A United States Magistrate Judge in Northern California relied on the Game of Thrones where there is no “Middle Ground” in rendering his decision to award attorneys’ fees for the work spent on all claims brought by former student athletes against the National Collegiate Athletic Association (“NCAA”).  The student athletes were victorious on certain claims and damages, but not others.  For all of you basketball fans, the marquee plaintiff for the case was Ed O’Bannon.

Some of you, like me, may be going through withdrawal from watching Game of Thrones and are frustrated that we will not be able to see the final season until 2019.  This may be why I focused on this dispute and am blogging about it.  Unfortunately, I have no official spoilers to share with you about the show other than that actor Kit Harrington also known as Jon Snow was seen in Croatia filming.  This likely means the new season of Game of Thrones will have a Cersei Lannister versus Jon Snow showdown in King’s Landing.  But, I digress.

The Magistrate Judge invoked the widely popular show to explain why even though the student athletes had not prevailed on all of their claims against the NCAA they should receive attorneys’ fees incurred for all claims.  The Magistrate Judge held that the attorneys for the student athletes should be awarded $42 million in attorneys’ fees.

The main claim was that the NCAA violated Section 1 of the Sherman Act by conspiring to exclude them from the collegiate licensing market.  The reasoning behind these type of fee awards is to encourage attorneys to take cases where the plaintiffs may not have the money otherwise to bring them.

Through the lawsuit, the student-athletes successfully protected their publicity rights. They obtained injunctive relief but did not obtain an award for deferred cash payments.  Specifically, the injunction prohibited the NCAA from using the student athletes’ right of publicity (names, images and likeness).  Further, the NCAA made voluntary changes to its system as a result of the lawsuit.

We have previously blogged about rights of publicity here and here.

In its appeal, the NCAA has argued to the Ninth Circuit that it should reject the $42 million fee award to the attorneys for the student athletes.  The NCAA argues that the student athletes won considerably less than what they sought in the lawsuit.  Further, the students were denied any deferred cash payments.  The student athletes failed on multiple claims, including collegiate licensing theory, and no damage class was certified.  The NCAA argues that the attorneys for the student athletes should not be entitled to any fees whatsoever, or at most, substantially less than the $42 million awarded.

Do you think the Ninth Circuit judges are fans of Game of Thrones and will uphold the Magistrate Judge’s “no middle ground” award of attorneys’ fees?