineligible for the Big 12 championship game. So, what do you think about what the Big 12 is trying to accomplish here?

SPEAKER_00 3:50

Yeah, it's it's a it's a great chess move in my mind. Uh, I think this is, you know, seeking a declaratory judgment is not something that you often see in this in the civil litigation sphere. Um, typically, everything it everything in the litigation realm is reactive. You mentioned the word preemptive, and that's exactly what it is, that's exactly the strategy they're employing here. They're employing a preemptive strategy. One option for the Big 12 would have been to disregard the the letter that Ken Paxton issued last week and enforce their bylaws as they see fit and then take on the risk of being sued as as laid out in that Ken Paxton letter. The other option, the option that they've choosed they that they've chosen to employ, which I really, really like, is they're saying, okay, before we make a potential misstep, before we issue a sanction against Texas Tech, we're going to seek a federal court determination that we are able to enforce our bylaws as we see fit, as Texas Tech and every other member of the Big 12 has agreed to. And so they're basically trying to preemptively cut an antitrust claim out at the knees before it ever becomes a justiciable controversy controversy. They're trying to say, we're going to get a court to sign off on this preferred approach, and then we're going to sanction Texas Tech, and then they can still try to sue us, but they're going to be then trying to overcome a federal court decision. So it's really a it's a really, really brilliant legal strategy. And again, in the civil in the civil realm, not something that you see employed that often. Um it's not often it's not often something that that really has um that really has utility.

SPEAKER_01 5:31

So more or less like it's it's creating a much higher hurdle for Texas Tech to clear if they were to decide they want to do something against the Big 12 for issuing the punishment.

SPEAKER_00 5:41

Exactly. Exactly. I mean it's it's something that you're look something that you're going to watch play out here. You already see it happening in in real time is is um is the effect of okay, so we already have we have a preliminary injunction already in place in in a Lubbock County state court. Um so you've got one, you've got one element or one one distinct um entity within the overall legal system who's issued an order, okay? State court. Then you've got you've got tech or you've got the Big 12 seeking action in federal court, basically trying to get a federal court to, in a way, I guess, you know, basically, you know, determine that what's been done over here doesn't affect the Big 12's ability to enforce its bylaws. And then you've got the bylaws, you've got a private association, a private entities, organ organizational documents, governing documents, um, which typically have force and effect, regardless of, I mean, I guess separate and distinct from any laws that are out there. And so you've just got this confluence of different, different, I guess, legal implications that exist here, given all, given all the activity that's already taken place. So it's really a pretty, it's really a pretty compelling discourse here. Um, but yes, at the end of the day, what what the Big 12 is trying to do is they're trying to they're trying to get a federal court to bless their their proposed course of action or the preferred course of action before they actually go down that path, so that eventually, whenever the Texas Tech and Ken Paxton or whomever try to sue them, they're gonna have a really, really hard time doing so.

SPEAKER_01 7:18

So speaking of hurdles, how how high of a hurdle is this to clear for the Big 12 in making that case? Like how how likely do you think it is that the Big 12 will succeed with this?

SPEAKER_00 7:28

Yeah, you know, I I I haven't uh I haven't studied, I mean, one, I'm I'm not overly familiar with the Big 12 bylaws, and and I and I haven't studied this this whole case enough to to give you a uh to give you a you know too good of a picture into it. But I guess just knowing knowing the little that I do know and and knowing I guess how these types of of situations typically play out, I would say the Big 12 has the upper hand here. Um again, when you look at the when you look at the legal body that is the Big 12, it is a private membership, it's a private entity, and its bylaws are its governing documents that all 16 of its members agree to abide by um and and agree year over year as they're reinforced that that they are enforceable. And so despite the fact that that that Texas Tech was able to go out and get a preliminary injunction from a Levett County judge, the fact of the matter still remains that Texas Tech, the institution, has agreed to the enforceability and to the terms of the of the Big 12's bylaws. So I think regardless of regardless of this declaratory action that's being sought by the Big 12, I think the Big 12 is is is generally always going to be able to enforce its own bylaws, the bylaws that its members agree to. So I think the Big 12 has an upper hand. Um again, I think it's a brilliant strategy, assuming they can get a that they can get a fairly quick decision. Um now here's the I guess the timing of this is really the next interesting piece is and and and the declaratory judgment piece, um typically that type of action would play out a little bit slower than we saw with the injunction case, and that we'll probably see with the NCAA's appeal on on the injunction matter. So if the idea is the sanction may be monetary, well, you can penalize Texas Tech two years from now, monetarily, for whatever they did in 2026. But if one of the courses of action is preventing them from playing in the Big 12 championship, then this matter has to run its course in the next six months. Um, and and so, you know, you've so that's why you see the Big 12 also seeking preliminary injunction, trying to get a court to enjoin, to enjoin the state of Texas, essentially, or Texas Tech University from suing them for antitrust, among other things. Um, so it's really just a it's a it's a really interesting uh set of legal issues here, especially when you factor in the timing component of this. That is, football season starts in about two months. Week zero is just over two months away, and the Big 12 championship game is now less than six months away. And now we've got the NCAA and the Big 12 both trying to effectively invalidate or put themselves in a position to invalidate the injunction that we saw from the Leather County court recently.

SPEAKER_01 10:11

Yeah, well, you you hit on something there that I mean I think is like one of the obvious questions here that a lot of people are asking. And I mean, you basically said, Yeah, the Big 12 should be able to enforce its own bylaws. That's what I that's the crazy part to me. Not, I mean, I know nothing about the legal system, but I'm like, it's the Big 12's like a corporation, Texas Tech has signed on and agreed to this. Like, what how how is there I you know, I mean, Ken Paxton, I know is like trying to get re-elected, so I thought maybe some of this is just a little bit performative from him trying to stick up for a local school, but like, how is there a legitimate case that the Big 12 would not be able to enforce its own bylaws?

SPEAKER_00 10:44

Yeah, I mean it and and and you've seen this, you've seen this play out in the in the in the context of the NCAA and its bylaws in the last, let's call it five years. Um, you've seen the NCAA, you know, obviously NIL, the NIL laws changed, NIL became permissible just about five years ago on July 1st of 2021, and and the NCAA put out a few very, you know, uh, I guess, you know, detail lacking rules uh in relation to NIL. And then what you saw was you saw a bunch of states across the country pass their own state laws that that maybe elaborated on or expanded upon the rights that were that were conferred to the athletes from the individual limited NCAA rule. So then there you saw there you saw the compete, I guess the the competition between you know what what takes precedent, what has more legal effects, state law or or individual association bylaw. Here we don't really have that piece. Here we don't have the piece of, I mean we have the injunction, yes, but we don't have a federal or a state law that that requires that, that basically that contradicts the Big 12 bylaws and that says that hey, the Tex, you know, state Texas, state of Texas, Texas law says that the that sanctions are not permissible by the Big 12 in this case. So you don't have this, this, you don't, you don't have this come, you know, this competition of of applicable laws or or regulations here. So that's why I feel like the Big 12 has a has a true upper hand because they are they're they're not trying to enforce their bylaws against a state or a federal law, they're trying to enforce their bylaws and also prevent a a anti- an antitrust lawsuit from the state of Texas. Um, so it's a lit, it's it's just a unique scenario here and one that we've seen play out in a different respect over the last five years. But because there's not the the dynamic of two competing laws here from different jurisdictions or different levels, um, I don't think you're gonna see the same issues that we saw play out time and time again with the NIO rules.

SPEAKER_01 12:47

Yeah, yeah. Okay, that totally makes sense. Um so the NCAA today, I mean, it's not Texas Tex uh kind of dealing with multiple things now, or at least Brendan Sorsby is, but the NCAA filed an emergency motion to stay the temporary injunction that was granted last Monday that started all this. They also filed a motion seeking an expedited appeal with the Court of Appeals for the 7th District of Texas, and their deadline requested for that is August 28th, which, you know, to your point is obviously right before football season. So how likely is this to work? Because we had seen like the trial date was gonna be February 8th for all of this stuff after the temporary injunction. That's the whole crux of this issue, right? It's not like the the judge said, oh, Brandon Soresby wins this. It was more like, hey, this is worthy of what we got to hear him out, and then the legal process timing of it is the problem. How how likely is it that the NCAA can actually like does the court care? I guess it's like, does the legal system care about the timeline based on the football season here and the broad-reaching implications that that could have across college sports?

SPEAKER_00 13:52

Yeah, I I think they absolutely will. Um so typically when you get into the context of injunction, the injunction world, there's typically three levels to it. So you typically at the very top you have it what's called a temporary restraining order. And a temporary restraining order is just what it sounds. It's it's it's a it's a temporary uh order from a court that says, hey, so-and-so, stop doing that, or you're not permitted to do XYZ. And that that period, that that temporary restraining order period is generally very, very brief. It's a period of usually a couple of weeks or maybe a month, um, where where you're where so where a where a where an interim order is put in place until you get to the point of the preliminary injunction hearing. And then the preliminary preliminary injunction hearing is a more elaborate hearing on the merits where you're looking at the issue um on a larger scale and trying to make a a more permanent decision, though not completely permanent. Then you go down the path further to the final step, was which is permanent injunction. That's a final decision from the court. And so typically it's it's a it's a pretty elaborate, pretty detailed process. Um, but it in this case, the the interesting part is you've got the preliminary injunction. Again, it's preliminary, it's only in effect until the court rules on the permanent injunction. But with the permanent injunction hearing date being set for February 8th, the the merits of the case will become completely moot by the time you get to that point. And so I think with the interests, uh, I guess with with the with the interest of of the the legal issues in the case, I I think it would be really hard for a court to to look past that and say, no, we're busy, we're backloaded, so we're gonna kick you out to next February. They're going to understand completely, and it's gonna be well briefed by the NCAA and other parties, that they have to have this herd before he plays a football game, because the minute you let him play a game or the season, then you basically make you basically make the court's decision for themselves. Because otherwise you're gonna get to next February, and chances are they're probably both both sides are probably gonna just drop the matter because again, the matter will be loot at that point. So I I think that there's probably a pretty good chance that that that they're able to speed the timeline up. I guess I'd be I'd be curious if they're able to get us to get a a stay on the injunction from the appellate court. That would obviously a big be a big development. Um and then that would flip the chips. That would give the ins that would give the NCAA and the Big 12 if you want to, if you want to throw them in there, it would give them the chips and the ability to say, hey, now what? Now you know what? We're good on timing. If you're gonna stay, if you're gonna stay this this injunction, we'll we'll take we'll let this thing drag out because at that point that the the injunction would would basically be um would be off the table. So it's it's just a lot of, as you can see, it's a lot of legal chess. Um you've got a lot of different, you've got a lot of different really, really strong lawyers playing chess against one another. Um, and so I I you know, I think, you know, we're in a group chat, John, and I think last week when the when the order came out, the reaction was, oh no, you know, this is what it is, this is definitive. And my initial reaction was, you know, hey, this is not the end of the road. Because it, a a preliminary injunction is never the is not is usually not the end of the road. And B, I knew that it wasn't going to be something that people were just going to accept, right? For obvious reasons. The legal precedent that this would set if Brendan Sworesby was able to play all or most of the season is would be something that would be more damaging than any other ruling or any other law change we've seen in relation to the NCAA in this century. Um, we've already seen the effects of it with the Tristan Smith ruling um in Clemson. Obviously, not the same set of circumstances, but the Brendan Sworesby injunction order being real being relied on by the judge who granted Tristan Smith an additional year. So we uh so it's just it's something that that obviously there's still a lot of runway here. This is something that we're gonna see play out over the next few months before we get to a point where I where something more final is is is decided.

SPEAKER_01 17:53

Well, that and that's part of where I'm like, you know, the time it just seems like there's like endless uh lawsuits, right? And endless appeals. Like what so even if this gets expedited and the NCAA were to win, like is there then can Texas Tech then appeal this and we're it's still up in the air? Like at what point does the the Merry-Go round finally end on this?

SPEAKER_00 18:16

Yeah, so it's it's um the merry-go-round will end uh in my mind when the season ends. Because again, you're you're the issue's gonna be moot. Now, there could be damages lawsuits that spawn from this where Brendan Soresby is is is suing somebody for damages, saying that they impacted his ability to earn money, they affected his draft stock, whatever it may be. So I guess the the related lawsuits that may spawn from this may go on for for years. Um, but I think that this matter will largely be resolved in the next three or four months. Um, definitely the next six months, because you're going to see again, if you get a if an appellate court, if if an appellate court stays that injunction, that's gonna that's gonna shift the momentum completely to the other side. And then and then that changes, I guess, the the the chess, you know, the chess game. Then you've got this this request for it for an expedited hearing schedule that the NCAA also included in their filings today. If you get that sped up, then you know you're gonna have something more definitive soon. And then of course you've got this this unrelated or this related but separate matter with the with the Big 12 um at the federal court level. So something is gonna shake out at some point. And it may very well be that that the that that Texas Tech makes the decision that that that trying to get Brennan Sorsby on the field is not worth it. It's not worth the legal battle, it's not worth the public, you know, the public narrative battle. It's not worth the distraction from the team, and it's not worth everything that may come with that. So so that's the that's the way I view it in the next six months. And then sure, absolutely everything can be appealed in perpetuity, right? You're seeing it right now. You've got the preliminary injunction is a is a it's a it's an interim order. It is not a it is not a final court order. That would be the permanent injunction. So what you're seeing now is an interlocutory appeal, is what that's called, is when you seek an appeal to an appellate court during the proceedings of a of a trial court case, of a district court case, you get a final decision at the permanent level, at the permanent injunction hearing level, that can be appealed. And then typically there's another appellate court beyond that, if not one more beyond that, with the United States Supreme Court. So it's just it's it's so so the amount of time that this case that that that something involving Vernon Sorce be at the NCAA level that these cases could take could be five years. Um, but I think the merits of what the merits of what the Big 12 and the NCAA are seeking today with their file with their separate filings, it will all be resolved with within the next, I would say two to three months, but certainly within the next six months before before the termination of the football season.

SPEAKER_01 20:57

Yeah. Yeah, I mean, I guess the other factor too is we were literally a week today away from the supplemental draft deadline for SORS B2, although I yeah, Ross Dellinger reported today, he may not be able to do that still at this point. That'd be the cleanest thing if he just said, hey, I don't want to deal with this, I'm just gonna go to the supplemental draft. But that's where, you know, I one more question, this is more selfish than anything, Curry, because this is kind of going back to the original uh case here in the temporary injunction. But a part of that ruling was the irreparable harm that it would cause Brendan Soresby. And like, again, this is where I can't wrap my brain around the legalities of this versus just like common sense. And common sense is like, well, yeah, like you did something, actions have consequences, right? Like, of course it's doing some irreparable damage to you because you crossed a line that you signed up to say that you wouldn't cross. Like, how how is it that that actually comes into play in a case like this where it's like, I mean, yeah, this will probably be a false equivalent, but I'm like, uh, yeah, I got a DO. That's going to do some irreparable damage to my life, right? Like you you did the crime, so there's going to be some consequences that come from that.

SPEAKER_00 22:07

Yeah, and I admittedly I've not studied the underlying action where where Brendan Sorsby was able to get the injunction. So I'm not I'm not familiar with his the merits of his underlying claim that that that that resulted in the preliminary injunction, but we were talking about this off the air. Generally, when you when you're looking at an injunction, you're looking at a number of different factors. It's typically, you know, whoever's bringing the claim has to prove, and whoever's defending the claim has to prove likelihood of success on the merits. If you're seeking an injunction, you have to say whatever the merits of my claim are, it's likely that if we go to trial, permanent injunction hearing, that I'm going to succeed. And then it's irreparable harm. You have to prove that you will be irreparably harmed if if you don't get the result that you're seeking. Then it's it's bad, you balance the hardships of both parties. And then it's the it's the public, you weigh public interest. And so with all of that in mind, again, not knowing the merits of whatever Brendan Soresby, you know, whatever his legal action or legal legal basis was for seeking the injunction, I I just can't fathom how how a judge was able to rule in good faith that that he was going that that a that an injunction was appropriate because Brendan Soresby was going to be irreparably harmed. I mean, you want to talk about irreparable harm. We know the NCAA has been gutted in the last 10 or 15 years with all the with all the lawsuits that have been filed against them and that they've lost or settled, along with, again, all the state laws that I referenced earlier, you know, efforts at the federal level, all of those things. Think about the irreparable harm that would be done to the NCAA if all of a sudden one of the law one of the one of the firmest and most long-standing prohibitions is that you can't gamble on on you can't bet on sports, especially not uh bet on a team that you play for, um, if that gets eroded because of this case. I mean, to me, that's irreparable harm. And then you think about the the hardships again. You think about the hardship, sure. You could you can look at Brennan Hart Brennan Sorseby and say, you know, he's a victim. He's you know, the hardship that would that he would endure here, he would lose his last year of eligibility, he would likely lose his NIO money and affect his draft stock. But again, look at the NCAA on the flip side. All of a sudden, the the hardship is now now kids are able to gamble on on gamble on college athletics and then gamble on teams that they play for. And oh, now we're now we're able to, you know, now again, I mentioned the Tristan Smith case earlier. Now we have legal precedent that all these that all these you know bloodthirsty attorneys are going to rely on to further erode any sort of legal authority that the NCAA has anymore. And again, public interest. You go back, you know, public interest. What is public interest? Well, it's it's it's I I think in some ways it's integrity of college athletics or integrity of life in general. Well, you you pretty well forego integrity if you say a guy can bet as as much as he did and as much as he did on his own teams, and then say, but we're gonna give it, we're gonna let him play. He's the real victim here. Um, so I guess just looking just again, not not understanding the merits of Soresby's underlying claim that led to the injunction. I can't, I can't fathom how an injunction was granted in this case. Um, again, we talked about this off air, but Pete Rose, you know, I mean Pete Rose kind of sets the standard, right? Best hitter, best hitter in the in the history of professional baseball and and engaged in similar activity and and was was blackballed from the sport completely. Um and and so I just I can't I can't imagine a world in in which this is this is this is validated in some form or fashion, especially when you look at what happened to Hunter Deckers and the Iowa State football players just a couple years ago, with with in most cases less egregious activity than what we saw here. Um, so I I just I can't, you know, I'm I'm a as a former athlete, I am a champion of of athletes. Obviously, I ran K-State's NIL program for the last several years. Um, so I'm usually a fan of of what's best for the student athletes. I am a fan of what's best for the student athletes, but I don't think it's a it's it's it's best for student athletes if Brendan Soresby win that he did he prevail in this case.

SPEAKER_01 26:13

Yeah, long term worse for everybody, you know, potentially.

SPEAKER_00 26:16

Absolutely. Yeah.

SPEAKER_01 26:18

Uh Curry, appreciate the insight as always, my friend. Thanks for doing this. And uh I would say we'll do it again soon, which is probably true because we have legal cases like every every day in college athletics now.

SPEAKER_00 26:28

So I think no shortage of no shortage of uh fireworks in the Big 12 these days. So I guess we'll I guess we'll take the the bad pub with the good.

SPEAKER_01 26:36

Yeah, yep.