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

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. PLAINTIFFS' JOINT RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO A PLAYERS' UNION Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 Players' Union, and state as follows: 16 Defendants.

Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file this Response to Defendants' Motion In Limine to Exclude Evidence Relating to a

The Plaintiffs' employment contracts, (allegedly containing Defendants' consent defense), cannot be 17 18 19 20 21 22 23 24 25 26
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read without the superceding Collective Bargaining Agreement ("CBA") which Defendants seek to exclude. Defendant HGI, the supposed archivist for the history and tradition of the Harlem Globetrotters, offers not one exhibit relating to the hard won union benefits in its revisionist history of the Harlem Globetrotters. Also, related CBA documents contain relevant evidence that Plaintiffs were paid extra for endorsements (See FN2 to this Response), crucial evidence on Defendants' laches and waiver defenses. In denying Defendants' motion for summary judgment as to Plaintiffs' rights of publicity claims, this Court stated in its Order (citing Pooley1) that lack of consent and resulting injury are elements that the

Pooley v. National Hole-in-One Association, 89 F.Supp.2d 1108, 1111 (D.Ariz. 2000)

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Plaintiffs must prove. Plaintiffs' "union related evidence" (Defendants' term) is relevant. Defendants' defense of consent and license hinges entirely upon the determination by the jury of the effect of CBA's on old employment contracts. Plaintiffs briefed during summary judgment the fact that CBA's were negotiated and signed by not only Plaintiff Thornton as president of the UBPA, but by the predecessors to HGI themselves. (Plaintiffs' Exhibits 1-5, 84, 96-102, 105-114, etc. are union documents). These CBA's

6 expressly supersede the individual player contracts and amend to the very publicity provisions that HGI 7 8 9 10 11 12 13 14 15 16 the CBA...still exists or has any successors," such a spurious assertion is a basis for excluding this evidence. 17 All that matters is whether the evidence is relevant and reliable, and that it will not confuse the jury. The 18 19 20 21 22 23 24 25 26 27 28
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Every Plaintiff testified they believed the CBA's affected their player contracts. (PSOF¶¶ 2, 40, 47, 48, 51, 66, 68, 80, 87, Doc#314).
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relies upon for consent. (PSOF¶2, 68, 75, Doc. #314).2 Plaintiffs' Exhibit 102 is the 4/13/74 document announcing the recognition of the players' union--a document Defendants seek to exclude from the jury. The player contracts which HGI wishes the jury to make a determination upon, simply cannot be read or interpreted without the CBA's that were in place, and renewed automatically according to their terms (several of Plaintiffs' "player contracts" specifically reference the CBA and the National Labor Relations Board. (Plaintiffs' Reply, page 8, lines 2-3, Doc#319). It is undisputed that the players' union was in place and that the CBA's were signed by the president of predecessors to HGI, (PSOF ¶2, Doc#314). Defendants make the bizarre argument (Motion, page 2) that because "there is no record that one party to

CBA's and related documents have been authenticated after HGI's objections (Doc#310, ¶1-2; PRRNSOF¶2). Additionally, Defendants make an utterly false statement about the CBA incorporating the publicity provision of "Plaintiffs' player contracts" (Motion, page 2). Plaintiffs demonstrated in their summary judgment filings that this was simply not the case (Plf.s' Reply page 8, Doc#319; See also PRRNSOF¶2, Doc#310). Defendants also make serious misstatements that Plaintiffs eschewed the

"reasonable royalty" method to prove damages (Motion, pg. 3). This is patently false as Plaintiffs have

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repeatedly asserted in numerous pleadings that there is evidence that Plaintiffs' damages can be measured by the reasonable royalty rate paid in the past by HGI's predecessors to Plaintiffs (i.e. 25%), and even that HGI themselves paid several Plaintiffs 25% for the use of their images on a Bobblehead program (SOF ¶103, Doc#314). The rules are clear that Plaintiff may put on all relevant evidence. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir.1980) CBA's have been assigned special solemnity in the laws of this country. For example, as Plaintiffs

7 8 9 10 11 12 13 14 15 16 agreement, and assessment of damages against the Defendants.4 Exclusion of these union agreements 17 would constitute an injustice. 18 19 20 21 22 23 24
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had previously briefed, CBA's may not simply be extinguished in federal bankruptcy proceedings without following the specific code provisions requiring notice to all interested parties and hearings.3 The purpose for this is, of course, the protection of some citizens who, without such agreements, would have no protections or bargaining power whatsoever. The CBA exhibits proffered by the Plaintiffs have been authenticated and utilized as exhibits from the inception of this litigation on the issue of consent and interpretation of the so-called "Standard Player Contract" (Plaintiffs' SOF¶100, Doc#314; PRGO¶1, and PRRNSOF¶2, Doc#310) have been authenticated by witnesses in depositions, and are highly relevant to issues of the intent of the parties to the employment contracts, the interpretation of the provisions in the

Even if the CBA's are "extrinsic evidence," Plaintiffs' proposed jury

instructions and verdict forms instruct that the jury may consider extrinsic evidence to determine the parties' intent.5 WHEREFORE, Plaintiffs respectfully request this Court deny Defendants Motion In Limine to Exclude Evidence Relating to a Players' Union.

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Defendants argue the Plaintiffs did not appear at hearings but fail to provide one document proving that "notice" requirements of 11 U.S.C.A. §1113 were followed. 11 U.S.C.A. §1113. 4 Plaintiffs have also provided union documents certified by the Arkansas Clerk of the Court; and also an affidavit provided by Phillip Anderson, former HGI attorney that demonstrates not only authenticity, but that HGI's predecessors acknowledged the controlling effect of the CBA (Plf.s' proposed Ex. 164-166 originally served in Plf.s' Rule 26 Disclosure dated 5/26/06). 5 Mauna Loa Vacation Ownership LP v. Accelerated Assets, LLC, 2005 WL 24106 (D.Ariz).

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DATED this 21st day of November, 2006. ROSENQUIST & ASSOCIATES By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

MORGAN & MORGAN, P.A. By: ____/S/Clay M. Townsend_____________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced document have been served via first class mail on the following attorneys: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP

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499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Motion in Limine to Exclude any Evidence Relating to a Player's Union 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], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected]

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Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected]

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Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Joint Response to Defendants' Motion in Limine to Exclude any Evidence Relating to a Player's Union was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC

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3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November 21st, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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