Lawyers behind NCAA concussion settlement request combined $21M in fees

By Jonathan Bilyk | Jan 18, 2017

Laywers behind the nationwide concussion lawsuit against the National Collegiate Athletics Association, which resulted in a $70 million settlement to improve “medical monitoring” of college football players and other athletes at risk of brain injuries, have now asked a Chicago federal judge to award them attorney fees of $15 million.

And another law firm, who represented an objector to the initial settlement and now claims their work added $50 million to the value of the settlement, has requested the court order an additional $6 million in fees.

On January 13, attorneys Steven W. Berman and Elizabeth A. Fegan, of the firm of Hagens Berman Sobol Shapiro LLP, of Seattle and Chicago; attorney Joseph J. Siprut, of Siprut P.C., of Chicago; attorney Richard Lewis, of Hausfeld LLP, of Washington D.C.; and attorney Charles Zimmerman, of the Zimmerman Reed, of Minneapolis, filed a motion in Chicago federal court, requesting the primary fee award for their work on behalf of a number of college athletes, named as plaintiffs in the legal action against the NCAA, as well as a class of additional plaintiffs.

That was accompanied on that same date by a motion for fees from attorneys Jay Edelson, Rafey Balabanian, Ari Scharg and Benjamin Thomassen, of Edelson P.C., of Chicago, who represented Anthony Nichols, a plaintiffs’ class member who objected to an initial version of the settlement.

The fee requests come amid some of the closing steps in the massive litigation launched against the NCAA in 2011, first in a lawsuit brought by former Eastern Illinois University football player Adrian Arrington, over its alleged mistreatment of college athletes who suffered concussions and other head and brain injuries while playing college football and other NCAA-sanctioned sports.

In January 2016, the NCAA and the plaintiffs submitted a settlement agreement to U.S. District Judge John Z. Lee which would end the litigation against the NCAA in exchange for the NCAA’s agreement to spend $70 million to institute a “Medical Monitoring Program” for current and former college athletes, and to institute other “corrective measures” to better address athletes’ health and safety when practicing and competing at official NCAA-sanctioned games and events.

As part of that settlement, the NCAA pledged not to object to paying plaintiffs’ attorneys fees of $15 million, and paying class representatives $2,500-$5,000 each.

In their motion for $15 million, the lead plaintiffs’ attorneys argued their fee request was “reasonable” because it represented only 21 percent of the sum the NCAA had agreed to invest in the medical monitoring program and the “class counsel” attorneys had “performed excellently.”

“Only after the significant labor of prosecution was completed did the NCAA seek to enter settlement negotiations,” the attorneys wrote in their fee request motion. “The settlement that Class Counsel has achieved is significant in terms of the scope and term of the Medical Monitoring Program made available to the Class; and, while Class Counsel seeks no compensation for this, the Settlement also provides for injunctive relief that will achieve significant changes going forward to the concussion management and return-to-play protocols implemented among the thousands of NCAA schools.”

In the additional fee request, however, the Edelson lawyers argued the settlement relief would have been “largely illusory,” if not for their work on behalf of Nichols.

They said an initial version of the settlement was “hastily reached and ill-considered,” and was structured in such a way that it could allow more than $50 million to revert back to the NCAA, while “creating a benefit of less than $200,000” for college athletes seeking to take advantage of the free brain screening and other services offered through a monitoring program Nichols’ lawyers described as “cumbersome and designed to deter participation in the settlement.”

They further alleged the earlier version of the settlement didn’t include sufficient player safeguards or extensive enough notice provisions to spread the word about the deal to enough former NCAA athletes.

They asserted Nichols’ objections were instrumental in sending the deal back out for more negotiation, and for persuading Judge Lee to not allow any of the $70 million to be returned to the NCAA, to roughly triple the number of medical monitoring sites across the country, and make it easier for former athletes to learn of the settlement and to access the monitoring program, among other changes.

The Edelson lawyers said these changes should equate to attorney fees of $10 million or more, but they are requesting $6 million.

“… At least $50 million, or more than two-thirds, of the settlement’s value can be traced to changes forced by Nichols’s objections,” the Edelson lawyers wrote.

They also asked the judge to award Nichols $5,000.

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Organizations in this Story

Edelson PC Hagens Berman Sobol Shapiro, LLP Hausfeld Llp NCAA Siprut P.C.

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