NCAA seeks huge reduction in O'Bannon plaintiffs' legal fees
Lawyers for the plaintiffs in the Ed O'Bannon class-action antitrust lawsuit against the NCAA should be awarded less than 20% of the nearly $50.9 million in attorneys' fees and other costs they are seeking in the case, the association argued in a filing Friday night.
This past August, U.S. District Judge Claudia 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.
She also issued an injunction that would the create a system under which Bowl Subdivision football and Division I men's basketball players would be able to receive not only scholarships covering their full cost of attending school but also what amounts to deferred compensation in exchange for their participation and the schools' use of their names, images and likenesses.
The case did not include a financial damages component, but Wilken also ruled that the plaintiffs "shall recover their costs from the NCAA."
In a filing that underwent a final revision in November, the plaintiffs — led by Michael Hausfeld's firm, Hausfeld LLP — wrote that they are seeking attorneys' fees of $45,573,985 and recoverable costs and expenses of $5,295,062. They also asked for consideration of "an upward adjustment" of the final amount awarded because the case "carried an exceptional risk of defeat and required a tremendous amount of time and labor that in turn precluded other employment."
The NCAA has appealed the ruling and the accompanying injunction to the 9th U.S. Circuit Court of Appeals, which has scheduled oral argument for March 17.
In the meantime, Wilken has handed oversight of the fees-and-costs battle to Magistrate Judge Nathanael Cousins.
On Friday night, the NCAA asked Cousins to reduce the requested fees by at least $36.9 million and the requested costs by more than $4.9 million.
The NCAA argued that the plaintiffs changed their legal approach more than three years into a case that began in July 2009, and the lawyers essentially should not get paid for the work they did during those early years. They also said that even after changing legal theories, the plaintiffs "were only partially successful," that O'Bannon and the original named plaintiffs are getting no benefit from the injunction that Wilken issued, and that the injunction — even if it survives appeal — is "only a fraction" of what had been sought by the plaintiffs.
During the latter stages of the trial this past June, the plaintiffs offered an array of suggestions of what could be allowed under an injunction, including the prospect of college athletes being allowed to receive money from endorsements.
"Plaintiffs' requested fees and costs are far beyond what is permissible given this limited success," the NCAA wrote. "Plaintiffs should recover nothing for the unsuccessful claims pursued on behalf of the original named plaintiffs, and the fees and costs they incurred while pursuing injunctive relief on behalf of the post-2012 class must be reduced to reflect their limited success."
The NCAA also contended that the more than 30 other law firms that helped the Hausfeld firm with the case "added very little of substance, but padded (the fee total) by billing thousands of hours of useless time."
In addition, the NCAA cited allegations regarding Hausfeld LLP billing practices made by a former Hausfeld LLP partner and member of the plaintiffs' legal team, Jon King. In a wrongful termination suit against Hausfeld LLP that ended up being dismissed, King, according to the NCAA, "publicly admitted that Hausfeld LLP engaged in a 'scheme' of 'overstaffing' this case 'resulting in massive inefficiency and a stunning amount of attorney time being spent.' ... The billing records confirm King's admission — counsel padded the file with duplicative and unproductive work to inflate their fees."
The plaintiffs will be allowed to file a reply brief by March 9.