PASADENA, Calif. (CN) – The National Collegiate Athletic Association fought a $40 million attorney fee award at the Ninth Circuit on Thursday, in an antitrust class action by former student-athletes who said the organization forced students to sign their rights away while reaping the benefits of licensing and merchandise agreements.
The federal case played out in court for six years as the student-athletes challenged the makers of sports video games, a college licensing company and the NCAA.
Former UCLA basketball star Edward O’Bannon claimed in the 2009 federal class action that students were forced to sign away the rights to their own images if they wanted to play NCAA sports.
Like many other former athletes, O’Bannon’s collegiate career is archived in video footage, photographs and that content is sold through merchandising deals.
In their class action, the former athletes said NCAA’s backlog of archived footage is estimated to be valued in the billions of dollars.
Additional defendants included video game publisher Electronic Arts and Collegiate Licensing Company.
In 2015, a Ninth Circuit upheld U.S. District Judge Claudia Wilken’s finding that the NCAA violated antitrust laws with rules that were more restrictive than necessary. But the Ninth Circuit did not agree with Wilken’s order awarding college athletes $5,000 for each year they played in college.
The appeals court instead said NCAA schools could cover the cost of tuition, but the student-athletes were not entitled to additional cash.
In 2016, Wilken ordered the NCAA to pay about $42.3 million in attorneys’ fees and other costs – later lowered to just over $40 million – and the NCAA made a failed bid to bring the case the Supreme Court.
Fighting the fee award at the Ninth Circuit on Thursday, NCAA attorney Gregory Curtner from Riley Safer Holmes & Cancila said plaintiffs adopted a winner-take-all approach in their antitrust class action on Thursday before the three-judge panel.
“A Game of Thrones approach. There was no middle ground,” said Curtner, who noted the student-athletes sought to revolutionize intercollegiate sports, failed, and aren’t entitled to a fee award.
“They’re entitled to nothing,” Curtner said bluntly.
The student-athletes’ attorney Jonathan Massey from Massey & Gail said the case was a hard-fought class action that didn’t just end with “a narrow injunction.” When analyzing the degree of success in the for a fee award, Massey said the Ninth Circuit panel should keep in mind that not all claims need to be successful.
“We think this court has established that it’s OK to lose sometimes,” said Massey. “You don’t have to win every single claim in order to be entitled fees for all of the claims.”
The panel was made of Chief Circuit Judge Sidney Thomas, Circuit Judge Jay Bybee and Senior U.S. District Judge Gordon Quist sitting by designation from the Western District of Michigan. The panel did not say when they would make their decision.