NCAA Asks Pasadena Court to Strip $40 Million Fee Award from Student-Athletes

Published : Monday, February 19, 2018 | 6:44 AM

Federal Courtoom Pasadena

The National Collegiate Athletic Association fought a $40 million attorney fee award at the Ninth Circuit Court in Pasadena on Thursday, in an antitrust class action by former student-athletes who said the organization forced students to sign their rights away while reaping the benefits of licensing and merchandise agreements using their photographs and video footages.

The Pasadena federal courthouse on Grand Avenue is part of the United States Court of Appeals for the Ninth Circuit, the busiest Circuit Court in the nation.

This is the latest development in a 2009 federal class action that the former student-athletes filed against the NCAA, the makers of sports video games, and a college licensing company.

In the suit, former UCLA basketball star Edward O’Bannon claimed students were forced to sign away the rights to their own images if they wanted to play NCAA sports.

Like many other former athletes, O’Bannon’s collegiate career is archived in video footage and photographs that are sold through merchandising deals.

The former college athletes said NCAA’s backlog of archived footage could be worth billions of dollars.

The other defendants included video game publisher Electronic Arts and Collegiate Licensing Company.

In July 2015, U.S. Magistrate Judge Nathaniel Cousins ordered the NCAA to pay nearly $46 million in attorney’s fees and costs to lawyers for the student-athletes. Almost a year earlier, U.S. District Judge Claudia Wilken in Oakland had said the NCAA violated antitrust law by barring athletes from sharing in revenue from the commercial use of their names and images.

The award – later lowered to just over $40 million – was 90 percent of the $50.9 million the student-athletes sought. The NCAA has earlier insisted that any award should not exceed $9.1 million.

Fighting the fee award at the Ninth Circuit on Thursday, NCAA attorney Gregory Curtner, from Riley Safer Holmes and Cancila, said the student-athletes adopted a winner-take-all approach in their antitrust class action, according to a report by Courthouse News.

“A ‘Game of Thrones’ approach. There was no middle ground,” said Curtner, who noted the student-athletes sought to revolutionize intercollegiate sports, failed, and aren’t entitled to a fee award. “They’re entitled to nothing.”

Jonathan Massey, the student-athletes’ attorney, said the case was a hard-fought class action that didn’t just end with “a narrow injunction.” Massey said the Ninth Circuit panel should keep in mind that not all claims need to be successful.

“We think this court has established that it’s OK to lose sometimes,” Massey said Thursday. “You don’t have to win every single claim in order to be entitled fees for all of the claims.”

The panel is composed of Chief Circuit Judge Sidney Thomas, Circuit Judge Jay Bybee and Senior U.S. District Judge Gordon Quist, sitting by designation from the Western District of Michigan.

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