A recent Law 360 story, “NCAA Dodges $41M Fee Bond in Players’ Likeness Appeal,” reports that a California federal judge ruled that the NCAA needn’t set aside $41 million in attorneys' fees as it appeals a ruling that college athletes have the right to be compensated for use of their likenesses, but said an uncontested amount of about $9 million must be put in escrow.

Eschewing an in-depth discussion of the matter, U.S. District Judge Claudia Wilken granted the National Collegiate Athletic Association’s request not to post bond while it appeals the court’s March ruling that the college sports governing body must pay $40.8 in attorney’s fees and $1.5 million in costs.  However, the judge said a portion of the fees and costs award, approximately $9.1 million, must be put into escrow since that amount is not disputed by the parties.

As an additional caveat, Judge Wilken said that if the U.S. Supreme Court ultimately decides that the NCAA is liable in the underlying antitrust suit, the full amount would need to be paid immediately, regardless of whether the fees appeal remains pending.

An attorney for the players, Sathya S. Gosselin of Hausfeld LLP, said he and his clients were satisfied with the result.  "We are pleased with Judge Wilken’s ruling and look forward to bringing this protracted dispute to an end," he said.

A U.S. magistrate judge in July order the NCAA to pay more than $44 million in fees and more than $7 million in costs to the players, who in August 2014 won a judgment lifting NCAA rules that barred them from being paid for the use of their names, images and likenesses.  The fees were later reduced.

The NCAA appealed the judgment to the Ninth Circuit, which in September 2015 partially reversed, finding that athletes did not have to be paid beyond the cost of attending college.  The NCAA is now appealing the fee award to the Ninth Circuit and recently asked the U.S. Supreme Court to review the underlying case.  The players, who were denied an en banc rehearing on the reversed portion of the judgment, filed in March for a high court review of the reversal.

Last month, the NCAA asked the court for a stay of its obligation to post a bond in the amount of the fees and costs it owes, saying its $900 million in annual revenues and $650 million in liquid assets mean it will have no trouble finding cash should it still owe payment once it exhausts its legal options.  The players argued that this was no excuse for not putting up a bond, saying there was no guarantee the NCAA would continue enjoying its positive financial position.

In its reply filed May 10, the NCAA pointed out that its revenue has grown every year since 2001 and that it recently inked an $8.8 billion media rights contract extension that runs until 2032.  “In light of these facts, the possibility that the NCAA will be unable to pay the attorneys’ fee award at the conclusion of this litigation is remote, at best,” the reply said.  “Therefore, it does not matter how the amount of the attorneys’ fee award is used in the interim, as it essentially amounts to a zero-sum game for plaintiffs.”

The organization offered to provide written assurances that it would pay the fee award within 30 days of the litigation’s resolution, and also offered to advise the court and the players every 90 days of any major financial changes.  The NCAA noted that taking out a surety bond would cost it over $500,000, and said that placing the money in escrow would mean it wasn’t being used for its intended purpose.  Judge Wilken ordered the NCAA to provide a report to the court every three months as to its financial condition.