Sorsby Hires Kessler: Breaking Down QB’s NCAA Eligibility Push

Kessler is as familiar with antitrust arguments against the NCAA as any sports litigator in America. He has led multiple antitrust lawsuits against the NCAA over the last decade, including his 9-0 victory at the U.S. Supreme Court in NCAA v. Alston and engineering the House settlement. His expertise in sports law, antitrust law, labor law and intellectual property law has also been gained through involvement in other major litigations, including his representation of Michael Jordan and 23XI Racing in their recent case against NASCAR and his representation of Tom Brady and the NFLPA in the Deflategate case against the NFL.

It should be noted that Sorsby retaining Kessler doesn’t automatically mean he will sue, especially since the QB’s NCAA eligibility following his medical leave is undetermined at this time. Legal controversies are often resolved without litigation, and sometimes the threat of litigation alone can produce change.

Recall, as Sportico exclusively reported in January 2025, that the Youngstown Phantoms and another team from the United States Hockey League hired Kessler in the wake of the NCAA making Canadian Hockey League players eligible. There were potential antitrust arguments regarding the denial of compensation for USHL players given that no-pay rules were no longer needed to maintain players’ NCAA eligibility. The USHL later changed compensation rules.

Legal Difficulty for College Athletes Challenging Betting Rules

On the surface, Sorsby and Kessler would face hurdles in challenging NCAA eligibility rules related to gambling.

NCAA bylaws, like rules used by other sports associations, prohibit wagering, especially on one’s own team. The NCAA considers sports betting to be unethical conduct; its athletes can’t place, accept or solicit a wager “on any intercollegiate, amateur or professional team or contest.”

The NCAA also has disciplinary policies for engaging in unethical conduct and potential appeals of discipline. Penalties range from attending required sports wagering rules education to a permanent loss of eligibility. The severity of the punishment is based on dollar amounts wagered, whether the athlete bet on their own sport and whether the bet impacted games.

Any NCAA rule restricting athletes’ eligibility and their opportunity for compensation, such as NIL or revenue share, is vulnerable to antitrust challenge. This is true for three basic reasons.

First, the NCAA is regarded as having monopsony power as the overseer of conferences and colleges that buy the labor and marketing services of college athletes. Monopsony power is like monopoly power, except it involves the buying of services—here, athletes’ services—whereas monopolies involve a seller. While there are other national athletic associations for college sports, none rivals the NCAA in terms of market control and attracting the best athletes.

Second, colleges and conferences are competing businesses that use NCAA rules to limit how each can compete for college athletes’ services. Think of all the ways colleges compete for resources, such as students, faculty, staff, fundraising and marketing. When colleges agree to not compete, or limit how they compete, for athletes’ services, athletes are denied a more competitive market in which to sell those services. In a world where colleges could pay top recruits any amount of money they wish, some college athletes would earn more money as schools make competing offers to them.

Third, unlike professional athletes in the major pro leagues, college athletes aren’t in a union. That means rules governing college athletes’ eligibility, compensation and other aspects of labor are not collectively bargained and thus can’t rely on the non-statutory labor exemption.

This exemption reflects a series of U.S. Supreme Court decisions that incentivize management to bargain with unions by exempting their agreed-upon rules for wages, hours and other working conditions from antitrust scrutiny.

Forming a union requires recognition of employment, among other benchmarks. While it’s conceivable that college athletes will eventually be recognized as employees and some might then unionize, the complicated process is unlikely to happen while Sorsby is a college athlete.

Antitrust scrutiny tends to favor the defendant—data shows defendants in antitrust cases win more than 90% of the time. Defendants that show their restrictions are reasonable tend to win.

While NCAA anti-gambling rules are vulnerable to antitrust scrutiny, that doesn’t mean the rules will fail that security. Additionally, the NCAA has lost antitrust cases where its rules seem unreasonable.

Ed O’Bannon won because it was unreasonable that college athletes not only couldn’t be paid for their likenesses to appear in video games, but also that those athletes’ likenesses were used in video games without their consent or payment.

Shawne Alston won because it was unreasonable that while the NCAA promotes education, NCAA rules denied athletes the chance to receive reimbursement for education-related expenses.

Grant House negotiated an industry-altering settlement because it was unreasonable that athletes can’t receive a share of revenue from schools that would share.

Diego Pavia won his antitrust eligibility case by arguing it was unfair for the NCAA to count his JUCO seasons as equivalent to Division I seasons.

Rules against sports betting are a different creature.

There isn’t much daylight between the NCAA and pro leagues on this topic. None of them allow athletes to bet on their teams’ games or other games in their league.

There are obvious reasons for prohibiting that type of wagering. It undermines the integrity of the sport and opens the door to athletes being influenced, if not pressured, by gamblers, bookies and others in their orbit. Those seem like reasonable reasons to prohibit wagering and to discipline athletes who wager.

It could be argued that leagues are hypocritical when it comes to sports betting. As detailed in Sage & Thompson v. DraftKings et al., where two men are suing sports betting companies and the NFL for allegedly causing them to suffer from severe gambling addictions, leagues have partnered with gambling companies to generate new sources of revenue for owners and players. So, on one hand, they prohibit betting but on the other earn money from it.

That argument, however, is less persuasive with the NCAA. The association recently sued DraftKings for its marketing during March Madness. NCAA president Charlie Baker is an outspoken critic of sports betting and has denounced the online harassment college athletes face from bettors.

As Sportico’s Eben Novy-Williams revealed last year, the NCAA has agreed to sell data from its championship events in a partnership with Genius Sports, though the NCAA has said its data will only be available to sportsbooks “if they remove risky bets from their platforms” and fully comply with NCAA investigations.

The More Viable Path of Challenging

Instead of challenging NCAA sports wagering rules, Sorsby and Kessler might challenge how those rules are applied.

This line of attack was successfully employed by Tom Mars and other attorneys for Ole Miss quarterback Trinidad Chambliss, but it came up short in analogous cases brought by UVA quarterback Chandler Morris and Virginia Tech softball player Bre Warren.

If the NCAA denies Sorsby his eligibility, the QB could argue he is a third-party beneficiary of the contractual relationship between Texas Tech and the NCAA. He would then assert the NCAA harmed him by how it reviewed and applied sports wagering rules in assessing his eligibility and that, as a result, the NCAA breached implied covenants of good faith and fair dealing, which require fair and honest treatment. If Sorsby can find examples of the NCAA treating similarly situated college athletes more favorably than him, he would have a more persuasive argument of unfair treatment.

Chambliss and Morris argued the NCAA fumbled how it reviewed medical evidence regarding their capacity to play during seasons in which they suffered injuries, while Warren maintained the NCAA failed to sufficiently consider her mental health in reviewing her eligibility.

In that same spirit, Sorsby might maintain that discipline of college athletes for wagering is unfair if those athletes are gambling addicts. Addiction is a health issue, though the Americans with Disabilities Act notably excludes compulsive gambling as a covered disability.

The NCAA would likely raise several defenses.

In addition to stressing the importance of anti-betting rules to protect the integrity of sports and protect athletes from potential abuses, the NCAA would maintain that college athletes, unlike their schools, aren’t parties to the NCAA D-I Manual and thus lack standing over that contractual relationship. College athletes are participants in college sports through their enrollment at a college as students, and their opportunity to play college sports is conditioned on, among other things, following NCAA rules.

NFL Supplemental Draft Option and Its Hurdles

Sorsby could also leave college and petition the NFL for eligibility in the supplemental draft. Sorsby, 22, meets the NFL’s basic eligibility requirement that more than three years have passed since he graduated from high school, though he does not have a right to sign with an NFL team at this time because, as explained in Article 6 of the NFL’s collective bargaining agreement, no player is eligible for employment with an NFL team until he has been eligible for selection in an NFL draft.

Enter the supplemental draft, which the NFL hasn’t held since 2023. The NFL has discretion to hold a supplemental draft for players who were not eligible for the annual draft, but who became eligible after the college draft. An NFL team that selects a player in the supplemental draft forfeits a choice in the same round in the following year’s college draft.

Whether Sorsby will petition the NFL to hold a supplemental draft this summer and whether the NFL would agree are unknowns. It stands to reason that his gambling addiction is a key factor in that decision-making. The NFL would likely want assurances that his addiction has been adequately treated, and that he is not a risk to engage in the same activity in the NFL. The league has a long history with players betting, going back to Baltimore Colts quarterback Art Schlichter betting on NFL games during the 1982 season.

One thing is for sure: Sorsby’s familiarity with legal rights and litigation strategies is likely to increase with Kessler by his side.

Who knows, maybe Sorsby will attend law school one day.

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