IP Law Daily, COPYRIGHT—S.D. Tex.: No pathway around state sovereign immunity for copyright infringement lawsuit against Texas A&M employee, (Feb 23, 2026)

By Matthew Hersh, J.D.

An aggrieved sportswriter could sue only the university or its employee, but not both.

A sportswriter who penned a biography about a long-revered Texas athletic figure could not maintain a copyright infringement against an employee of a state university because he simultaneously named the university as a defendant in his complaint, the federal court for the Southern District of Texas has held. The court, in acknowledging the somewhat “draconian” nature of the Texas law that precluded the lawsuit, made clear that federal law would also not provide a pathway around Texas state sovereign immunity doctrine (Canada Hockey LLC v. Texas A&M University Athletic Department, No. 4:17-cv-00181 (S.D. Tex. Feb. 13, 2026)).

The lawsuit arises out of the lore of Texas A&M’s so-called “12th Man” football tradition. The tradition was inspired by the actions of E. King Gill, a onetime squad player who was asked to suit up in the middle of a 1922 game in case his injured team ran out of reserve players. In the words of Michael Bynum, an Alabama sportswriter and an eventual biographer of the enthusiastic would-be player, “Gill's commitment to step up for his team when in need later became a legend that was passed down from generation to generation of Aggies.”

But Bynum was not the only person interested in the story of E. King Gill. In June 2010, Bynum emailed a member of Texas A&M’s athletic department, Brad Marquardt, seeking photographs to include in his book. But before the book could be published, however, the athletic department allegedly took the opening chapter and published it—with a different byline and title—on its own website. By doing so, Bynum came to believe that the university destroyed his own prospect for publishing the work.

Bynum filed a copyright infringement lawsuit against the university as well as several of its employees, including Marquardt. The district court refused to dismiss the lawsuit on grounds of federal law qualified immunity, a decision that the Fifth Circuit, in 2022, declined to review. After additional discovery proceedings in the district court, Marquardt moved for judgment on the pleadings on the grounds of Texas law sovereign immunity, leading to this decision.

Sovereign immunity.The court granted the motion for judgment in Marquardt’s favor. Under the traditional doctrine of sovereign immunity, a state and its employees can only be sued if that state—or the federal government—have enacted legislation specifically permitting the lawsuit. But neither Texas nor the United States had done so here, the court found.

To begin with, the court found that there was no national waiver of sovereign immunity for lawsuits under the Copyright Act. In 1990, the court noted, Congress enacted the so-called Copyright Remedy Clarification Act that purported to abrogate state sovereign immunity for copyright infringement claims. But the Supreme Court, in Allen v. Cooper, 589 U.S. 248 (2020), found that Congress had exceeded its constitutional authority under the Eleventh Amendment in doing so. That shut down this potential pathway for the lawsuit against Marquardt, the court found. “If a State maintains its sovereign immunity vis-à-vis copyrights,” the court explained, “neither it nor its agents (including Marquardt) can be sued unless a waiver or mechanism is in place.” Congress provided no such waiver here, the court concluded.

Nor did Texas law provide the sportswriter with any pathway for suing the state employee, the court found. Under the Texas Tort Claims Act, the court noted, individuals can bring lawsuits against either the State or its employees for alleged tort violations—including violations of copyright law (which, the court “there seems to be a consensus... constitutes a tort”). But under Texas law, the court noted, there was a catch: a plaintiff must choose at the very outset of the litigation whether it wishes to pursue a lawsuit against the State or against the employee or employees allegedly involved. Since the sportswriter named state institution Texas A&M as a defendant, the court reasoned, it was permanently barred from suing Marquardt. “While this provision may seem draconian,” the court allowed, “it has been strictly enforced by federal and state courts.” The lawsuit against Marquardt would therefore fail.

The Case is No. 4:17-cv-00181.

Judge: Hanen, A.

Attorneys: Charles W. Prueter (Fortif Law Partners, LLC) for Canada Hockey LLC. Ian Micah Davis (McGinnis Lochridge LLP) for Brad Marquardt.

Companies: Canada Hockey LLC

Cases: Copyright TexasNews GCNNews