A recent Law 360 story by Matthew Perlman, “9th Circ. Affirms $42M Fee Award in NCAA Damages Deal,” reports that the Ninth Circuit cleared the way for a nearly $209 million settlement between athletes and the NCAA over claims it unlawfully capped compensation, affirming a $42 million fee award despite objections from a former Division I football player. In a seven-page unpublished memorandum, the appellate panel affirmed the award over the contention of former Western Michigan University wide receiver Darrin Duncan that 20% of the settlement fund is excessive. The panel said the district court was right to reject Duncan’s objections because the percentage is lower than those in similar cases and because the counsel’s efforts led to the “exceptional, mega-fund results.”
“The district court did not abuse its discretion in finding that the large size of the settlement fund did not warrant a reduction of the 20 percent fee award,” the memorandum said. The panel noted that the settlement covers some 53,000 class members, and that those who played sports for four years will receive an average of $6,000 each. An attorney for the settling athletes, Steve Berman of Hagens Berman Sobol Shapiro LLP, told Law360 the appellate ruling was the last thing holding up payments for the class. “We are pleased with the outcome as the appeal has tied up the $208 million we have been waiting to distribute to the class,” Berman said. “We have been getting constant inquiries about distribution and now there is no roadblock to getting these student athletes paid.”
Duncan objected to the $41.7 million in fees awarded in district court and then filed an appeal with the Ninth Circuit in January 2018, according to court records. In addition to rejecting Duncan’s arguments about the percentage, the panel also brushed aside his contention that the $3.2 million in expenses should have been included in the calculation of the fee percentage. The panel said district courts are allowed to “calculate the percentage of attorney fees based on either the gross or net fund.” Duncan had also argued that the district court failed to properly crosscheck the fee award against the hours reported by the athletes’ counsel. But the panel found that wasn’t the case and that attorneys provided detailed records of the time spent on different aspects of the litigation.
“In addition, because the settlement only resolved plaintiffs’ claims for damages, the district court ordered counsel who had not already done so to specify whether their activities billed related only to such claims,” the memorandum said. After the settlement covering damages, claims from the players seeking to change the rules pressed ahead and went to trial last year.