Free Motion for Judgment - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: (602) 257-5200 Facsimile: (602) 257-5299 Karl M. Tilleman (013435) P. Bruce Converse (005868) Jason Sanders (018600) Attorneys for Defendants Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson DREIER LLP 499 Park Avenue New York, New York 10022 (212) 328-6100 Ira S. Sacks, admitted pro hac vice Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et al., Plaintiffs, vs. Harlem Globetrotters International, Inc., et al. Defendants.
DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW

Nos. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC

Case 2:04-cv-00299-DGC

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Filed 02/27/2007

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Pursuant to Fed. R. Civ. P. 50, Defendants Harlem Globetrotters International, Inc. and GTFM, LLC (collectively " Defendants" move for judgment as a matter of law ) (" JMOL" setting aside the jury' verdict in favor of plaintiff Meadowlark Lemon for ), s $783,900 in compensatory damages against Defendants on plaintiff' claim for s invasion of the right of publicity. 1. As a matter of law, plaintiff consented to the Defendants' of his name use

on the FUBU apparel through his conduct over the past 25 years. 2. As a matter of law, plaintiff consented to the Defendants' of his name use

on the FUBU apparel through his 1975-80 player contract. a. Plaintiff presented no evidence that would have allowed a

reasonable juror to find that defendant HGI did not purchase his player contract when HGI purchased the Globetrotters' assets. b. The evidence at trial was indisputable that plaintiff' name and s

likeness were used in product merchandising for a wide range of products during his playing years, and that his name was put to the same use on the FUBU apparel. 3. As a matter of law, plaintiff consented to the Defendants' of his name use

on the FUBU apparel through a Collective Bargaining Agreement that contains royalty provisions that plaintiff has argued apply to the FUBU apparel at issue. 4. As a matter of law, the jury ignored the Court' instructions and the s

undisputed evidence in awarding plaintiff all of Defendants' gross revenues without any deductions, including any deduction for GTFM'manufacturing expenses. s 1. PLAINTIFF CONSENTED TO THE USE OF HIS NAME THROUGH HIS CONDUCT OVER THE PAST 25 YEARS. Plaintiff' actions over the past 25 years demonstrates that, as a matter of law, s he consented to the use of his name on the FUBU apparel. Plaintiff testified that he has monitored the Globetrotters' of his name since the end of his playing career in use 1979. (2/6/07 tr. (Ex. 4) at 106:5-10) Plaintiff testified that, after leaving the team, he knew that the Globetrotters had continued to use his name, likeness, and picture " all
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over."(Id. at 104:18-23, 105:14-18, 108:4-8) This included the entire time in which Mr. Jackson and HGI owned the team. (Id. at 108:4-8) Plaintiff specifically testified that he knew that the Globetrotters used his name, likeness, and image in magazines and in thousands of programs that were sold around the world. (Id. at 105:6-18; 2/7/07 tr. (Ex. 5) at 26:13-28:2; Trial Exs. 1166-67, 1169-72) Plaintiff repeatedly admitted, however, that he never said anything, or took any steps to stop the Globetrotters from using his name, likeness, and image. (2/6/07 tr. (Ex. 4) at 102:25-103:4, 105:10-13, 107:14-18, 108:9-23) Plaintiff was not without the opportunity to do so. Plaintiff admitted that, throughout the years, he and Mr. Jackson had multiple meetings, breakfast meetings, lunch meetings, and golf outings. (Id. at 107:19-108:3) Not once, however, did

plaintiff ever tell Mr. Jackson that he should stop using his name, likeness, and image. (Id.) In fact, even after he learned that his name was being used on some of the FUBU apparel, he said nothing. He said nothing to Mr. Jackson while they were together on the night of plaintiff' induction into the Basketball Hall of Fame. (Id. at s 109:3-110:10) He said nothing to Mr. Jackson the next day while they were together for an outdoor ceremony or while they stood together in a receiving line. (Id. at 110:11-24) He said nothing the following weekend when, at Mr. Jackson'expense, he s attended and participated in Mr. Jackson' charity golf tournament. (Id. at 110:25s 111:20) He said nothing that night when Mr. Jackson held a VIP dinner in his honor. (Id. at 111:21-112:4) He said nothing two weeks later when he had lunch with Mr. Jackson at the Ritz Carlton. (Id. at 112:5-113:6) He said nothing even after receiving letters from the Globetrotters in October 2003 that informed him that the Globetrotters were using his name on the FUBU apparel. (Id. at 113:7-116:16) Thus, even after learning of the use of his name on some of the FUBU apparel, plaintiff accepted personal benefits from Mr. Jackson but never once said anything to him or anyone else with the Globetrotters objecting to the use of his name on the
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FUBU apparel. Plaintiff'25 years of silence is clear evidence of his consent to the use s of his name on the FUBU apparel. 2. PLAINTIFF CONSENTED TO THE USE OF HIS NAME THROUGH HIS 1975 PLAYER CONTRACT. No reasonable juror could have found that plaintiff did not contractually consent to the use of his name on the FUBU apparel. It is undisputed that plaintiff signed a player contract in 1975 that specifically granted the Globetrotters the license and right to use his name, likeness, and image " any manner it may desire for the advertising in and promotion of any of HGI' athletic teams or other activities or the advertising and s promotion of the sale of any commercial products or services." (Trial Ex. 1115 at 1112) Plaintiff also specifically agreed that the Globetrotters had the right to continue to use his name and likeness after his playing days " the extent they are put to the same to uses as they were put prior to" end of his contract. (Id. at 12) As explained further the below, plaintiff' contract provides the requisite consent for the FUBU apparel as a s matter of law. A. Mr. Jackson Purchased Plaintiff'Contract. s

No reasonable juror could have found that HGI failed to purchase plaintiff' s contract from HGI' predecessors. s In ruling on the parties'summary judgment

motions, this Court determined that the relevant portions of the Asset Purchase Agreement were ambiguous, and cited Hudson-Port Ewen Assocs. v. Kuo, A.D.2d 301, 303 (N.Y. App. Div. 1991) for the proposition that summary judgment is inappropriate where a contract is ambiguous and the intent of the parties depends on the credibility of or inferences to be drawn from extrinsic evidence. Lemon v. Harlem Globetrotters International, Inc., 437 F. Supp. 2d 1089, 1101 (D. Ariz. 2006). That extrinsic

evidence was presented at trial and unequivocally demonstrated that HGI purchased and owned all of the former player contracts, including plaintiff' s. The evidence admitted at trial was that both the seller and the buyer agree that HGI purchased plaintiff'player contract. Two agents of the selling corporation--Ted s
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Nikolis and Paul Horton--both testified that it was their intent to transfer all of the Globetrotter assets to HGI. Mr. Nikolis testified that HGI received all of the Harlem Globetrotter assets and that it was never his intent to sell only pieces of the assets. (Nikolis Dep. at 27:21-28:13, 33:9-15) Mr. Horton likewise testified that all of the assets, including all of the former player contracts, were transferred to HGI. (Horton Dep. at 51:10-17, 57:9-16, 58:5-22) Mr. Jackson likewise confirmed that he intended to buy all of the team'assets, s including the player contracts. Mr. Jackson testified that there was never any intention to buy anything other than all of the assets of the Harlem Globetrotters, including all of the licensing rights of former players. (1/24/07 pm tr. (Ex. 3) at 28:3-21) During the due diligence process, Mr. Jackson asked his team " look at all contracts and verify to the fact that the rights did in fact transfer as an asset through the acquisition."(1/23/07 pm tr. (Ex. 1) at 14:4-9) Mr. Jackson and his legal team reviewed documents that gave them " confidence and assurance that the assets [they] had negotiated for were in fact transferable and appropriately identified." (1/24/07 am tr. (Ex. 2) at 88:8-15) Mr. Jackson testified that he was " sure" that he had purchased all of the licensing rights of the Harlem Globetrotters, including all licensing rights that dealt with plaintiff. (1/24/07 pm tr. (Ex. 3) at 28:3-21) Mr. Jackson also asked for--and received--

confirmation from the seller that he had purchased all of the contracts and all other assets that were available. (Id.) Mr. Jackson therefore distributed a business plan (Trial Ex. 1186) to selected potential investors that highlighted his intent to buy all of the Globetrotter assets, including all of the former player contracts. (1/24/07 pm tr. (Ex. 3) at 29:17-30:25) Mr. Jackson further testified that the intent of the finalized Asset Purchase Agreement (Trial Ex. 19) was to transfer all contracts, including plaintiff' (1/24/07 pm tr. (Ex. 3) at 28:3-21) s. There was absolutely no contrary extrinsic evidence from any source--whether from seller or buyer--that the player contracts were not conveyed to HGI. In other words, no conflicting extrinsic evidence was ever presented that would have allowed
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the jury to determine credibility or draw inferences about whether the contracts were purchased, because all of the extrinsic evidence clearly demonstrated that HGI did in fact purchase plaintiff'contract. Accordingly, the Court should determine as a matter s of law that HGI and Mr. Jackson acquired plaintiff'player contract. s B. Plaintiff'Contract Covers the FUBU Apparel. s

As discussed above, it is undisputed that plaintiff signed a player contract that specifically granted the Globetrotters the license and right to use his name, likeness, and image. (Tr. Ex. 1115) The contract gives the Globetrotters the right to continue to use plaintiff' name, likeness, and image after his playing days " the extent they are s to put to the same uses as they were put prior to such termination."(Id. at 12) The evidence presented during trial demonstrated that, while plaintiff was under contract, the Globetrotters used his name, likeness, and image for promotion and merchandising on everything from t-shirts to programs to trading cards to cartoons. Significantly, plaintiff specifically testified that, during his playing days, his name and image appeared on clothing sold by the Globetrotters. (2/6/07 tr. (Ex. 4) at 134:21-24) Thus, placing plaintiff' name on some of the FUBU apparel is using his name in s exactly the same way as it was used while he was under contract. No reasonable jury could have decided otherwise. In addition, the Globetrotters sold iron-on transfers that displayed plaintiff' s name and likeness. (2/6/07 tr. (Ex. 4) at 154:20-156:3; 2/7/07 tr. (Ex. 5) at 30:2332:17, 39:13-15) In the 1970' when the iron-on fad hit the country, the trend was to s, purchase an iron-on and put it on the shirt or jacket of your choosing. Selling iron-ons that resulted in plaintiff'name and likeness appearing on clothing is the same thing as s putting plaintiff'name, likeness, and image on the FUBU apparel--the only difference s is the technology used. Plaintiff'name, photo, and other identifying information were also used in the s programs the Globetrotters sold at arenas where they played. (2/6/07 tr. (Ex. 4) at 93:14-16) The Globetrotters also sold posters and trading cards with plaintiff' name s
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and likeness. (Id. at 135:11-15; 2/7/07 tr. (Ex. 5) at 30:23-31:20, 39:19-22) The Globetrotters also sold a record album that displayed plaintiff'picture on the front and s back cover. (2/6/07 tr. (Ex. 4) at 154:5-7) The Globetrotters also sold a Viewmaster set that had plaintiff'picture and name on both the cover and the back of the package. s (2/7/07 tr. (Ex. 5) at 30:23-31:5) Plaintiff'name and caricature were also included in s a Harlem Globetrotters cartoon, which ran during plaintiff' playing days. (2/6/07 tr. s (Ex. 4) at 154:1-4) Plaintiff' name and image were also used on Thermos brand s lunchboxes, comic books, and board games, which used and displayed plaintiff'name, s likeness, and image. (Id. at 134:25-135:5; 2/7/07 tr. (Ex. 5) at 30:23-31:20, 39:13-24) The undisputed evidence demonstrates that, while plaintiff was under contract, the Globetrotters caused his name, likeness, and image to appear on all kinds of items, including apparel. That use clearly brought the use of plaintiff' name on the FUBU s apparel within the scope of the license granted in plaintiff'player contract. Given the s undisputed evidence that plaintiff consented to the use of his name on the FUBU apparel, Defendants are entitled to judgment as a matter of law on his publicity claim. 3. PLAINTIFF CONSENTED TO THE USE OF HIS NAME PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT. Plaintiff argued throughout this case that one or more Collective Bargaining Agreements (" CBAs" between the Harlem Globetrotters and the United Basketball ) Players Association apply to and govern the sales of FUBU apparel using his name and likeness. For example, in response to Defendants' Motion in Limine regarding the players' union, plaintiff argued that the CBAs " proffered by the Plaintiffs have been authenticated and utilized as exhibits from the inception of this litigation on the issue of consent."(Dkt. # 522 at 3) In addition, in plaintiff'Proposed Non-Model Instruction s No. 5, plaintiff claimed that the CBA requires a 25% royalty, that it prevails over individual contracts, and that the jury may decide that " terms related to Plaintiffs' its rights are controlling." (Dkt. # 493 at 66-67) Plaintiff specifically argued that the " Collective Bargaining Agreement terms continue to control." (Id.) Plaintiff also
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argued that, to the extent any " independent agreement"conflicts with the CBA, " the terms of the CBA control."(Id. at 67) The CBAs each contain royalty provisions which govern sales of Covered Merchandise, which is expressly defined as " articles of merchandise manufactured, or licensed for manufacture, by the Company, for sale to the public[.]" (Trial Exs. 1, 4 and 692 at ¶ 14.12) By advancing the position throughout this litigation that these CBAs apply, plaintiff should not be heard to claim now that they do not apply. Accordingly, as plaintiff has argued throughout this litigation, the CBAs apply to and govern the sales of FUBU apparel using plaintiff' name or likeness. Therefore, of s necessity plaintiff consented to the use of his name on the FUBU apparel and no reasonable juror could have found otherwise. 4. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON PLAINTIFF' DAMAGES CLAIM. S The jury' damage verdict plainly ignored the Court' damages instruction and s s failed to take into account the clear and undisputed evidence of GTFM' expenses s when calculating Defendants'net profits. The jury also ignored the undisputed

testimony that most, if not all, of the sales of the FUBU apparel were made because of factors other than the fact that plaintiff'name was on the back of the garment. s Defendants have set forth their argument regarding damages in detail in their Motion for New Trial, and for the sake of brevity, incorporate it here. For the same reasons set forth in their Motion for New Trial, Defendants believe that they are entitled to judgment as a matter of law on plaintiff' damages claim. If the Court s determines that Defendants are not entitled to judgment as a matter of law on consent, Defendants believe that a nominal damages award is appropriate. Conclusion For the foregoing reasons, the Court should vacate the compensatory damages verdict against the Defendants and grant judgment as a matter of law to Defendants on plaintiff'claim for invasion of the right of publicity. s
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Case 2:04-cv-00299-DGC Document 614 8 Filed 02/27/2007 Page 9 of 10
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DATED this 27th day of February 2007. STEPTOE & JOHNSON LLP By: /s/ Karl M. Tilleman Karl M. Tilleman P. Bruce Converse Jason Sanders 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 [email protected] [email protected] [email protected] Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DREIR LLP

By:

/s/ Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 [email protected]

Attorneys for Defendant GTFM, LLC

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CERTIFICATE OF SERVICE 1. I hereby certify that on 27th day of February 2007, a true and

correct copy of the foregoing Motion was electronically transmitted to the Clerk' s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand: [email protected] Florence M. Bruemmer: [email protected] Edward R. Garvey: [email protected], Christa O. Westerberg: [email protected] [email protected] Robert Williams Goldwater III: [email protected] Ray Kendall Harris: [email protected] [email protected] Joel Louis Herz: [email protected], [email protected] Alec R. Hillbo: [email protected] [email protected] Brandon Scott Peters: [email protected] [email protected] [email protected] Anders V. Rosenquist , Jr: [email protected] Ira S. Sacks: [email protected] Clay M. Townsend: [email protected] [email protected] [email protected] Jason R. Leonard: [email protected]
[email protected] [email protected]

By: /s/ Karl Tilleman Karl Tilleman

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