Antitrust Law Daily Wrap Up, TOP STORY—N.D. Cal.: NCAA must pay $44.4M in attorney fees to current and former college athletes, (Jul 14, 2015)

By Greg Hammond, J.D.

A group of current and former college student-athletes have secured over $44.4 million in attorney fees, as well as costs in the amount of over $1.5 million, in their lawsuit against the National Collegiate Athletic Association (NCAA) for conspiring with licensing companies for the use of their names, images, and likenesses in television broadcasts and video games. The federal district court in Oakland, California, mainly found the plaintiffs’ fee request reasonable, but reduced the requested costs and expenses because it does not have the discretion to award expert fees (O’Bannon v. National Collegiate Athletic Association, July 13, 2015, Cousins, N.).

The plaintiff student-athletes, who played on men’s football or basketball teams at Division I member schools and conferences, filed suit against the NCAA, alleging that the NCAA violated federal antitrust law by conspiring with licensing companies, Electronic Arts Inc. and Collegiate Licensing Co., to restrain competition in two related national markets—the college education market and the group licensing market—for the commercial use of their names, images, and likenesses in television broadcasts and NCAA brand video games. In particular, the plaintiffs challenged NCAA rules that bar student-athletes from receiving a share of the revenue the NCAA and member schools earn from the sale of those licenses.

In April 2014, the court granted the plaintiffs’ motion for summary judgment on their antitrust claims against the NCAA and set their damages claims for bench trial. The court later enjoined the NCAA from enforcing its prohibition on student-athlete compensation for the use of their names, images, and likenesses in television broadcasts and video games. The class has since then moved for nearly $45 million in attorney fees and over $5 million in costs and expenses.

The NCAA made six objections to the fee requests, arguing that the plaintiffs: (1) request fees for unrecoverable work concerning unsuccessful and unrelated claims; (2) submitted insufficient evidence to support their fee request; (3) failed to apply necessary billing judgment as to fees for work on damages, jury trial preparation, and media outreach; (4) seek fees for work not appropriate for fee-shifting such as time spent soliciting clients; (5) request fees created by plaintiff counsel’s own inefficiencies, such as having partners perform document review; and (6) request excessive expenses such as expert fees.

The court first rejected the NCAA’s argument that attorney fees should be reduced due to unrecoverable work concerning unsuccessful and unrelated claims. The court found that there is a common core of facts that underlay all of the claims plaintiffs brought against the NCAA, claims that are all premised upon defendants’ exploitative use of plaintiffs’ names, image, and likenesses to generate revenue for defendants. Although the plaintiffs did not succeed on every claim, the time spent on the unsuccessful claims contributed to the decisive success by laying the groundwork for the eventual trial victory. Because the plaintiffs received “excellent results”—in that the unsuccessful claims contributed to the litigation of the successful antitrust claims and the plaintiffs obtained a substantial remedy of permanent injunction—the court found the NCAA’s “unsuccessful claims” argument to lower attorney fees unpersuasive.

The court additionally found: (1) block-bill entries were adequately detailed and short descriptions allowed the court to fairly evaluate the reasonableness of time expended; (2) the disputed redacted and partially redacted entries were sufficiently detailed for the court to make a reasonableness determination; (3) plaintiff counsel’s use of quarter-hour increments, however, warranted a reduction of over $330,000, because there were tasks that likely took a fraction of the time claimed; (4) the plaintiffs did not concede that they cannot recover fees for time concerning damages claims, jury trial preparation, and “most time related to press releases, interviews and the like”; (5) reduction of fees is not warranted with regard to work concerning Electronic Arts and Collegiate Licensing, state law claims, work soliciting clients, competing to be lead counsel, and certain clerical work; and (6) none of the staffing efficiency objections were persuasive.

Plaintiffs’ request for nearly $5.3 million in costs and expenses was reduced, however, to just over $1.5 million. Specifically, the court denied plaintiffs’ request for over $3.65 million for expert fees and reduced the fee request with regard to witness expenses, local travel expenses, pro hac vice application fees, and long distance travel expenses.

Finally, balancing plaintiffs’ risk of defeat with the fact that they did not succeed on every clam, the court denied the plaintiffs’ request for a positive multiplier of their lodestar. The NCAA’s request for a negative multiplier was also denied, however, given the plaintiffs’ significant victory at trial on their claim for injunctive relief.

The case number is 09-cv-03329-CW (NC).

Attorneys: Christopher L. Lebsock (Hausfeld LLP) for Edward C. O'Bannon, Jr. Glenn Douglas Pomerantz (Munger Tolles & Olson) and Robert James Wierenga (Schiff Hardin LLP) for National Collegiate Athletic Association. Gennaro August Filice (Filice Brown Eassa & McLeod LLP) for Collegiate Licensing Co. Robert James Slaughter (Keker & Van Nest LLP) for Electronic Arts Inc.

Companies: National Collegiate Athletic Association; Collegiate Licensing Co.; Electronic Arts Inc.

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