From its creation, the exact nature and composition of the FCAA has been something of a mystery. The intent is to collect licensing revenue for players after their college careers, says Feinberg, who is helping organize the entity and, along with Vaccaro and Huma, was a founding board member. Hausfeld says he set up the FCAA as a vehicle for a potential settlement in the O'Bannon case, in case the NCAA agreed to distribute licensing revenue to athletes. He acknowledges that the organization could be used to market current college athletes should the regulations change. Hausfeld wants to be the FCAA's lawyer, which could put him in position to negotiate everything from TV contracts with ESPN to gaming agreements with EA Sports. "What the FCAA is saying is, 'We will go out and get enough of the athletes to create a critical mass so that if someone wants a group license we can deliver it,'" he says.
The FCAA's existence surfaced in a 2013 wrongful termination suit filed by Jon King, who for three years served as Hausfeld's lead investigator on the O'Bannon case. King claimed that, when asked about the FCAA by other lawyers at the firm, Hausfeld replied: "It's a revenue stream for us." According to the lawsuit, some lawyers expressed concerns that the FCAA created a potential conflict of interest by "creating a business that [Hausfeld] ultimately intended to be a for-profit licensing entity" and that he was using the O'Bannon case "to obtain that source of ongoing profits for the firm."
King had been fired on Oct. 3, 2012, for what he claimed were concerns he raised about potential ethical violations at Hausfeld LLP, including the FCAA issue. Hausfeld denied any improprieties and said King's dismissal was performance-based. The lawsuit was dismissed and sent to an arbitrator. Before a scheduled hearing, King surrendered. The agreement he signed -- and which was accompanied by an order issued by the arbitrator -- states that he "now understands that the claims previously asserted ... were incorrect" and "acknowledges that he has apologized" to Hausfeld and each of his partners. In an interview, King, who now works for a rival firm, said he dropped the suit because he feared he would be on the hook for more than $400,000 in legal fees if he lost. But he repeated his assertion that he and others felt Hausfeld's involvement with the FCAA was a potential conflict of interest.
Hausfeld says he has "no relationship economically" with the FCAA. Nor, he says, is it a "lock" that he will become the organization's outside counsel. "I'm floating just like anyone else," he says. But Feinberg concedes that Hausfeld is a favorite, given the sweat equity invested.
Hausfeld is also well-positioned to represent players in future sports litigation, including, potentially, hundreds or even thousands of individual cases that might grow out of the O'Bannon decision. In April, he announced that he and famed lawyer David Boies were forming a joint sports law group. Among other things, Boies and Hausfeld are seeking to become outside counsel to the NBA players' association.