By Christopher R. Deubert, Senior Writer
On June 23, the NFL informed college quarterback Brendan Sorsby that it would not be holding a Supplemental Draft this summer. Sorsby had requested entry into the Supplemental Draft after his collegiate eligibility became the subject of multiple lawsuits due to his prior sports betting activity. Sorsby’s legal team has insinuated that he will now pursue action through the NFL-NFLPA collective bargaining agreement (CBA). That is highly questionable – as are Sorsby’s other legal options.
To stay or not to stay?
Sorsby transferred to Texas Tech in January 2026 from the University of Cincinnati, after having started his collegiate career at Indiana in 2022. In the spring of this year, the NCAA ruled Sorsby ineligible “after it discovered he had wagered approximately $90,000 on professional and college sports over four years, including 40 bets involving Indiana football when he was a freshman with the Hoosiers in 2022.”
Sorsby then initiated an action in Texas state court, seeking an injunction against the NCAA’s enforcement of its decision.
On June 8, 2026, the court granted Sorsby’s motion, finding that he would “suffer a probable, imminent and irreparable injury” if he were not permitted to play for Texas Tech during the 2026 football season.
The court enjoined the NCAA from prohibiting Sorsby from practicing or playing for Texas Tech but required that Sorsby miss the first two games and seek counseling for gambling addiction.
The court’s decision set off a flurry of outrage, as the NCAA and many of its member institutions considered Sorsby’s actions to have crossed a clear red line. The Big 12, the conference in which Texas Tech plays, filed a lawsuit in federal court seeking to clarify its authority over Texas Tech while also considering whether to bar schools from competing against Texas Tech in any sport.
Rather than face the growing legal storm, Sorsby withdrew his lawsuit against the NCAA and instead applied for the NFL’s Supplemental Draft.
The NFL’s defensive stand
The NFL Draft is a spectacle each April in which each teams select eligible players through seven rounds. The rules of the Draft and the compensation to be offered to the selected players is set forth in the NFL-NFLPA CBA.
Additionally, the CBA provides that the NFL “may” hold a Supplemental Draft if “the NFL deems it appropriate.” The CBA also provides that “[i]f a player who was not eligible for the Draft in any League Year becomes eligible after the date of the Draft, he will be eligible to be selected in a Supplemental Draft, if the League elects to conduct such a Draft.”
No player has been selected in a Supplemental Draft since 2019 and Sorsby was the only player who applied for a possible 2026 version.
In a June 23 letter, the NFL informed Sorsby that it would not be conducting a 2026 Supplemental Draft. Without specifically saying that its basis for not holding a Supplemental Draft was Sorsby’s college eligibility issues, the NFL expressed concern about his “sustained pattern of improper gambling activity during [his] collegiate career at three different universities.” The league characterized Sorsby as having “knowingly engaged in repeated and significant violations of NCAA rules designed to preserve the integrity of athletic competition.”
The league further faulted Sorsby for not addressing these matters in his petition, nor “demonstrat[ing] accountability for [his] conduct or indicat[ing] whether, or how, [he] would adhere to the League’s rules and policies governing the integrity of competition.”
In closing, the NFL “encourage[d] Sorsby to focus on preparing for possible entry into the NFL through the 2027 Annual Draft.”
Sorsby with the ball
The NFL’s response places Sorsby with uncertain legal options.
According to ESPN, Jeffrey Kessler, attorney for both Sorsby and the NFLPA, claims that the NFL’s decision was “a violation of the CBA and the law” and that Sorsby would pursue the matter with the NFLPA.
Kessler perhaps is thinking that Sorsby can pursue a System Arbitration under the CBA, through which the NFLPA and its player-members can challenge conduct by the NFL and its clubs that is principally directed toward restraining player pay and mobility, e.g., the Draft, free agency, salary, and salary cap rules.
Yet, the NFLPA does not seem to have standing to initiate such an arbitration. The preamble to the CBA sets forth the members of the NFLPA bargaining unit in accordance with the National Labor Relations Act, including (1) players currently signed to a club; (2) former players seeking employment with a club; (3) rookies once drafted; and (4) undrafted players once they commence negotiations with an NFL club.
Sorsby does not fit into any of these categories. As a result, it does not appear that Sorsby (or the NFLPA on his behalf) has any recourse under the CBA.
Sorsby’s next option would be to file an antitrust lawsuit against the NFL and its 32 clubs, alleging that they have violated Section 1 of the Sherman Antitrust Act by collectively blacklisting him (a group boycott in antitrust parlance).
There is important precedent on this issue. In 1950, lineman Bill Radovich sued the NFL when it blacklisted him after Radovich left the Detroit Lions of the NFL for the Los Angeles Dons of the All-America Conference to be closer to his ill father. After the lower courts rejected Radovich’s claims, the Supreme Court reversed in a 1957 decision, holding that that the NFL, unlike baseball, was not exempt from antitrust law and had to respond to Radovich’s allegations on the merits.
However, such a claim by Sorsby should easily be defeated, as the NFL’s Supplemental Draft is almost certainly protected from antitrust challenge by the non-statutory labor exemption. Generally speaking, the non-statutory labor exemption protects the concerted activity of teams which restrains the player labor market so long as the restraints are collectively bargained with the players union (Radovich’s blacklisting predated the NFLPA).
As discussed above, the Supplemental Draft is a part of the parties’ CBA and thus is certainly entitled to immunity under the non-statutory labor exemption, even though Sorsby is not yet a part of the bargaining unit.
Indeed, in a 2004 decision, the Second Circuit held that the NFL’s regular Draft was entitled to the protections of the non-statutory labor exemption from challenge by former Ohio State running back Maurice Clarett, even though the Draft was not explicitly included in the CBA at that time.
Lastly, perhaps Sorsby could try to allege that he is being discriminated against on the basis of a disability (gambling addiction). Article 49 of the CBA explicitly prohibits discrimination “because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.” While disability is not mentioned, it would still be protected by state and federal law. Whether Sorsby could present a viable claim is a whole other question beyond the scope of this article.
See you next year
Sorsby has given up on playing college football in 2026 and does not seem to have a viable path to playing in the NFL this year either, despite what the brilliant Kessler has said. His time pursuing antitrust grievances or litigation seems likely to be better spent preparing for the 2027 Draft.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
