Last week’s piece argued that three legal structures hold NCAA governance together, NCAA v. Tarkanian, the College Sports Commission, and the $20.5 million revenue-share cap, and that each one took a structural hit in a single ten-day window. I knew when I posted on Wednesday that the next thing was going to be a piece on the structural pressure underneath the shields. I didn’t know it was going to write itself in the next five days, but such is this topic/life/my bad choices I guess. :)
Brendan Sorsby filed a motion to dismiss this week. Darren Heitner thinks the judge will dismiss. Michael McCann thinks the case will be cited for years. Mit Winter says the schools should just admit what athletes are being paid for. Underneath the shields, the contracts are failing. (Links below.)
That motion is one of three news events this week pointing at the same problem. On Monday, a Dallas County jury returned a $30 million compensatory verdict against the NCAA in Davis v. NCAA, the punitive phase of which begins this Monday. On Friday morning, Darren Heitner’s Newsletter, Image, Likeness Vol. 182 led with a deep dive on Brendan Sorsby’s Motion to Dismiss the University of Cincinnati’s $1 million liquidated-damages claim against him. And late Thursday night, Tom Mars flagged that Arkansas’s elimination of its men’s and women’s tennis programs may have created an actionable Title IX violation.
These look like three different stories. They share a common structural cause: the contractual and institutional architecture beneath the three shields is being attacked from multiple directions, in multiple legal venues, on a timeline no central authority can manage.
I suppose Sorsby is the cleanest place to start.
What the Sorsby motion actually argues
Brendan Sorsby was the University of Cincinnati’s starting quarterback in 2025. After the season he transferred to Texas Tech. UC sued him for $1 million in liquidated damages, plus attorneys’ fees, on the basis of a clause in the rev-share agreement they signed in July 2025. This week his attorneys filed a motion to dismiss asking Judge Michael Barrett to throw the whole thing out.
The argument is more interesting than the size of the number suggests, because it operates on three different levels at once.
The first level is the contract itself. UC’s agreement with Sorsby is, formally, a license of his name, image, and likeness rights. That’s the only legal vehicle the House v. NCAA settlement preserved for direct school-to-athlete payment. The settlement let schools pay athletes up to $20.5 million per year, but only if the payment is structured as compensation for NIL, not for athletic performance. Not pay-for-play. Not employment. Licensing fees.
The actual UC-Sorsby agreement, as Sorsby’s motion documents, is structurally an employment contract. It required him to maintain NCAA eligibility. It required him to meet the football program’s physical fitness standards. It required medical clearance for athletic activities. It made his “participation in the football program” the “material inducement” for the entire arrangement. Monthly payments approximately doubled during the football season. Payments stopped when he stopped playing. UC retained the right to terminate based on his failure to meet football program requirements. As Heitner puts it in Vol. 182: “This wasn’t an NIL licensing deal. This was an employment contract dressed up to comply with NCAA rules.”
The second level is the liquidated-damages clause itself. Ohio law, which governs the agreement, requires three elements for an enforceable LD clause: actual damages must have been uncertain at contracting; the stipulated amount must be reasonable and proportionate; and the parties’ intent to stipulate must be clear. All three. If any one fails, the clause is treated as an unenforceable penalty.
Sorsby’s motion attacks all three, and the first two attacks are the kind of arguments that don’t require the judge to feel any particular way about college sports to credit. Ohio’s right of publicity statute caps statutory damages for unauthorized commercial use of a person’s persona at between $2,500 and $10,000. Ohio’s own legal default for the value of misappropriated NIL is, in other words, between roughly two and one-third and four-tenths of one percent of the $1 million UC is demanding. UC paid Sorsby $875,800 over the one season he completed under the agreement. UC is demanding $1 million as compensation for what it lost when Sorsby exercised a transfer right every NCAA athlete has. The damages clause demands more than UC itself paid out under the contract.
And then there’s the third-level fact that makes the whole thing look like what it is. UC offered to waive the $1 million liquidated-damages claim entirely if Sorsby entered the NFL Draft instead of transferring to a competing school. The damages clause, in other words, was not designed to compensate UC for the loss of a licensee. It was designed to prevent Sorsby from joining a rival. That’s the textbook definition of an unenforceable penalty.
Heitner’s read: Judge Barrett is going to dismiss.
The McCann reframe
If the Sorsby motion only operated as a contract-law attack on transfer-suppression clauses, it would be enough on its own to disrupt the post-House contractual machinery. Every Power 4 program has these clauses. Every standard rev-share agreement uses some version of the same liquidated-damages-on-transfer architecture. If the ones in Cincinnati’s contract don’t survive Ohio penalty doctrine, the ones in every other state are going to be tested next, and most of them won’t survive their respective state-law equivalents either.
But Mike McCann, writing in Sportico this week, reads the case as potentially something bigger. McCann’s framing is that Sorsby’s motion is positioned to be cited, even before Judge Barrett rules, in future court and administrative-agency filings on the question of whether college athletes are employees.
If Judge Barrett’s dismissal engages the broader structural argument rather than dismissing on the narrow Ohio penalty-doctrine grounds alone, the downstream effect is much larger than the contract-law dismissal itself. The MTD’s structural argument, that the rev-share contract is functionally an employment agreement and the NIL framing is rules-compliance dressing, becomes citable authority in NLRB proceedings, in Fair Labor Standards Act cases, in state-wage-and-hour disputes, in any administrative venue where the question is whether the school’s relationship to the athlete is governed by employment law. It does this by putting the analysis into a court record, in a defendant-friendly framing (the school’s own contract demonstrates the employment structure), backed by a senior practitioner’s analysis (Heitner’s), in a posture where the school cannot easily concede.
Mit Winter’s Monday tweet on the case put the implication directly: “Sooner or later the arguments made here by Sorsby’s counsel will be ruled on by a court. And depending on the outcome, it could completely upend the current college athlete ‘NIL’ compensation model. It would be better to just admit what the athletes are really being paid for.”
That’s two of the most senior NIL-litigation voices in the country, plus the lawyer who runs the most-read legal newsletter in the space, all converging this week on the same read: the school-direct contracts are pretending to be one thing while operating as another, and the contractual fiction may not survive the next year of court scrutiny.
The McCann frame on Sorsby points forward to something that landed concretely this week. The Big 12 announced a five-year strategic partnership with RedBird Capital and Weatherford Capital, the first of its kind with a major Division I conference. The partnership delivers $12.5 million to the conference and gives member schools the option of drawing on a $30 million capital credit line. The deal does not involve equity transfer, which sidesteps a difficult set of public-university charter questions. McCann’s Sportico analysis flags the implication Sorsby’s MTD primes: if college athletes are eventually recognized as employees, the schools become employers, the conferences arguably become joint employers, and the private-equity backers may face joint-employer designation as well. The doctrinal pathway is real but slow. Johnson v. NCAA, currently surviving on motion practice, is the vehicle for the employee-classification question. The Dartmouth basketball NLRB regional director ruling that the players were employees is the proof of concept, though the players withdrew their petition after the 2024 election and the NLRB’s composition has shifted away from the expansive joint-employer doctrine that would help here. So the PE-as-joint-employer risk is doctrinally credible but operationally distant, conditioned on a multi-year sequence of doctrinal moves landing favorably for plaintiffs. The Big 12-RedBird deal expands the universe of potential joint-employer co-defendants in future labor or antitrust action to include institutional capital. Whether and when that risk gets priced into PE investments in college sports is a different question. PE companies are probably not pricing it yet. McCann’s bottom line on the PE deal landed clean: “investors are taking a chance in tying their money to college sports at a time when there are unresolved and potentially transformative legal battles, with outcomes hinging less on economics than on judicial decrees.”
Sorsby has a twin
The Sorsby case is not the only one of its kind. Damon Wilson v. Georgia, a countersuit Wilson filed in Missouri state court earlier this year, makes a structurally identical attack on Georgia’s standard rev-share contract liquidated-damages clause. Same theory. Different state, different facts, different legal venue.
The two cases together create a precedent gradient regardless of which one rules first. If Judge Barrett dismisses in Ohio federal court, Wilson’s lawyers cite it in Missouri state court. If a Missouri court rules on Wilson before Sorsby is decided, Sorsby’s lawyers add the citation. The LD-clause attack isn’t a Cincinnati problem. It’s a category attack on a contractual structure that every Power 4 program is using.
There’s a meaningful chance that by the time the 2026 football season starts, the standard rev-share contract architecture in college sports is on materially weaker legal ground than it is right now.
The architecture beneath the shields
Last week’s piece named three structures holding NCAA governance together. Underneath those shields runs the contractual machinery that operationalizes the post-House era. The rev-share agreements between schools and athletes. The liquidated-damages clauses that suppress transfers. The third-party NIL deals routed through multimedia rights companies. The NCAA’s institutional framework for absorbing historical liability without it metastasizing into mass-tort exposure.
That machinery is now under explicit court attack, in different angles, different venues, and different timelines, but concurrently and visibly, in ways that don’t require the federal pathway to deliver to be consequential.
There are, on my count, at least five structural attack vectors operating right now, though they aren’t equally mature. Each is independent. Each is in a different legal venue. Each would do significant damage if it lands, though some are further along the doctrinal pathway than others.
Vector one is the Tarkanian state-actor doctrine, which Ternes, Sabin, and Ehrlich argued in Matt Brown’s Extra Points the April 3 executive order may convert. State-action conversion is historically narrow doctrine and the case for it is hedged, but the EO introduced a colorable conversion argument where none existed before April 3. As I noted last week, that’s a different thing from inevitable. But it’s also a different thing from no risk.
Vector two is the College Sports Commission’s enforcement architecture. The shields piece covered the Kessler motion attacking CSC scope on associated-entity definitions. Heitner’s Vol. 181 added the privity problem, a third-party-payment loophole through which athletes are not party to the operative agreements, which means the CSC’s reporting framework cannot reach them at all. And Bryan Seeley’s matchmaker/facilitator retreat was itself a substantive ground concession from the CSC’s prior posture. There’s also a wrinkle worth noting here: Mit Winter pointed out this week that the House settlement objectors (athletes who opted out of the class) are actually backing the CSC on the MMR question. The plaintiff bar isn’t uniformly arrayed against the CSC. It’s split between class counsel narrowing the CSC and objectors supporting it. The CSC is being attacked on two fronts simultaneously, but they’re attacks coming from people whose underlying interests are pulling in different directions on the cap-honest question.
Vector three is the LD-clause contracts themselves: Sorsby plus Wilson, in two different state-law jurisdictions, with persuasive authority running both directions.
Vector four is Davis v. NCAA. The Dallas County jury returned a $30 million compensatory verdict on Monday. Plaintiffs introduced internal NCAA documents arguing that NCAA medical experts had information regarding progressive neurodegenerative disease in college football players dating back to the 1930s, and that the NCAA failed a provision of its own constitution requiring the association to study sports. The NCAA’s defense at trial was that CTE is a “hypothetical” disease. The punitive phase begins Monday, May 4. Plaintiffs’ counsel is Shrader & Associates, an asbestos and toxic-exposure litigation specialist firm based in Houston. Their involvement signals that plaintiff-side mass-tort lawyers are now treating CTE in college football as a viable category for sustained litigation. The closer analog is probably the NFL’s $1 billion 2015 CTE settlement structure than asbestos’s decades-long expansion, but the structural feature, plaintiff lawyers organizing around CTE liability with a multi-decade evidentiary record, is real either way. This is a level of exposure for the NCAA that has been, until now, more theoretical than priced.
Vector five is the most provisional of the five and worth flagging carefully. Tom Mars surfaced Thursday night that Arkansas’s elimination of men’s and women’s tennis on April 24 created a Title IX financial aid disparity greater than 1%. The 1% threshold is part of the Office for Civil Rights framework for athletic financial aid compliance, but crossing it doesn’t establish a violation in isolation. A school with disproportionate aid can still be in compliance if participation rates are proportional, if historical patterns are explainable, or if it is actively reducing the disparity. So Mars’s flag isn’t a finding. It’s a smart lawyer asking publicly whether Arkansas has Title IX exposure, which is a different epistemic claim from a complaint, an OCR finding, or a peer practitioner’s analysis. The structural relevance is what makes the flag worth elevating: Mars is pointing at a mechanism by which the cap-fiction at the top of the distribution generates downstream federal compliance exposure for the schools doing the cutting. Even if Arkansas survives this specific question, the shape of it, can a school cut Olympic sports to fund football and basketball without creating Title IX problems, is now in public play. Other schools cutting programs in the next year are going to face it.
Five vectors at varying levels of doctrinal maturity, in five different venues, on five different timelines. Each one, on its own, would generate years of litigation if it lands. The five together generate something else. They generate a category problem the institution does not have a unified response to, in part because the responses live in different doctrines.
Let’s slow down for a moment. I had been thinking the Arkansas tennis cut was downstream evidence of cap-fiction, the empirical confirmation that the structural cost was being borne by non-revenue programs. It is that. But Mars’s flag adds something else. The cut is also generating new federal compliance liability for the school doing it, which means the cap-fiction is producing not just program elimination at the bottom of the distribution but actionable legal exposure on top of it. The institutional cost of operating in the rev-share era at maximum spend isn’t just the foregone Olympic-sport investment. It’s the federal Title IX liability that attaches to making the foregoing visible.
The federal pathway, three weeks in
While all of this is happening underneath the shields, the federal pathway the NCAA has been counting on hasn’t moved.
Ross Dellenger reported a week ago that the SCORE Act is not on the House agenda for next week, that Congress is on break the first week of May, and that the earliest possible floor action is mid-May. Cantwell and Schmitt told 30+ university presidents two and a half weeks ago that the SCORE Act could not pass as written. Charlie Baker, asked directly this week whether Congressional action was likely, gave Bryan Fischer of Sports Illustrated this answer: “We’re still being asked questions, we’re still being updated by committee staff about conversations they’re having. There’s definitely still a fair amount of interest and commitment to try and figure out something that could get passed by the House or the Senate. I’m actually grateful that in the midst of all the other stuff those guys are worrying about, we’re still a part of the conversation.“
That reads as more measured than the “ready to fight” Baker the SI interview from earlier in April produced. Some of that may be normal politician’s modesty, since Baker’s communication style as the former Governor of Massachusetts has historically defaulted to “we’re working it” rather than to confident closing claims. But even on the more charitable reading, the directional point holds: Baker is not currently arguing the federal pathway will deliver. He’s arguing the institution hasn’t been forgotten. Those are different positions.
What Baker is doing in the meantime is pivoting from federal-pathway advocacy to internal-rule management. He told ESPN Louisville on Monday that the age-based eligibility rules will not be retroactive, meaning athletes who’ve exhausted eligibility by spring 2026 won’t get the proposed fifth year. Dellenger followed up Thursday with the news that the NCAA distributed an implementation chart to member schools indicating the concept will be adopted for 2026-27, with final waivers under current rules due July 31. So the institution is moving on operational governance, the eligibility rule, the 76-team March Madness decision expected this month, while the architecture supporting that operational governance is being attacked from five different angles in five different venues.
That can read as drift, but it can also read as competent prioritization under constraint. The distinction matters less than what the operational focus doesn’t do, which is address the structural pressure I just walked through.
What survives
Last week’s piece argued that what survives if all three shields fall is direct antitrust exposure, which was the thing the shields were supposed to protect against. After this week’s news, the inventory of what survives gets worse.
What survives if the shields and the architecture beneath them keep coming down is direct antitrust exposure, plus contract-law scrutiny of every school-direct LD-clause contract, plus mass-tort liability on historical CTE exposure with 1930s-era evidence, plus Title IX compliance exposure from program elimination, plus state-court eligibility injunctions from athletes the new rules don’t reach.
The institution is being deconstructed not just shield by shield, but contract by contract, and venue by venue. That’s the structural feature this week made visible.
A short probabilities update
Standard reminders: these are my best estimates from publicly available information, not mutually exclusive, and I reserve the right to move them when the ground moves. See the Friday federal stall piece for full definitions.
The collective bargaining probability moves toward the upper end of the 20–26% band, possibly past it, on McCann’s framing. If Sorsby’s MTD is going to be cited in employment-classification fights for years, the design space the Cantwell-Schmitt narrow-hybrid bill has been negotiating in (non-employment CBA) gets more pressured, not less. The structural argument for an employment-or-CBA resolution gets stronger as the fiction of the rev-share licensing contracts becomes harder to defend in court.
Litigation-as-governance pinned to the ceiling, possibly above where I had it last week. Five concurrent vectors compound it.
Conference-level NCAA-internal reform stays at 1–3%, where I moved it last week. The conferences are not trying to fix the NCAA-internal route. The conference-separation pathway, which I noted last week was missing from the framework, gets a tentative formal entry this week at 10–18%. Definition: one or more Power 4 conferences formally exits NCAA governance for revenue sports (football and basketball) and operates either through a new association or through cross-conference enforcement contracts, with NCAA membership retained for non-revenue Olympic-sport championship infrastructure. Separation looks more attractive when the institution carries five concurrent vectors of liability that the conferences could partially ring-fence themselves from. The Big 12-RedBird deal also demonstrates a financial mechanism for it: conferences with PE capital have a funding source that doesn’t depend on NCAA membership. The base rate for major-league sports governance separations is low, though, and the conferences would inherit forward liability rather than escape it. So separation is a plausible response to the structural pressure, not an inevitable one. Even at 10–18%, the more likely near-term scenario is the drift answer-four from last week, where institutional decay continues without formal separation. I’ll work the full pathway analysis into a future piece.
The EO-as-standalone-reform band stays at 1–3%. The federal pathway is not the venue.
What the NCAA is perhaps becoming
Last week I argued the institutional question is no longer “can Congress save us?” but “what is the NCAA if the shields come down and the federal pathway doesn’t land?”
This week the question is sharper. The shields are still coming down on roughly the same schedule. But now the architecture beneath them, the school-direct contracts, the CSC’s enforcement reach, the institution’s historical-liability shielding, the program-cut compliance margins, is also being attacked from the directions where individual lawyers see openings. The NCAA cannot defend all five vectors at once because they live in different doctrines and different venues. Each vector that lands narrows what the institution can plausibly retain.
A useful comparison: the flagship piece I re-pushed last weekend maps the political-economy incentives of fourteen actors in college sports. The Olympic / Low-Revenue Sports row in that table flagged “Cuts” as a CBA risk. As of this week, that risk is being realized under the status quo, before any CBA exists, with downstream Title IX exposure attached. The status-quo defenders of the current institutional structure are losing the rows they have historically used to argue the system protects them.
(above is the table from the flagship post that lays out incentives/costs/benefits to each class of actors…What we learn from thinking through the table above: those who would benefit most from collective stability often lack power. Those with power often benefit from legal and institutional ambiguity. Collective bargaining resolves neither problem, but it’s still gotta be on the table in some sort of sport by sport solution, perhaps, as the piece argues, but we are nowhere close to that happening…)
I’ll mark a small follow-up note here. A reader on LinkedIn this week pointed out that a substantial share of NCAA athletics is taxpayer-subsidized through state legislative appropriations to public universities. That’s correct, and I documented the patchwork two weeks ago. The subsidy concern is part of the structural pressure I’m tracking, not a counterargument to it. Public dollars supporting an institutional structure that’s being attacked from five legal directions is itself a governance accountability problem, and one I expect to sharpen as the political coalition math around college sports gets tighter through the summer.
The states aren’t waiting. The courts aren’t waiting. The plaintiff bar isn’t waiting. Congress is waiting. The NCAA is waiting. And the architecture that made it reasonable for the NCAA to wait is being deconstructed by people who don’t need each other’s permission to keep deconstructing it.
More next week, perhaps, if Monday’s Davis punitive number lands the way I think it will.
If you’re finding this analysis useful, share it with someone trying to make sense of the post-House governance environment. Last week’s Shields piece is the immediate prequel; the federal-stall piece and the state-patchwork inventory are the two-week setup for both.
This is an ongoing series applying political economy analysis to the college sports reform landscape. Recent entries:
College Athletics Might Be Losing Its Shields (Wednesday)
The College Sports State Law Patchwork (last Saturday)
No One Is Waiting (last Friday)
How Collective Bargaining Could Stabilize College Football (flagship)
The Week Everyone Tried to Govern
Five Roads Out and Why Most of Them Dead-End
NB: This essay is written in my capacity as a political scientist who studies institutions, incentives, and collective action, not as an institutional spokesperson.