March 31, 2016
A federal judge on Thursday ordered the NCAA to pay more than $42.3 million in attorney’s fees and costs to lawyers representing the plaintiffs in the Ed O’Bannon antitrust case.
The decision by U.S. District Judge Claudia Wilken came in response to the NCAA’s request for a review of Magistrate Judge Nathanael Cousins’ decision in July 2015 to award nearly $46 million in fees and costs.
However, the plaintiffs’ lawyers are trying to have the case heard by the Supreme Court, and an adverse ruling could result in further reduction – or the elimination – of Wilken’s award.
Cousins’ decision came nearly a year after Wilken ruled that the NCAA’s limits on what major college football and men’s basketball players can receive for playing sports “unreasonably restrain trade” in violation of antitrust laws. Although the case — which began in the summer of 2009 — did not include a financial damages component, Wilken ruled that the plaintiffs “shall recover their costs from the NCAA.”
The NCAA appealed Wilken’s verdict to the 9th U.S. Circuit Court of Appeals. A three-judge panel upheld Wilken’s antitrust finding and her decision to keep the NCAA from prohibiting athletic scholarships that cover the full cost of attending college, but it threw out her remedy that would have allowed schools to provide athletes deferred compensation of as much as $5,000 per year.
On March 15, the plaintiffs asked the Supreme Court to hear the case.
If the high court takes the case and overturns the antitrust finding, the plaintiffs could lose all of the fees-and-cost award.
“If (the Supreme Court) would reverse the finding of a violation, yes,” the award would be eliminated,Michael Hausfeld, the lead attorney among a broad array of firms that have been working for the plaintiffs, told USA TODAY Sports when his side made its bid to the high court.
The NCAA has until April 14 to decide whether it wants to make its own request for the Supreme Court to take the case. It has a few days more to file a response to the plaintiffs’ bid for review.
In upholding most of Cousins’ fee award, Wilken wrote that “although a portion of the injunctive relief” she ordered “was reversed … the finding of liability and the remaining injunctive relief are together an excellent result” for the plaintiffs.
Wilken wrote that a change in the NCAA’s rules that now allows athletes to receive scholarships based not only on tuition, fees, room, board and books, but also the full cost of attendance does not reduce the impact of her ruling in the plaintiffs’ favor.
“The NCAA has failed to rebut the inference that Plaintiffs’ lawsuit and this Court’s order were factors in its decision to change its rules,” she wrote.