A federal magistrate judge late Monday ordered the NCAA to pay nearly $46 million to Ed O’Bannon's lawyers in attorney fees and legal costs for their court victory. The NCAA had been seeking the costs to be heavily reduced to approximately $8.5 million.
US Magistrate Judge Nathanel Cousins awarded the O'Bannon lawyers $44.4 million in attorney fees, a reduction of almost $1.2 million from what they requested. The NCAA was also ordered to pay $1.5 million in costs and expenses, down $3.7 million from what the plaintiffs sought. At one time, O'Bannon's lawyers -- led by Michael Hausfeld -- had been asking for $50.9 million.
Last August, a federal judge ruled that the NCAA violated antitrust law by preventing football and men’s basketball players from being paid for use of their names, images and likenesses. The NCAA has appealed the decision to the 9th U.S. Circuit Court of Appeals, which has yet to issue an opinion. The appellate court's decision could impact the attorney fees awarded Monday.
In Monday’s order, Cousins wrote that the NCAA has tried to “downplay” the O’Bannon lawyers’ success and said they were "vindicated" on their main claim that the NCAA violated antitrust law by its restrictions.
“The fact that plaintiffs did not get certified for a damages subclass or achieve compensatory damages does not detract from this unprecedented success in the antitrust field," Cousins wrote. "This win against a behemoth of an institution like the NCAA could significantly change American college sports; in particular, the way the NCAA treats its student-athletes.”
In trying to drastically reduce the O’Bannon lawyers’ fees, the NCAA referenced Charles Dickens’ book, “A Tale of Two Cities,” by framing the case as “a tale of two lawsuits.” The NCAA argued the original case filed in 2009 became much different in 2012, a point Cousins acknowledged to be the case and that O'Bannon's lawyers lost some battles along the way.
“Perhaps a more apt allusion would have been to George R.R. Martin’s 'Game of Thrones,' where individuals with seemingly long odds overcome unthinkable challenges, but suffer stark losses along the path to victory,” Cousins wrote. “In Martin’s world, ‘When you play the game of thrones, you win or you die. There is no middle ground.’ …
“For plaintiffs, their trial victory in this adventurous, risky suit, while more than a mere game, is nothing less than a win that warrants attorneys’ fees for work spent on all claims -- successful or unsuccessful.”
Another argument the NCAA made in trying to reduce the legal fees was that O'Bannon's lawyers were overstaffed. Cousins said the NCAA's claims are "undercut by their own staffing decisions. For example, while it cries foul over plaintiffs' counsels' alleged overattendance at trial, the NCAA had close to a dozen attorneys, not to mention paralegals, assistants, and technical staff members, representing its interests at the trial."
Cousins denied the O'Bannon lawyers' request of almost $3.7 million for expert fees as part of costs and expenses.
The NCAA now has court decisions or proposed settlements in three cases that total $136 million the association will owe: O'Bannon legal fees ($46 million), the proposed concussion settlement ($70 million), and the video-game settlement ($20 million) that could be approved by a federal judge this week. The NCAA declined to comment.