Law v. National Collegiate Athletic Ass'n

• Citation: 134 F.3d 1025
• Decision Date: 23 January 1998
• Docket Number: Nos. 96-3150,96-3186 and 96-3200,s. 96-3150
• Parties: 1998-1 Trade Cases P 72,046, 124 Ed. Law Rep. 33, 98 CJ C.A.R. 618 Norman LAW, Andrew Greer, Peter Herrmann, Michael Jarvis, Jr., Charles M. Rieb, Doug Schreiber, Lazaro Collozzo, Robin Dreizler, Frank Cruz, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant. Norman LAW, Andrew Greer, Peter Herrmann, Michael Jarvis, Jr., Charles M. Rieb, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1025

134 F.3d 1025

1998-1 Trade Cases P 72,046, 124 Ed. Law Rep. 33,

98 CJ C.A.R. 618

Norman LAW, Andrew Greer, Peter Herrmann, Michael Jarvis,

Jr., Charles M. Rieb, Doug Schreiber, Lazaro Collozzo, Robin

Dreizler, Frank Cruz, on behalf of themselves and all others

similarly situated, Plaintiffs-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant.

Norman LAW, Andrew Greer, Peter Herrmann, Michael Jarvis,

Jr., Charles M. Rieb, individually and on behalf

of all others similarly situated, Plaintiffs-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant.

Nos. 96-3150, 96-3186 and 96-3200.

United States Court of Appeals Tenth Circuit.

Jan. 23, 1998.

William C. Barnard (Donald C. Biggs, Gayle A. Reindl and Mary T. Doherty, also of Sommer & Barnard, Indianapolis, IN; John J. Kitchin and Linda J. Salfrank of Swanson, Midgley, Gangwere, Kitchin & McLarney, Kansas City, MO, with him on the briefs), for Defendant-Appellant.

W. Dennis Cross (Lori R. Schultz, also of Morrison & Hecker, Kansas City, MO; Robert G. Wilson of Cotkin & Collins, Los Angeles, CA; and Gerald I. Roth, Allentown, PA, with him on the briefs), for Plaintiffs-Appellees.

Before EBEL, LOGAN and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

Defendant National Collegiate Athletic Association (NCAA) has filed interlocutory appeals of the district court's orders imposing interim attorneys' fees (Nos. 96-3150 and 96-3186) and sanctions (No. 96-3200) in this antitrust action.

Plaintiffs are "restricted earnings" college sports coaches who alleged that an NCAA rule limiting their compensation violated Section 1 of the Sherman Anti-trust Act, 15 U.S.C. §§ 1-7. The district court granted summary judgment for plaintiffs on liability, leaving significant issues related to damages for later determination. When the court believed the NCAA was about to act contrary to the summary judgment order, it permanently enjoined the NCAA from enforcing its compensation limits. The NCAA appealed the permanent injunction which we affirm today in a separate opinion. See Law v. NCAA, 134 F.3d 1010 (10th Cir.1998).

I

Nos. 96-3150 a

nd 96-3186

After determining that plaintiffs were entitled to interim attorneys' fees as substantially prevailing parties, in an order entered April 18, 1996, the district court ordered the NCAA to pay by April 29 the sum of $380,682.82 in attorneys' fees plus expenses. That order directed the parties to consult to determine the fees due to another of plaintiffs' law firms and ordered the NCAA to pay those fees also by April 29. Instead of paying, the NCAA filed an appeal on April 29 (No. 96-3150). In a May 3 hearing the district court set the amount and ordered payment of those attorneys' fees it had not determined in its April 18 order. The NCAA appealed that decision on May 20 (No. 96-3186). We hold that under the particular circumstances of this case we have discretion to hear the appeals of the interim attorneys' fees awards. We exercise that discretion to accept the appeals and affirm the awards.

An award of interim attorneys' fees is not a final order and thus generally is not appealable. See, e.g., Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987); Hastings v. Maine-Endwell Cent. Sch. Dist., 676 F.2d 893, 895-96 (2d Cir.1982); Ruiz v. Estelle, 609 F.2d 118, 119-20 (5th Cir.1980). Under the collateral order doctrine, however, such orders may be appealed if a party is ordered to pay fees immediately and there is a likelihood that party will not be able to recover those fees if the case is reversed on appeal. See, e.g., Palmer v. City of Chicago, 806 F.2d 1316, 1320 (7th Cir.1986). The NCAA concedes that the interim fee awards here do not meet the requirements of the collateral order doctrine. Instead, it argues that we have pendent appellate jurisdiction to review the awards because the NCAA has filed a valid appeal of the court's permanent injunction order. See Snell v. Tunnell, 920 F.2d 673, 676 (10th Cir.1990) (holding that we had pendent appellate jurisdiction over an otherwise nonappealable district court decision that was closely related to an appealable decision).

A recent decision of the Supreme Court, Swint v. Chambers County Comm'n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), held that interlocutory appeals should be limited to those expressly provided for by Congress, including (1) under 28 U.S.C. § 1292(b) when a district court certifies an issue for immediate appeal; and (2) pursuant to rules created by the Supreme Court according to its authority from the Rules Enabling Act. Id. at 45-48, 115 S.Ct. at 1209-11. The Court expressed a concern that even if there were practical considerations of judicial economy supporting appellate jurisdiction "a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay ... collateral orders into multi-issue interlocutory appeal tickets." Id. at 49-50, 115 S.Ct. at 1211. The Court, however, left open the possibility of pendent appellate jurisdiction if an otherwise nonappealable decision is "inextricably intertwined" with the appealable decision, or if review of the nonappealable decision is "necessary to insure meaningful review" of the appealable one. Id. at 51, 115 S.Ct. at 1212.

In Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir.1995), we addressed the extent to which Swint narrowed pendent appellate jurisdiction. The plaintiff in Moore sued a city and its police chief under § 1983 alleging that plaintiff was demoted for statements he made during a public meeting, in violation of his First Amendment rights. Both defendants appealed the district court's denial of their summary judgment motion in which they asserted that there was no First Amendment violation and that the chief was entitled to qualified immunity. We had jurisdiction, under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), to review the chief's appeal of the summary judgment order denying him qualified immunity. Addressing that appeal, we held the chief was entitled to qualified immunity because the plaintiff failed to show a violation of his First Amendment rights. The city, of course, was not entitled to qualified immunity. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Hence we could consider its appeal only if authorized under pendent appellate jurisdiction as "inextricably intertwined" with the other appeal.

Addressing whether we could or should exercise jurisdiction over the city's interlocutory appeal, we recognized first that whether to exercise pendent appellate jurisdiction is a matter for the discretion of the appellate court. Moore, 57 F.3d at 929; see also In re: Tutu Wells Contamination Litigation, 120 F.3d 368, 382 (3d Cir.1997) ("The doctrine of pendent appellate jurisdiction, in its broadest formulation, allows an appellate court in its discretion to exercise jurisdiction over issues that are not independently appealable but that are intertwined with issues over which the appellate court properly and independently exercises its jurisdiction."). In Moore we concluded that "a pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal--that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well." 57 F.3d at 930. We then reasoned that the city's appeal was "inextricably intertwined" with the individual defendant's appeal because our holding that plaintiff did not establish a First Amendment violation by the police chief disposed of plaintiff's First Amendment claims against the city. Hence, we accepted jurisdiction and ruled in favor of the city.

In the instant case the only issue in the NCAA's appeal of the permanent injunction (No. 96-3034) was the correctness of the district court's summary judgment order finding the NCAA liable for a violation of the antitrust laws. ¹ We, of course, have now upheld the district court's determination on that issue. Our resolution of that issue also determines the merits of the appeals of the awards of interim attorneys' fees, because the only issue the NCAA raises in those appeals is whether plaintiff was a prevailing party. ² Plaintiffs were certainly the prevailing parties in the district court, based on the court's summary judgment determination in their favor; but the NCAA hoped to prevail on appeal and was resisting payment of the fees on that ground alone. Thus, as we held in Moore the two appeals are inextricably intertwined. ³

There are other issues that might have been raised in an appeal of interim attorneys' fees. Had the amount been contested or other issues raised this would have constituted one of those parlays "into multi-issue interlocutory appeal tickets" condemned in Swint. See 514 U.S. at 49-50, 115 S.Ct. at 1211-12. In the instant case, however, the NCAA did not contest the reasonableness of the fees or raise any other issue that would prohibit our taking jurisdiction. Therefore, we exercise our discretion to accept the appeals. Because we have affirmed the district court's determination that the restricted earnings coach policy the NCAA imposed on its member institutions violates the antitrust laws and because the parties agree that a prevailing plaintiff in an antitrust action is entitled to reasonable attorneys' fees under Section 16 of the Clayton Act, 15 U.S.C. § 16, we AFFIRM the interim attorneys' fee awards.

II No. 96-3200

The NCAA also appeals the sanctions imposed by the district court for its failure to pay the interim attorneys' fees by the April 29, 1996 date the court ordered. We hold that we have jurisdiction over the appeal of the sanctions. We find the daily fines imposed on the NCAA for the period...