A recent Law 360 story by Darcy Reddan, “NCAA Athletes Fire Back at $41M Fee Objection,” reports that student-athletes suing the NCAA over alleged anti-competitive caps on scholarships pushed back against the single objection to their $209 million settlement over a $41 million cut for attorneys, saying the fee is less than established Ninth Circuit precedent.
 
The class of student-athletes fired back at the lone objector, NCAA Division I football player Darrin Duncan, citing a 25 percent benchmark for assessing the fairness of a fee award set by the Ninth Circuit after Duncan called the request unfair.  Duncan also cited a “mega fund rule” that the class argues runs contrary to established circuit law and if applied would give attorneys less incentive to take cases with inherent risk.

“Duncan simply arbitrarily argues that the fee award should be lower, unsupported by Ninth Circuit law.  And the facts here show that the fee request is reasonable,” counsel for the class said in the filing.  “The fact that Duncan is the only, lone objector also indicates the reasonableness of the fee request.” 

Aside from challenging Duncan’s arguments, the class pointed out that Duncan allegedly objected to other settlements before the court, including O’Bannon v. NCAA and Keller v. Electronic Arts Inc. et al.  In September, Duncan objected to a $41.7 million fee request for the $209 million settlement reached in March.  The lawsuit challenged NCAA rules that prohibit universities from paying students more than a full grant-in-aid, which covers up to the full cost of attendance.  Duncan had argued that the percentage of the award, 20 percent of the settlement, was too high and that a “mega fund rule,” which decreases fee awards as the settlement total increases, should be applied.

The class fought back against this logic, though, stating in the filing that a Ninth Circuit ruling, Fischel v. Equitable Life Assur. Soc’y of the United States, established a 25 percent benchmark as a starting point for evaluating fees that is then subject to five factors.  The class contends that the award is fair when analyzed under these criteria.  The five factors include the results of the case, risk and complexity, whether fees were contingent upon success, similar case results and whether the class was notified of the requested fees.

The class also said that reducing the award simply due to the size of the award “has the potential to disincentivize counsel from risking pursuing even larger awards for the class.”

The request is for approximately $41.7 million in fees, or 20 percent of the settlement's common fund, as well as nearly $3.2 million in costs and expenses, and $20,000 each as an incentive award for the four class representatives.  The rest of the class is entitled to an average of $6,000.

The class characterized the rest of the objection as “absurd,” pointing out that Duncan suggests “subtle signs of collusion” despite the fact that a mediator was used during the settlement process and there is a lack of a clear sailing provision in the settlement terms.

The cases are In re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, case number 4:14-md-02541, and Jenkins et al. v. National Collegiate Athletic Association et al., case number 4:14-cv-02758, both in the U.S. District Court for the Northern District of California.