Employment & Labor Insider

On June 23, the National Football League informed college quarterback Brendan Sorsby that it would not be holding a Supplemental Draft this summer. Mr. Sorsby had requested entry into the Supplemental Draft after his collegiate eligibility became the subject of multiple lawsuits related to his prior sports betting activity.

Mr. Sorsby’s legal team has insinuated that he will now pursue action through the collective bargaining agreement between the NFL and the NFL Players Association. That is highly questionable – as are Mr. Sorsby’s other legal options.

To stay or not to stay?

Mr. Sorsby transferred to Texas Tech in January 2026 from the University of Cincinnati, after having started his collegiate career at Indiana in 2022. This spring, the National Collegiate Athletic Association ruled Mr. 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.”

Mr. Sorsby then filed suit in Texas, asking the court to block the NCAA’s enforcement of its decision.

On June 8, the court granted the motion, finding that Mr. Sorsby would “suffer a probable, imminent and irreparable injury” if he were not permitted to play for Texas Tech during the 2026 season.

Although the court found in favor of Mr. Sorsby, it required that he miss the first two games and seek counseling for gambling addiction.

The decision set off a flurry of outrage, as the NCAA and many of its member institutions considered Mr. Sorsby’s actions to have crossed a clear line. The Big 12, the conference in which Texas Tech plays, filed suit in federal court seeking to clarify its authority over Texas Tech. The conference is also considering whether to bar schools from competing against Texas Tech in any sport.

In response, Mr. 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 Draft rules and the compensation to be offered to the selected players is addressed in the collective bargaining agreement.

The agreement also provides that the NFL “may” hold a Supplemental Draft if “the NFL deems it appropriate.”

“If 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 Mr. Sorsby was the only player who applied for a possible 2026 version.

In a June 23 letter, the NFL informed Mr. Sorsby that it would not be conducting a 2026 Supplemental Draft. The NFL expressed concern about Mr. Sorsby’s “sustained pattern of improper gambling activity during [his] collegiate career at three different universities.” The league characterized Mr. 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 Mr. Sorsby for not addressing these matters in his petition, or “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] Mr. Sorsby to focus on preparing for possible entry into the NFL through the 2027 Annual Draft.”

Mr. Sorsby with the ball

The NFL’s response leaves Mr. Sorsby with uncertain legal options.

According to ESPN, Jeffrey Kessler, attorney for both Mr. Sorsby and the Players Association, claims that the NFL’s decision was “a violation of the [agreement] and the law” and says that Mr. Sorsby will pursue the matter with the union.

Mr. Kessler perhaps is thinking that Mr. Sorsby can pursue a System Arbitration under the agreement, through which the union and its player-members can challenge conduct by the NFL and its clubs that is principally directed toward restraining player pay and mobility. This could include conduct involving the Draft, free agency, salary, and salary cap rules.

The union does not seem to have standing to initiate such an arbitration. The preamble to the agreement sets forth the members of the 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.

Mr. Sorsby does not fit into any of these categories. Thus, it does not appear that he or the union have any recourse under the agreement. 

Mr. 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 Mr. 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 his 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 the allegations on the merits.

However, such a claim by Mr. Sorsby should easily be defeated. The NFL’s Supplemental Draft is almost certainly protected from antitrust challenge by the non-statutory labor exemption. This exemption generally protects concerted activity of teams that restrains the player labor market as long as the restraints are collectively bargained with the players union.

There was no players association during the time of Mr. Radovich’s blacklisting. But the Supplemental Draft is now a part of the parties’ agreement and thus is certainly entitled to immunity, even though Mr. Sorsby is not yet a part of the bargaining unit.

Indeed, in a 2004 decision, the U.S. Court of Appeals for the Second Circuit held that the NFL’s regular Draft was entitled to the protections of the non-statutory labor exemption even though it was not explicitly included in the bargaining agreement at that time.

Finally, Mr. Sorsby could try to allege that he is being discriminated against on the basis of a disability (gambling addiction). Article 49 of the agreement explicitly prohibits discrimination “because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the [union].” Disability is not mentioned, but it would still be protected by state and federal law. Whether Mr. Sorsby has a viable disability discrimination claim is beyond the scope of this article.

See you next year

Mr. 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 his attorney has said. It seems that Mr. Sorsby’s time would be better spent preparing for the 2027 Draft.