In Doing So, He Reduces About $5 Million Of Class Counsel Request, But Invokes “Game Of Thrones” To Reject NCAA’s Argument That Only $8.5 Million Should Be Awarded.
A class of football and men’s basketball players won antitrust claims against the National Collegiate Athletic Association (NCAA) for use of their names, images, and likenesses in a highly-publicized, vigorously-litigated case spearheaded by Ed O’Bannon, with the merits ruling under appeal to the Ninth Circuit. However, class counsel’s fees/costs requests were recently adjudged by U.S. Magistrate Judge Nathanael Cousins from the U.S. District Court, Northern District of California.
In O’Bannon v. National Collegiate Athletic Association, Case No. 4:09-cv-03329 (N.D. Cal. July 13, 2015), U.S. Magistrate Judge Cousins awarded class counsel nearly $46 million in fees/costs/expenses, broken down as $44.4 million in fees (a $1.2 million reduction from the request) and $1.5 million in costs/expenses (a $3.7 million reduction from the request). NCAA had lobbied for a heavy reduction down to about $8.5 million.
In reaching his decision, the magistrate judge determined that class counsel had been vindicated on their main antitrust claim against “a behemoth of an institution like the NCAA.” The NCAA, in supports of its large reduction argument, tried to argue the case was like “a tale of two lawsuits,” obviously borrowing from Charles Dickens’ book “A Tale of Two Cities”—based on the idea that the 2009-filed suit was much different than 2012 after class counsel lost some battles along the way. Although acknowledging some truth to this analogy, the magistrate judge found a “more apt allusion” being 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. 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.”
Weapons from Game of Thrones. Wikipedia. Benjamin Skinstad, 2014.
The magistrate judge also rebutted NCAA’s “overstaffing” argument after recognizing that NCAA itself had to close to a dozen lawyers as well as support staff representing its interests at trial.
