(CN) – A lawyer says he is entitled to $4.6 million in attorneys’ fees from NCAA athletes’ $40 million settlement with video game maker Electronic Arts because he brought up the right-of-publicity theory used in the case.
Timothy McIlwain represented National Football League hall of fame running back Jim Brown against Electronic Arts in 2008, and applied a similar right-of-publicity theory in a class action led by ex-Rutgers quarterback Ryan Hart. Hart fired McIlwain in 2013, claiming that his attorney did not inform him of Electronic Arts’ settlement offer. McIlwain disputes Hart’s version of events.
In August, U.S. District Court Judge Claudia Wilken granted final approval to the $40 million settlement between current and former college athletes and Electronic Arts.
The agreement encompasses NCAA basketball and Division I football players whose names, images or likenesses appeared in EA video games between May 4, 2003 and Sept. 3, 2014, and includes several major lawsuits against EA and the Collegiate Licensing Company over the use of student-athletes in NCAA-themed games without compensation.
Attorneys for the players will receive $12 million of the $40 million award, to be divided among Hausfeld LLP, Hagens Berman Sobol Shapiro LLP, The McKenna Law Firm LLC and Lum, Positan & Drasco LLP.
Wilken said she would issue a separate order regarding the allocation of the attorneys’ fee award among counsel, but has yet to do so. The four firms will also share in a $2.1 million award for expenses, with McIlwain to receive $45,000.
McIlwain sued Hagens Berman Sobol Shapiro and attorneys Steve Berman, Robert Carey, Leonard Aragon and W. Mark Lanier in New Jersey Superior Court on Sept. 23. McIlwain says he “originated the right of publicity theory of liability for athletes against video game maker Electronic Arts.”
In his complaint, McIlwain says the law firm “reneged on” their prior agreement with him when Hart fired him. The parties had allegedly agreed to split a fee award to Hagens Berman 60-40, and to add McIlwain as counsel to a separate case that settled for an additional $20 million.
“As a result of defendants Hagens Berman et al. breach of contract, plaintiff has been damages as he has suffered substantial economic losses in amount to approximately $4,620,000 or an amount to be proven at trial,” McIlwain’s lawsuit states.
McIlwain is representing himself in the suit. He did not immediately respond to a request for comment.
Aragon told Courthouse News that attorneys went back to the drawing board after Hart fired McIlwain. The Hagens Berman attorney said McIlwain was “along for the ride.”
“Someone else wrote his appellate brief and he did little at trial except get his case dismissed. And soon after, it became clear to the parties to settle the case. I’m not sure he’s entitled to anything but the most minimal fees at all,” Aragon said.
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