Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Response to Defendants' Motion for Judgment as a Matter of Law and requests that the same be denied. Pursuant to Fed.R.Civ.P. 50, Defendants have not met their burden of establishing that "there is no legally sufficient evidentiary basis" for a reasonable jury to find for Plaintiff on his right of publicity claim and award Plaintiff damages in the amount of $783,900.00. Defendants' Motion should be denied for the following reasons. I. JUDGMENT AS A MATTER OF LAW REGARDING LIABILITY. Defendants first argue that they are entitled to a judgment as a matter of law regarding liability and the jury's finding that Defendants GTFM, LLC and Harlem Globetrotters International, Inc. (hereinafter individually as "GTFM" and "HGI" or collectively as "Defendants") violated Plaintiff's right of publicity. Defendants base their argument that they
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Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW

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are entitled to judgment as a matter of law on several different legal theories: 1) Plaintiff consented to the use of his name through his conduct; 2) Plaintiff consented to the use of his name through his 1975 player contract because Mr. Jackson purchased the contract and the contract covered the FUBU apparel; and 3) Plaintiff consented to the use of his name pursuant to a collective bargaining agreement. Under Rule 50(a), a Court can enter a judgment as a matter of law following a jury verdict only if a pre-verdict motion is properly renewed. Fed.R.Civ.P. 50(b). After Plaintiff rested on February 6, 2007 Defendants made an oral motion for judgment as a matter of law. Then, at the close of that same trial day the Court held a conference regarding Defendants oral motion and denied the motion for judgment as a matter of law concluding "Plaintiff had presented sufficient evidence for his claim of violation of the right of publicity to go to the jury." (Order of 2/8/2007, Doc. #587). In other words, at the close of Plaintiff's case the Court determined that Plaintiff had presented sufficient evidence for a reasonable jury to be able to render a verdict in his favor on his claim for violation of right of publicity. See Fed.R.Civ.P. 50. However, by renewing their oral motion through their current Motion for Judgment as a Matter of Law, Defendants are arguing that the Court's ruling denying their prior motion was in error. Since the verdict was rendered in favor of Plaintiff, in ruling on the Motion for Judgment as a Matter of Law Plaintiff is entitled to have the evidence viewed in a light most favorable to him, resolving conflicts in his favor and giving him the benefit of reasonable inferences. Graves v. City of Coeur D'Alene, 339 F.3d 828, 833 (9th Cir. 2003). If reasonable minds could differ over the verdict, judgment as a matter of law is improper. Id. A district court must deny a
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motion for judgment as a matter of law if there is sufficient evidence to support the verdict. Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir. 1984). Because a judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored. Luciano v. The Olsten Corp., 110 F.3d 210, 214-15 (2d Cir. 1997). When

confronted with such a motion, the court must carefully scrutinize the proof with credibility assessment made against the moving party and all inferences drawn against the moving party. Id. Furthermore, an absence of evidentiary conflicts in proof in no way establishes that the moving party has borne its burden of proof as matter of law; it is the jury alone which must also draw conclusions from the facts. Arkwright Mut. Ins. Co. v Philadelphia Electric Co., 427 F.2d 1273 (3rd Cir. 1970). Defendants bear the burden of not merely showing that they introduced some evidence that was undisputed by Plaintiff, but must show that but one conclusion can be drawn from that evidence, and that conclusion is in their favor. Defendants Motion does not meet this burden. If the Court could not have granted a directed verdict, then a judgment notwithstanding the verdict would be error. Morgan v. Badger Mut. Ins. Co., 181 F. Supp. 496, 500-501 (D. Fla. 1960). The existence of a jury question would therefore preclude the granting of a motion for judgment as a matter of law. Id. A. There Is A Legally Sufficient Evidentiary Basis For A Reasonable Jury To Find That Plaintiff Did Not Consent To The Use Of Name Through His Conduct Over The Past 25 Years. Defendants incorrectly assert in their Motion "Plaintiff testified that he has monitored the Globetrotters' use of his name since the end of his playing career in 1979." Actually, Plaintiff's
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testimony was that he monitored what the Globetrotters or others do with his name "as much as he can." (See Defendants' Motion for Judgment as a Matter of Law (hereinafter "Motion"), pg. 1; See Ex. 4 attached to Motion at p. 106 lines 5-10). Through Plaintiff's monitoring of the Globetrotters use of his name, Plaintiff also testified at trial that Globetrotters had never before used his name and likeness on a clothing line being sold in retail stores. Although Defendants attempt to separate the two issues, Plaintiff's "conduct as consent" has to be looked at in context of his 1975 player contract, which only allowed use of Plaintiff's name and likeness in the same manner as it was used while he was a player. Plaintiff testified that the Globetrotters never sold any clothing with his, or any other player's, name and number on it while he was a player (although Plaintiff could not be completely sure whether or not the Globetrotters sold a team Tshirt at the basketball games that may have portrayed his likeness). However, Defendants never presented any evidence at trial that the Globetrotters did, in fact, sell t-shirts at games bearing Plaintiff's name or number while he was a player. Either way, the undisputed evidence was that: 1) the Globetrotters never licensed Plaintiff's identity for use on a commercial, retail clothing line; and 2) even if they may have sold a team t-shirt bearing Plaintiff's name or number, it was only at games. Again, that evidence was undisputed by Defendants at trial. Therefore, Plaintiff had nothing to complain about and his conduct regarding other uses (which were using his name and likeness in the same manner they were used when he was a player) have no bearing on whether he consented to the use of his name and likeness on the FUBU apparel.

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All testimony presented by Defendants was regarding other uses of Plaintiff's name and likeness, on products other than those like the FUBU apparel. Those other uses were permitted under Plaintiff's 1975 contract because they were putting Plaintiff's name and likeness to use in the same manner they were put to while he was a player. Therefore, Plaintiff had no reason to raise an objection with the Globetrotters regarding those uses. However, Plaintiff did present undisputed evidence at trial that soon after his discovery of the FUBU apparel, which used his name and likeness in a manner that was different from when he was a player, he consulted with counsel who notified Defendants of his objection. A reasonable jury had a sufficient evidentiary basis to conclude that Plaintiff's conduct did not amount to consent because the other uses presented by Defendants were allowed by his 1975 contract, so it was irrelevant that Plaintiff did not object. However, the FUBU use was impermissible under Plaintiff's 1975 player contract and the undisputed evidence was that he immediately objected to that use. Although Defendants argue that Plaintiff said nothing to Defendant Jackson about the FUBU clothing on the night Plaintiff was inducted into the Basketball Hall of Fame (or at a ceremony following the induction, at a charity golf tournament the next weekend, at a VIP dinner in Plaintiff's honor on the night of the charity golf tournament, or the next week at lunch at the Ritz Carlton) Defendants' argument proves nothing by way of being entitled to judgment as a matter of law. Plaintiff presented evidence that those `important public events' in which he was the guest of honor, were neither the time nor the place to discuss personal legal matters with Defendant Jackson. What did Defendants expect? That Plaintiff would stand up during his Hall of Fame Induction Ceremony and call out Defendant Jackson for his misdeeds ­ or cause a
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commotion during a VIP dinner held in Plaintiff's honor by letting Defendant Jackson know that what he was doing was wrong? There was evidence in the record regarding why Plaintiff did not raise the issue with Defendant Jackson at the inappropriate times pointed to by Defendants, that Plaintiff was in the process of consulting with counsel regarding his rights during those times, and that shortly after Plaintiff's discovery of the violation his counsel contacted Defendant Jackson to object to the FUBU apparel. Simply because there is some evidence in the record introduced by Defendants to support their theory only gets them a jury instruction on that defense; however, it does not require judgment in their favor as a matter of law. Since there was legally sufficient evidentiary basis for a reasonable jury to conclude that Plaintiff did not consent to the use of his name and likeness through his conduct, Defendants are not entitled to judgment as a matter of law. B. There Is A Legally Sufficient Evidentiary Basis For A Reasonable Jury To Find That Plaintiff Did Not Consent To The Use Of His Name Through His 1975 Player Contract Because Plaintiff's Player Contracts Did Not Authorize Such Use, And Even If They Did, Defendant Jackson Did Not Purchase Plaintiff's Player Contracts. First, Defendants argue "no reasonable juror could have found that HGI failed to purchase plaintiff's contract from HGI's predecessors." (Motion at p. 3). That argument is absurd because, as Defendants themselves point out, the Court had previously determined that the Asset Purchase Agreement was ambiguous. That fact alone precludes Defendants from receiving judgment as a matter of law. The terms of the Asset Purchase Agreement were open to

interpretation and could either support Defendants claim that Plaintiff's player contracts were purchased by HGI, or Plaintiffs claim that Plaintiff's player contract was not purchased by HGI.
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Therefore, the Asset Purchase Agreement by itself provided a legally sufficient evidentiary basis for a reasonable jury to find that Plaintiff's player contract was not purchased by HGI. Although Defendants argue the "sellers" (i.e., HGI's predecessors) testified that their intent was to "transfer all of the Globetrotter assets to HGI," there was no testimony from the sellers whether Plaintiff's former player contracts were included in those assets. The testimony from the sellers was ambiguous at best because there was not any testimony regarding what exactly comprised "all of the Globetrotter assets" and whether that included Plaintiff's former player contracts. To the contrary, testimony was presented from the sellers that they did not recall the issue of Plaintiff's former player contracts ever being discussed during the sale, and did not recall Mr. Jackson ever inquiring whether Plaintiff's former player contracts were included as an asset in the sale. Such testimony is extrinsic evidence regarding Defendant Jackson's intent at the time he purchased the Globetrotters and tends to show that he was neither concerned nor interested in whether any individual, specific former player contracts were a part of the transaction. Also, Defendant Jackson repeatedly testified that when he purchased the team his focus was on promoting the brand name "Harlem Globetrotters" and he was specifically rejecting the implementation of a "star system." Again, such testimony is also extrinsic evidence regarding Defendant Jackson's intent at the time that he purchased the Globetrotters and shows that he was not concerned with, nor interested in, whether he acquired any specific former player contract. Furthermore, the Asset Purchase Agreement itself is sufficient evidence for the jury to conclude that Defendant Jackson did not purchase Plaintiff's former player contracts. The jury
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had to go no further than the terms of the Asset Purchase Agreement to see that: 1) neither Plaintiff Lemon's, nor any of the other Plaintiffs' former player contracts were specifically mentioned anywhere in the Asset Purchase Agreement, although other player contracts were specifically listed as assets being transferred to Defendants HGI and Jackson; 2) under the section of the Asset Purchase Agreement where specific contracts to be included in the purchase were listed, neither Plaintiff Lemon's, nor any of the other Plaintiff's former player contracts were listed nor was any general categorical term such as "all former player contracts" or "all player contracts" even listed; and 3) within all of the extensive lists of specific assets included in the Asset Purchase Agreement, and even with all of the exhaustive detail regarding insignificant tangible property, Plaintiff's player contracts were not mentioned once anywhere in the Asset Purchase Agreement. Also, Defendant Jackson's own Business Plan is extrinsic evidence of his intent. Defendant Jackson's Business Plan, which he distributed to investors, did not mention ­ not even once ­ his belief that he owned Plaintiff's player contracts or the right to license Plaintiff's name and likeness for commercial endeavors. Defendant Jackson's Business Plan even had a section regarding "licensing" where he described to potential investors the possibilities regarding licensing rights for merchandising and the potential profit that could be made. Again, even in that section Defendant Jackson failed to mention his belief that he owned the rights to use Plaintiff's name and likeness. Defendant Jackson's Business Plan was further evidence that he was focusing on a brand system around the "Harlem Globetrotters" and was not interested in

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obtaining the rights to use any specific former player's name and likeness, including a "star" like Plaintiff. Defendants' argument fails because there is a legally sufficient evidentiary basis for a reasonable jury to find that Defendants HGI and Jackson did not purchase Plaintiff's player contracts and any licensing rights contained therein. Again, simply because there is some evidence in the record to support Defendants' theory does not mean that they are entitled to judgment in their favor as a matter of law, it merely gets their theory to the jury. Next, Defendants argue they are entitled to judgment as a matter of law because Plaintiff's 1975 player contract authorized the use of Plaintiff's name and likeness after he left the team "to the extent they are put to the same uses as they were put prior to such termination." By making this argument, Defendants are asserting that there is no legally sufficient evidentiary basis for a reasonable jury to find that the FUBU apparel was a "new" use, i.e., through the FUBU apparel HGI was using Plaintiff's name and likeness in a manner that it was not used during the time he was a player. However, there was sufficient evidence presented at trial to support the conclusion that the FUBU apparel was not authorized by Plaintiff's 1975 contract, and that Plaintiff's name and likeness on the FUBU apparel was different from the uses during the time he was a player. Although Defendants argue there was evidence presented at trial that Plaintiff's name and likeness were used in many different ways when he was a player, Defendants can point to no evidence in the record showing that Plaintiff's name and likeness was licensed for use on a commercial clothing line being sold in retail stores. Instead, the undisputed evidence at trial was
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that Plaintiff's name and likeness were never licensed for use on a commercial line of clothing to be sold in retail stores around the world. Defendants presented no evidence to the contrary. The fact that Plaintiff's name and likeness may have been used on Globetrotter programs sold at the games, basketball trading cards, posters, a record album cover, a viewmaster, a thermos, lunchboxes, comic books, in a cartoon, and in a board game, is completely irrelevant. It is also irrelevant that Plaintiff could not be completely sure whether the Globetrotters sold a team t-shirt at games portraying his likeness because Defendants never presented evidence that the Globetrotters did, in fact, sell t-shirts of that type at games. The FUBU apparel is a completely distinct and separate use than those set forth by Defendants. Plaintiff himself testified that he monitored what the Globetrotters or others do with his name "as much as he can." Through Plaintiff's monitoring of the Globetrotters use of his name, Plaintiff also testified at trial that Globetrotters had never before used his name and likeness on a commercial clothing line being sold in retail stores. Defendants did not counter that evidence and never asserted once during trial, through the presentation of any evidence, that Plaintiff's name and likeness was licensed by the Globetrotters for use on a commercial line of clothing sold in stores. If anything, Plaintiff would be entitled to judgment as a matter of law on this issue. At a minimum, it was for the fact finder to decide whether the FUBU apparel was using Plaintiff's name and likeness in a manner it was used while he was a player. Therefore, there was a legally sufficient evidentiary basis for a reasonable jury to find that Plaintiff's player contract did not authorize the use of his name and likeness on the FUBU apparel. As a result, Defendants are not entitled to judgment as a matter of law.
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C. There Is A Legally Sufficient Evidentiary Basis For A Reasonable Jury To Find That Plaintiff Did Not Consent To The Use Of His Name Pursuant To A Collective Bargaining Agreement. Defendants' entire argument that Plaintiff consented to the use of his name and likeness through the Collective Bargaining Agreement is based upon pretrial motions and pretrial filings, none of which were introduced at trial. What was stated in Plaintiffs' responses to Defendants' Motion in Limine and Plaintiffs' proposed non-model instruction no. 5 (which was not given to the jury) have no bearing whatsoever on Defendants' entitlement to judgment as a matter of law. Defendants fail to point to even one single piece of evidence introduced at trial which supports their entitlement to judgment as a matter of law. Being experienced attorneys, defense counsel should know that only evidence admitted during trial can suffice to support a verdict ­ nothing filed pretrial can serve as support for a judgment unless it was also admitted into evidence at trial. Given Defendants failure to point to any evidence introduced at trial that would support their entitlement to judgment as a matter of law regarding the CBA, Defendants have failed to meet their burden under Rule 50. As a result, Defendants are not entitled to judgment as a matter of law. In support of their request for judgment as a matter of law, Defendants rely solely on the argument that Plaintiff should not be allowed to change his position on an issue at any time during the litigation. Even though Defendants have failed to set forth any basis to support judgment as a matter of law on this issue, Plaintiff will do his duty to show that a legally sufficient evidentiary basis exists for a reasonable jury to find that Plaintiff did not consent to the use of his name and likeness through the CBA. Although the CBA itself was introduced into
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evidence, there was no testimony or other evidence presented at trial that the union currently exists or that the CBA was still in effect at the time HGI licensed Plaintiff's name and likeness for use on the FUBU apparel. Furthermore, there was absolutely no evidence presented that Defendant Jackson acquired the CBA when he purchased the Globetrotters or whether Defendant Jackson or Defendant HGI were bound by the CBA. In sum, there was no evidence presented at trial that the CBA was in effect at the time of importance and upon the parties in this litigation. Defendants did not carry their burden, in asserting the affirmative defense that Plaintiff consented through the CBA, to present such evidence. Instead, the evidence presented through testimony was that the Union disbanded and was dissolved long before Defendant Jackson acquired the Globetrotters. As a result of that

testimony and the lack of presentation of any evidence that the CBA was still in effect, a reasonable jury could conclude that the CBA did not apply in Plaintiff's case. Therefore, there is a legally sufficient evidentiary basis for a reasonable jury to find that Plaintiff did not consent to the use of his name and likeness through the CBA. Furthermore, Defendants' position in their Motion that `because plaintiffs advanced a position prior to trial that the CBA applies, plaintiffs were not allowed to later change that position' is directly contradictory to their own actions. If Defendants assertion that a party is not allowed to change its position on an issue during litigation were to ring true, then Defendants themselves are prevented from now making the argument that the CBA does apply. Defendants have argued throughout the litigation and in pretrial motions that the CBA did not apply, and through their own logic should not be heard to claim now that it does apply.
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In fact,

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Defendants submitted a Motion in Limine to Exclude Evidence Relating to a Players Union and argued that plaintiffs be prohibited from presenting the CBA as evidence because: "The existence of a union at the time Plaintiffs were Globetrotters is irrelevant to this case because there is no evidence the union currently exists or that collective bargaining agreements it once negotiated are still effective. There is no record that one party to the collective bargaining agreements, the United Basketball Players' Association ("UBPA"), still exists or has any successors...Even if it did, any obligations the team may have had under past collective bargaining agreements were extinguished with the team's bankruptcy in the early 1990s." (Doc. #504 at 2)(emphasis added) It was not until the middle of trial during the finalization of jury instructions that Defendants changed their position that the CBA did not apply and begin to argue that the CBA did apply. This was the first time Plaintiff heard of Defendants' new position that the CBA applied and that Plaintiff consented to the use of his name and likeness on the FUBU apparel through the CBA. Again, following Defendants own logic, they are now prevented from claiming that the CBA applies. It is curious that Defendants do not complain that Plaintiff changed his position at trial on the issues of Mrs. Jackson's liability, Plaintiff's entitlement to emotional distress damages, and Plaintiff's position that his player contracts were extinguished in the bankruptcy. Plaintiff's change in his position on those issues resulted in favorable rulings for Defendants: Mrs.

Jackson was dismissed as a defendant, no jury instruction regarding emotional distress damages for Plaintiff was given, and no jury instruction regarding whether Plaintiff's player contract was extinguished in bankruptcy was given. Defendants argue that Plaintiff cannot change his

position on an issue when his new position is detrimental to Defendants (the CBA), but can change his position on issues when those changes benefit Defendants (Mrs. Jackson, emotional
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distress damages, bankruptcy). Defendants' argument is absurd as it directly contradicts their own actions regarding the same issue. II. JUDGMENT AS A MATTER OF LAW REGARDING DAMAGES. Regarding Defendants request for judgment as a matter of law on the issue of damages, Defendants argue that Plaintiff would only be entitled to a nominal damages award because the jury failed to take into account GTFM's expenses and the jury ignored testimony that the FUBU sales were made because of factors other than the fact that Plaintiff's name was on the garment. A reviewing court must uphold a jury verdict if the evidence is sufficient with respect to any reasonable evidentiary theory; the fact that one possible evidentiary theory is unsupported by substantial evidence does not justify overturning the verdict. McCord v. Maguire, 873 F.2d 1271, 1273-74 (9th Cir. 1989)(emphasis added). Thus, it is not sufficient for Defendants to show there was evidence admitted at trial which supported their theory regarding damages; instead Defendants must establish that the evidence presented would not have enabled a reasonable jury to reach the verdict it did in this case. Defendants forget that it was their burden to establish, by a preponderance of the evidence, any portion of the sales that are attributable to factors other than the appropriation of the Plaintiff's identity and any expenses. Defendants repeatedly argue that Plaintiffs did not present contradictory evidence regarding costs or regarding whether consumers purchased the clothing because Plaintiff's name was on the clothing. Again, Defendants carried the burden of proving such items by a Accepting, arguendo, that the facts were

preponderance of the evidence, not Plaintiff.

undisputed, the absence of evidentiary conflicts in no way implies that Defendants have borne
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their burden of proof as a matter of law; it is the jury alone which must also draw conclusions from those facts. Arkwright Mut. Ins. Co. v. Philadelphia Electric Co., 427 F.2d 1273, 1275 (3rd Cir. 1970). Although Defendants presented a summary exhibit regarding costs and had

Daymond Aurum testify that, in the context of rap videos and concerts only, it does not matter what is on the back of a shirt, Defendants did not meet their burden. Reasonable minds can obviously differ regarding whether, to the everyday average consumer, it matters what is on the back of an article of clothing. Defendants had the duty to convince the jury that it was more likely true than not that their sales were attributable to factors other than the appropriation of Plaintiff's identity. Furthermore, reasonable minds could differ regarding whether Defendants' summary costs chart was sufficient to prove Defendants costs by a preponderance of the evidence. Defendants forget that they did not just have to show the jury they had costs, but they had to establish by a preponderance of the evidence exactly what the amount of those costs were. Even if Defendants provided proof that they had costs, the jury was entitled not to deduct anything for costs if the jury was not satisfied that Defendants had proved the exact amount of their costs by a preponderance of the evidence. As Defendants themselves state in their Motion for a New Trial at p. 6, the Court's instruction only required the jury to subtract for costs and other factors "assuming Defendants had proven them by a preponderance of the evidence." (emphasis added). If Defendants did not meet their burden, then pursuant to law and under the relevant jury instructions the jury was required to find that Defendants had not proved the amount of their
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costs. Furthermore, the jury would have been required to find that Defendants had not proved that factors other than the use of Plaintiff's identity attributed to the sales. In such a

circumstance, the jury may find that Defendants could not be contributed anything for costs and that all of the sales were attributable to the appropriation of Plaintiff's identity. As a result, there is a legally sufficient evidentiary basis for the jury's damages verdict in the amount of $783,900 ­ the total sales involving Defendants use of Plaintiff's name and likeness ($783,900 minus $0 for expenses and minus $0 for sales attributable to factors other than the appropriation of the Plaintiff's identity equals $783,900 in compensatory damages). That equation directly follows the Court's jury instructions regarding damages and, based upon the evidence presented at trial, would be well within the province of the jury to come to such a conclusion. Since a legally sufficient evidentiary basis exists for the jury's compensatory damages verdict, Defendants are not entitled to judgment as a matter of law under Rule 50. Since Defendants again argue this damages issue in their Motion for a New Trial on Liability and Compensatory Damages, for the sake of brevity Plaintiff would also incorporate his arguments set forth in his Response to the Motion for a New Trial as further support that Defendants are not entitled to judgment as a matter of law on the issue of damages. III. CONCLUSION. In sum, Defendants have asserted in their Motion that they are entitled to judgment as a matter of law on every single defense presented by them to the jury: 1) Plaintiff consented to the use through his conduct; 2) Plaintiff consented to the use through his 1975 player contract; and 3) Plaintiff consented to the use through the Collective Bargaining Agreement. In their
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Motion, Defendants have astonishingly argued that, regarding the issue of liability, the jury got it wrong three times and Defendants are entitled to judgment as a matter of law because there was not one single piece of evidence in the record to contradict any one of their three defenses. And on top of that, Defendants argue that the jury also got it wrong when it came to the issue of damages. Although Defendants could have prevailed by proving they were entitled to judgment as a matter of law on only one of any three of their defenses, Defendants instead threw in everything but the kitchen sink, demonstrating that not one of their arguments is strong enough to support judgment as a matter of law. To the contrary, Plaintiff has demonstrated that a legally sufficient evidentiary basis exists to support the jury award for Plaintiff on his right of publicity claim and the damages award of $783,900.00. As a result, Defendants are not entitled to judgment as a matter of law and their Motion should be denied in its entirety. RESPECTFULLY SUBMITTED this 14th day of March 2007.

ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Attorney for Plaintiff Meadowlark Lemon

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on March 14th , 2007, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW was delivered via first-class mail to the following parties: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. Jason Leonard The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260
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Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Karl M. Tilleman P. Bruce Converse Jason Sanders Steptoe & Johnson LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 14th day of March 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer