IP Law Daily NCAA granted time-out on paying $42M in attorney fees, costs
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Monday, May 23, 2016

NCAA granted time-out on paying $42M in attorney fees, costs

By Greg Hammond, J.D.

In an action brought by current and former college athletes against the National Collegiate Athletic Association (NCAA) over the use of their names, images, and likenesses in television broadcast and video games, the NCAA is not required to pay more than $40 million in attorney fees and $1.5 million in costs, pending the NCAA’s appeal to the Supreme Court. However, the NCAA is required to place more than $9 million—the undisputed amount of attorney fees and costs—in an escrow account, the federal district court in Oakland, California, has determined. The NCAA’s motion to stay enforcement was therefore granted in part (O’Bannon v. National Collegiate Athletic Association, May 20, 2016, Wilken, C.).

The district court ordered the NCAA to pay the athletes $40.79 million in attorney fees and $1.54 million in costs. The NCAA, however, has asked the Supreme Court to review a decision entered by the U.S. Court of Appeals in San Francisco, affirming that NCAA rules prohibiting student-athletes from being paid for the use of their names, images, and likenesses were unreasonable restraints of trade.

The NCAA consequently moved to stay enforcement of the judgment pending appeal without bond. Although the district court found that the NCAA is not required to obtain a bond, the court concluded that the NCAA is required to place $9,088,526.38—the undisputed amount of attorney fees and costs—in an escrow account under mutually agreed terms. If the Supreme Court affirms the finding of antitrust liability, the amount will be paid to plaintiffs immediately, according to the court, even if litigation concerning the remedy for the attorney fees and costs continues.

The questions currently before the Supreme Court are: (1) whether the Ninth Circuit holding that NCAA rules defining “the eligibility of participants” in NCAA-sponsored athletic contests, NCAA v. Board of Regents of Univ. of Okla., 468 U.S. 85, 117 (1984), violated the Sherman Act; and (2) whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the realistic portrayal of a person in an expressive work (here, a student-athlete in a college-sports videogame).

The case is No. C 09-3329 CW.

Attorneys: Christopher L. Lebsock (Hausfeld LLP) and Jon T. King (Hagens Berman Sobol Shapiro 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.

MainStory: TopStory PublicityRights CaliforniaNews

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