A recent USA Today story, “O’Bannon Lawyers Fight Huge Fee Reduction Sought by NCAA,” reports that lawyers for the plaintiffs in the Ed O’Bannon antitrust class action against the NCAA, modestly self-reduced their attorney fees and expenses in the case.  However, they vociferously oppose the NCAA’s recent bid for a massive cut in fees and expenses, saying that the association’s efforts in that regard “again demonstrate its preference for scorched earth litigation.”

The plaintiffs’ lawyers – led by Michael Hausfeld’s firm, Hausfeld LLP – had originally sought nearly $50.9 million and they lowered that figure to just under $50 million.  Last month, however, the NCAA argued that they should receive less than $10 million.  The association claimed that the plaintiffs were only partially successful compared to the original scope of their case, making many of their attorney fees and expenses claims impermissible.  The NCAA also alleged that the plaintiffs’ fees and expenses resulted from inefficiency and overstaffing.

This past August, U.S. District Judge Claudia Wilken ruled that the NCAA’s limits on what major college football and Division I men’s basketball players can receive for playing sports “unreasonably restrain trade” in violation of antitrust laws.  She also issued an injunction that would create a system under which Bowl Subsection 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.”  The NCAA has appealed the ruling and the injunction to the U.S. Court of Appeals for the Ninth Circuit, which has scheduled oral arguments for March 17.

In the meantime, the NCAA has argued for a much lower fee award than the one requested by the plaintiffs.  It claims the plaintiffs changed their legal approach more than three years into the case that began in July 2009, and the plaintiffs’ lawyers essentially should not get paid for the work they did during those 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.

In addition, the NCAA alleged that the plaintiffs’ lawyers fee request included an array of impermissible charges and, in many instances, reflected unnecessary staffing of the case for depositions and for the three week trial last June.

The plaintiffs’ lawyers responded with a chart and other details that they say show 59 depositions “in which defense counsel’s attendance equaled or exceeded attendance by counsel” for the plaintiffs.  Rejecting the NCAA characterization of the scale of their success in the case, the plaintiffs’ lawyers wrote that Wilken’s ruling in the case “can only be viewed as a stellar result” for the plaintiffs.  They added that the NCAA now “seeks to re-litigate” the matter during the fee-setting phase – a tactic is said should be rejected “particularly given the NCAA’s repeated refusals to produce any information about its own legal expenditures or time records in this case.”

NALFA also reported on this case in “NCAA Challenges Over $40M in Fees/Costs in Antitrust Case” and “$50M in Fees/Costs at Stake in NCAA Antitrust Case” and “Lawyers Seek $52.4 in Ed O’Bannon NCAA Antitrust Case”