Introduction

“The filings represent a dramatic escalation in a dispute that has become one of the most consequential eligibility cases in recent college sports history.” — Fox 4, KDFW.

In the realm of intellectual property (IP) disputes, declaratory judgment actions frequently result from express threats by IP owners to file an infringement lawsuit against the threat recipient. One can broadly characterize them as a “preemptive strike” authorized by the federal Declaratory Judgment Act (as well as by analogous state laws patterned after that Act). Generally, declaratory judgment actions are only supportable when the IP owner issues a communication (or exhibits conduct) that can be reasonably interpreted by the recipient as an imminent threat.

A complaintfiled by The Big 12 Conference, Inc. (“The Big 12”) on June 14 in the U.S. District Court for the Northern District of Texas clearly demonstrates how the Declaratory Judgment Act affects more than just IP disputes. It also vividly demonstrates how an express threat can provide the basis for a declaratory judgment complaint.

Yet the legal action may now be all for naught, because a June 15 development at least raises a valid question as to whether the Big 12’s complaint has already been mooted, providing another teaching point concerning declaratory judgment lawsuits.

Declaratory Judgment Principles

“A declaratory action allows a party ‘who is reasonably at legal risk because of an unresolved dispute, to obtain judicial resolution of that dispute without having to await the commencement of legal action by the other side.’” Electronics for Imaging, Inc. v. Coyle (Fed. Cir. 2005) (citation omitted). In relevant part, the Declaratory Judgement Act provides, at 28 U.S.C. § 2201(a):

In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

“Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co. (1995). The U.S. Court of Appeals for the Federal Circuit instructs:

Accordingly, in determining whether a justiciable controversy is present, the analysis must be calibrated to the particular facts of each case, with the fundamental inquiry being “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Matthews Int’l Corp. v. Biosafe Eng’g, LLC (Fed. Cir. 2012) (quoting MedImmune, Inc. v. Genentech, Inc. (2007) (footnote omitted)). MedImmune arrived at the Supreme Court as a patent license dispute, but declaratory judgment actions in IP cases can also involve trademarks (see Already, LLC v. Nike, Inc. (2013)) and copyrights (see Klinger v. Conan Doyle Estate, Ltd. (7th Cir. 2014)).

Importantly, the foregoing MedImmune case-or-controversy requirements must be met not only at the time the declaratory judgment complaint is filed, but also “throughout the course of the lawsuit.” Mitek Sys. v. United Servs. Auto. Ass’n (Fed. Cir. 2022) (emphasis added).

Additionally, declaratory judgment actions can be brought in state courts, such as superior courts in Georgia, where the forum state has adopted the Uniform Declaratory Judgment Act.

Underlying Facts Alleged in The Big 12’s Complaint

The Big 12’s Governance Structure and Bylaws; Earlier Sanctions Imposed on Baylor U. with TTU’s Approval

The Big 12 was organized in June 1995 as a nonprofit organization to, among other things, “control and regulate intercollegiate athletics as institutional activities.” The Big 12’s Bylaws include a provision approved by its Board of Directors in May 2013, namely, Bylaw 3.6, which confers upon a Supermajority of Disinterested Directors the authority to sanction a Member Institution upon certain findings, provided that an institution is given reasonable notice and an opportunity to be heard before a vote occurs. One of those findings includes a determination by the Supermajority that a Member Institution “engaged in any action or course of conduct materially adverse to the best interests of the Conference taken as a whole.”  Other relevant Bylaws include:

• Bylaw 1.3.2, under which “[a]ll Big 12 members agree . . . to fully comply with ‘NCAA rules and policies’ and all ‘rules and regulations of the NCAA and of the Conference.”
• Bylaw 7.4, which “authorizes the Conference Commissioner to sanction Member Institutions when an ineligible student-athlete participates in Conference competitions where there is “an egregious violation of a Conference Rule” or “a violation of an NCAA rule involving institutional culpability that is not subject to the jurisdiction of the NCAA Committee on infractions.”

“As a founding member of the Conference,” the Complaint states at ¶ 30, “Defendant TTU [Texas Tech University] not only agreed to this governance structure and sanction authority, . . . TTU helped set it up and has repeatedly voted in favor of this authority and in favor of requiring all members abide by it.”

As an example of TTU’s agreement to The Big 12’s governance and sanctioning authority, the Complaint discusses a 2016-17 investigation of a series of sexual assaults that had occurred at Baylor University. The investigation resulted in a $14 million penalty imposed upon Baylor, a penalty that “TTU participated in and supported,” according to ¶ 34 of the Complaint. A couple of paragraphs later, the Complaint concludes: “The Baylor sanctions demonstrate that the Conference has previously exercised precisely the type of sanction authority it now seeks to invoke, and that TTU itself voted to authorize and impose those very sanctions without objection.”

Allegations Regarding Brendan Sorsby and His Record of Gambling

Brendan Sorsby transferred to Texas Tech in January of 2026 after having played quarterback for the University of Cincinnati and Indiana University. In the Lubbock County Litigation discussed below, Sorsby admitted that he:

• While at Indiana, placed at least 2,900 bets totaling more than $30,000, including “at least 40 wagers on Indiana University’s football or the performance of individual Indiana University football players (his teammates)”;
• While at Cincinnati, “provided more than $60,000 to another individual to deposit in a FanDuel account registered to someone else, which was accessed and shared by Sorsby and another person to place bets.”
• After transferring to TTU, sent “approximately $5,000 by Venmo or Zelle to another person, who when used the money to place bets on Sorsby’s behalf through Underdog, PrizePicks, or Chalkboard.”

The Complaint alleges that Sorsby’s admitted activities violated the laws of Indiana, Ohio, and Texas. “Notably,” states ¶ 55 of the Complaint, “Attorney General Paxton’s own Opinion KP-0057 takes the position that Texas’s gambling prohibitions apply even to paid fantasy-sports and prediction-style contests.”

The Lubbock County Litigation

On May 18, Sorsby filed a lawsuit against the NCAA in the 99th Judicial District Court of Lubbock County, Texas (“the Lubbock County Litigation”). Sorsby’s complaint asked the Court to grant Sorsby an injunction against the NCAA that would allow him to “participate fully” as a TTU player for the 2026 season. Sorsby’s complaint did not list The Big 12 as a party to that lawsuit.

On June 8, the 99th Judicial District Court, by Judge Ken Curry, entered a Temporary Restraining Order (TRO) against the NCAA, enjoining the NCAA from prohibiting Sorsby’s participation in TTU’s 2026 football season. The same day, the NCAA filed a Notice of Appeal, indicating it would be lodging an “accelerated” appeal with the Court of Appeals for the Seventh District of Texas, located in Amarillo.

On June 15 (just one day after The Big 12 filed its Complaint), the NCAA filed its appeal, asking the Court of Appeals to stay the district court’s TRO. The NCAA’s filing criticized Judge Curry’s ruling, stating that it, among other things, “sweeps beyond anything Texas law permits” and “undermines the integrity of college sports.”

The Big 12’s Complaint stresses that the Lubbock County Litigation will not have a bearing on its present case, stating that The Big 12 is not asking the Court to make any determinations concerning Sorsby’s eligibility and that it instead seeks affirmation of The Big 12’s authority to enforce its own Bylaws. “If all of the NCAA eligibility rules went away,” states ¶ 62 of the Complaint, “the Conference would still have independent authority under its own Bylaws to regulate Member Institutions . . . . This is the Conference’s own contractual authority, governed by the Conference’s own bylaws, and it exists wholly apart from anything the Lubbock County court has addressed or could address.”

Pre-Lawsuit Communications Between TTU and The Big 12; Fallout from TTU’s Decision

According to the Complaint, The Big 12 and representatives of several member institutions had asked TTU “not to field Sorsby in Conference competitions.” Instead of agreeing those requests, “TTU communicated its intent directly to the Conference to field Sorsby in Conference football games.”

Given this situation, The Big 12’s Board of Directors have sought to hold a vote on whether the Board should impose sanctions on TTU, to include “monetary sanctions and/or a ban on competing in the Big 12 Championship Game.” However, alleges the Complaint, no such vote has yet occurred because of the “specific threat” it received from Ken Paxton, the current Texas Attorney General. The subsection below provides the details of this threat.

Fallout from TTU’s decision to play Sorsby, as well as Judge Curry’s granting of the TRO, has been swift and significant. As stated in an article by the Atlanta Journal-Constitution: “That ruling has outraged many in the multibillon-dollar world of collegiate athletics, including in Georgia, one of the few remaining states where sports betting remains outlawed.” The University of Georgia (UGA), according to that article, “has been among the loudest critics” and announced its intention “to boycott scheduling [TTU] in any sport, a move that has received praise from corners of the collegiate landscape, with some hoping more schools and conferences follow suit.”

Indeed, UGA is not alone. Paragraph 69 of The Big 12’s Complaint states that the University of Nebraska took similar action. On June 15, according to a report from Yahoo, the University of Michigan canceled a scheduled volleyball match against TTU and “plans to hold further discussions with its athletic staff on prohibiting contests against the Red Raiders, similar to Nebraska and Georgia.”

Ken Paxton’s Threatening Letter

As stated on a June 11 post in the Texas Attorney General’s own website: “Attorney General Ken Paxton’s office sent a letter on behalf of its client, Texas Tech University, to leaders of the Big 12 Conference, notifying them that any effort to sanction Texas Tech University for acting consistent with a valid court order would constitute a violation of federal and state law and expose the conference and its members to antitrust liability.”

The June 11 letter to Big 12 representatives (“the Paxton Letter”), signed by attorneys with the Antitrust and General Litigation Divisions of the Office of the Texas Attorney General, announces that they are writing on TTU’s behalf. The Paxton Letter asserts that any attempted enforcement of Bylaw 3.6, in view of Judge Curry’s order, “would be a per se violation of federal and state antitrust laws – a naked horizontal agreement among competitors to disadvantage [TTU] by cutting off access to the resources it needs to compete.” The Paxton Letter then asserts that such attempted enforcement would also constitute “breach of contract and tortious interference.” The letter concludes with a threat that TTU “will pursue all legal avenues to protect its interest and those of [TTU]’s student-athletes.”

Oklahoma AG Encourages The Big 12 to File Suit; Utah and Kansas AGs Weigh In

On June 12, another Attorney General sent a letter to the Big 12 representatives – this time, Gentner Drummond, the Attorney General for the State of Oklahoma (“the Drummond Letter”). In that letter, Drummond indicates awareness of the Paxton Letter and asserts that since Oklahoma State is a Big 12 Member Institution, “my office has direct interest in the integrity of Conference competition.”

The Drummond Letter bluntly states: “The claims asserted in the [Paxton] [L]etter are meritless. The idea that the Big 12 may not sanction the actions of one of its members under an agreed-upon preexisting contract is facially absurd.” Drummond then goes on to explain why, pursuant to case law, “restraints adopted by athletic associations are analyzed under a rule of reason” – not the per se approach asserted in the Paxton Letter.

The Drummond Letter charges that TTU “has acted in a manner adverse to the Big 12 and the integrity of college football as a whole,” deserving the imposition of sanctions under Bylaw 3.6.

Commenting on both letters, ¶ 78 of the Complaint asserts: “The Texas AG has threatened significant and punitive liability if the Conference exercises its governance authority by seeking to disassociate from TTU’s association with and speech about values with which the Conference disagrees. The Oklahoma AG has concluded that the Texas AG’s legal theory is meritless and recommended that the Conference take action against TTU.”

Following the filing of the Complaint, Drummond issued a statement declaring: “I applaud the Big 12’s swift action to defend its authority to enforce its own bylaws,” and “My office will protect Oklahoma’s own stake in the integrity of these contests.”

Attorneys General from two other states have since joined Drummond’s support of The Big 12’s position. On June 15, Utah Attorney General Devin Brown and Governor Spencer J. Cox issued a joint statement expressing interest in the matter due to Member Institutions Brigham Young University and the University of Utah. “We join Attorney General Drummond in recommending that the Big 12 take action against Texas Tech under Bylaw 3.6,” stated Brown and Cox. Additionally, also on June 15, Kansas Attorney General Kris W. Kobach issued a social media post stating: “The Big 12 should not be intimidated by the Texas AG’s Office,” and “The Kansas Attorney General’s Office stands ready to assist the Big 12.”

The Counts and Claims for Relief in The Big 12’s Complaint

The Complaint recites four counts against defendants Paxton, TTU, the Texas Tech University System, TTU Chancellor Brandon Creighton, TTU President Lawrence Schovanec, and TTU Athletic Director Kirby Hocutt (collectively, “the Defendants”). All four counts seek declaratory relief, and two of them also seek injunctive relief, as described in further detail below.

Count I: For Declaratory and Injunctive Relief Based on Violations of the First Amendment – Paragraph 88 of the Complaint asserts that the Defendants “are ‘significantly affect[ing]’ the Conference’s ability to exercise its right to express disagreement with Sorsby’s conduct, to associate with its member institutions to that end, and to disassociate with Sorsby for his conduct.” “The First Amendment,” continues ¶ 88, “does not permit such an attempt by governmental officials to ‘do indirectly what [they are] barred from doing directly.’”

Count II: For Declaratory and Injunctive Relief that Sanctions by The Big 12 Do Not Violate Section 1 of the Sherman Act – The Big 12 asserts that any antitrust claim against it would fail for lack of standing because the Defendants did not suffer “an ‘injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” The alleged harm asserted in the Paxton Letter, states ¶ 99 of the Complaint, is not antitrust harm but instead “harm to one school that has determined to jettison concerns about Texas state law and its own code of conduct, among many other moral and legal standards.” The standing issue aside, the Complaint echoes the Drummond Letter’s conclusion that a “rule of reason” applies in this case, and that this rule permits The Big 12 to enforce its Bylaws: “The Big 12 sanctioning TTU in accordance with the Conference’s agreed-upon framework and rules is not remotely anticompetitive and, if anything, would enhance competition and instill consumer confidence by supporting and honoring fair play.” (Complaint at ¶ 110).

Count III: For Declaratory and Injunctive Relief Based on Violations of the Commerce Clause – Paragraph 119 of the Complaint characterizes The Big 12’s Bylaws as “an interstate contract among the Conference and its member institutions, which are located across the country, including Arizona, Colorado, Florida, Iowa, Kansas, and other States.” Paragraph 122 accuses Paxton of “threaten[ing] to use the law to prohibit the conference from enforcing the disciplinary provisions of its own multistate agreement against TTU, a Texas institution.” Ensuing paragraphs assert that Paxton’s conduct violates the Commerce Clause of the U.S. Constitution because he would discriminate in favor of TTU, a Texas institution, to the collective detriment of the Big 12 Member Institutions located in other states, and that even if not discriminatory, Paxton’s conduct would impose burdens on interstate commerce that “are clearly excessive in relation to any putative local benefit.”

Count IV: For Declaratory Relief Against TTU Based on Governance Rights Under the Bylaws – This Count seeks a declaratory judgment that The Big 12’s enforcement of its Bylaws would not constitute a breach of contract with TTU because “Texas law recognizes that a party does not breach a contract by exercising rights expressly reserved to it under the contract.” (Complaint at ¶ 134).

Prayer for Relief: The Complaint concludes with a prayer for declaratory relief, injunctive relief, and costs and attorneys’ fees. The declaratory relief section summarizes the declaratory judgments sought in Counts I-IV. The injunctive relief section reads:

A preliminary injunction and a permanent injunction barring Defendants from seeking to deter, coerce, prevent, or punish the Big 12 for exercising its rights under its Bylaws to sanction TTU related to its handling of the sports betting activity discussed in this Complaint, including if TTU fields a student-athlete in Big 12 competitions who has engaged in collegiate sports betting activity.

EPILOGUE: Brendan Sorsby Declares for NFL Supplemental Draft — Does this Moot The Big 12’s Complaint?

According to ESPN, “the NFL supplemental draft is an alternate summer draft that allows teams to bid future draft picks on players who, for various reasons, had their college eligibility impacted and did not enter the regular spring draft.” The league is not required to conduct such a draft, but it can opt to do so.

Sorsby has had until June 22 to declare for the supplemental draft. On June 15, ESPN reported that Sorsby decided to declare for that draft, although the league currently does not have a supplemental draft scheduled, and that it “holds a supplemental draft only when approved prospects are available, which hasn’t happened since 2023.” Adds ESPN: “The league still needs to approve Sorsby’s application for there to be a 2026 supplemental draft, which would take place sometime later this summer.”

If for any reason the NFL opts to not conduct a supplemental draft, or to deny Sorsby’s application, Sorsby would not be able to return to college football. This is because Sorsby’s attorney in the Lubbock County Lawsuit announced that Sorsby would now be withdrawing that lawsuit, “which is expected to mean that Sorsby would again be ineligible under NCAA rules,” as reported by ESPN.

Given that Sorsby will not have any recourse to return to college football, the scenario of Texas Tech planning for Sorsby to suit up as a Red Raider is incapable of repeating. And that means The Big 12’s main reason for sanctioning Texas Tech goes away. However, could there be lingering reasons why The Big 12 would still consider sanctioning Texas Tech? What about, for instance, Texas Tech having caused The Big 12 to incur legal expenses in bringing the lawsuit? Might Texas Tech’s actions involving Paxton themselves be considered a breach of any Bylaw?

We will likely see very soon whether The Big 12 believes such lingering issues exist. Otherwise, a court would conclude that The Big 12’s lawsuit no longer meets the MedImmunerequirements to maintain a declaratory judgment action, and in that event, The Big 12 would likely opt to itself voluntarily dismiss the litigation.

But not before we’ve already picked up some valuable examples of declaratory judgment principles in action.