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NCAA Legal Chief Remy Prepares to Depart as Legal Bills Rise

April 30, 2021, 9:30 AM

The National Collegiate Athletic Association will lose its top lawyer if the U.S. Senate confirms his nomination as deputy secretary for the Department of Veterans Affairs.

The Biden administration on April 23 announced the nomination of Donald Remy, a former U.S. Army captain who is the NCAA’s chief operating and legal officer.

Remy’s nomination comes after the NCAA, which is facing existential threats to its business model from college athletes seeking compensation for their play, revealed in an annual Form 990 financial statement filed with the Internal Revenue Service in late January that it paid more than $26.3 million in legal fees to two law firms during the one-year period from Sept. 1, 2018, through Aug. 31, 2019.

The attorney fees—more than $17.3 million to what was then Wilkinson Walsh, and over $6.3 million to Skadden, Arps, Slate, Meagher & Flom—appear to be the highest-ever disclosed in a Form 990 filed by the Indianapolis-based nonprofit.

The NCAA didn’t respond to a request for comment about the fees or whether it has a succession plan in place for Remy, who joined the organization a decade ago.

Remy, a former deputy assistant attorney general in the Justice Department’s civil division during the Clinton administration, didn’t respond to a request for comment.

Prior to joining the NCAA in January 2011, Remy was a partner at Latham & Watkins in Washington. He previously served as chief compliance officer, deputy general counsel, and vice president of litigation for the Federal National Mortgage Association, the government-backed mortgage giant better known as Fannie Mae.

Remy, a Louisiana native, started his legal career in 1991 as an assistant to the general counsel of the Army. It was during that time that he crossed paths with Beth Wilkinson, a future high-profile litigator and fellow member of an Army honors program at the Pentagon and Reserve Officers’ Training Corps.

Wilkinson, who began her own legal career as a commissioned officer in the Judge Advocate General’s Corps, would go on to work at the Justice Department—she led the prosecution of Oklahoma City bomber Timothy McVeigh—before becoming general counsel at Fannie Mae and co-chairing Latham’s white-collar practice.

In 2016, Wilkinson left the partnership at Paul, Weiss, Rifkind, Wharton & Garrison to form Washington’s Wilkinson Walsh, now called Wilkinson Stekloff.

The firm is currently representing the NCAA—along with Skadden and Wilmer Cutler Pickering Hale and Dorr—in a dispute before the U.S. Supreme Court over athletic scholarship caps, and it’s handling several other matters for the nonprofit.

Wilkinson declined to discuss her firm’s work for the NCAA and Skadden didn’t respond to a request for comment about its representation of the organization.

Federal tax filings by the NCAA show that it has paid at least $37 million in legal fees to Skadden since fiscal 2014. Latham, Remy’s former firm, has received almost $40.7 million from the NCAA since 2012, per tax records.

Lengthy Litigation Docket

Latham has handled nearly 70% of the NCAA’s federal litigation work within the past five years, according to Bloomberg Law data. That metric slips to a little over 30% when going back to 2007.

Other top firms representing the NCAA in court include Hogan Lovells; Munger, Tolles & Olson; and Orrick, Herrington & Sutcliffe.

Lawyers handling litigation for the NCAA have occasionally switched firms in recent years, but Latham and Skadden have grabbed the lion’s share of the work until Wilkinson Stekloff entered the fray.

A Bloomberg Law analysis of the NCAA’s litigation docket shows that Wilkinson’s firm was brought in to try an antitrust case filed against the organization by former West Virginia University football player Shawne Alston.

The case, which Skadden and Wilmer are also handling for the NCAA, is now pending before the Supreme Court.

Wilkinson Stekloff is working by itself on a separate antitrust suit filed by Grant House, a former Arizona State University swimmer. House, like many college athletes, is using litigation—and plaintiffs lawyers looking for an NCAA pay day—to help him win the right to profit from his name, image, and likeness.

Wilkinson Stekloff’s $17.3 million windfall from the NCAA during 2018 and 2019 is attributable to the firm’s work in some of those matters, as well as its successful representation of the organization in beating a defamation suit filed by assistant college football coach Todd McNair.

The case, which the NCAA won at trial in 2018, was reversed on appeal this year. Wilkinson Stekloff and Munger Tolles are representing the NCAA as it prepares for a potential retrial in the dispute.

Day-to-day legal matters at the NCAA are handled by Scott Bearby, who has been its general counsel since Remy took on the additional role of COO in 2019. The NCAA’s most recent tax records reveal that Bearby earned $413,650 from the organization that prior fiscal year, while Remy received over $1.3 million in total compensation.

The NCAA’s tax filings show it also paid roughly $542,000 to its vice president of enforcement, Jonathan Duncan, and nearly $651,000 to former executive vice president for regulatory affairs Oliver Luck. The latter, an attorney, left the NCAA in 2018 to become commissioner of the now-defunct XFL.

As for Remy, if confirmed by the Senate, he would be only the second Black veteran to hold the No. 2 position at the at the department. Remy was nominated by the Obama administration in 2009 to be general counsel for the Army but withdrew his candidacy due to political controversy over his work at Fannie Mae.

Remy could join a Biden administration that earlier this year tapped veteran National Labor Relations Board lawyer Peter Sung Ohr to serve as the regulator’s acting general counsel. Ohr, a former Chicago regional director, made headlines in 2014 for holding that Northwestern University football players had the right to unionize.

While the NLRB overruled that decision, Ohr’s ruling brought attention to a brewing battle between college athletes and the NCAA.

To contact the reporter on this story: Brian Baxter in New York at bbaxter@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com
John Hughes in Washington at jhughes@bloombergindustry.com

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