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 RELATED TO ALLEGED UNCONSCIONABILITY OF PLAINTIFFS' PLAYER CONTRACTS Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 Defendants.

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

16 to Alleged Unconscionability of Plaintiffs' Player Contracts ("Motion"), and state as follows: 17 18 19 20 21 22 23 24 25 26 jury may determine lack of consent not only on the grounds of unconscionability, but upon considering the parties' intent at the time the player contracts were entered (all Plaintiffs submitted affidavits during the
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Evidence of unconscionability cannot be excluded as it is intertwined with all the facts and

circumstances relating to Plaintiffs' employment contracts which are the core of Defendants' defense. Plaintiffs moved for summary judgment on the issue of whether Plaintiffs' old employment contracts were inherently unconscionable (and therefore void against public policy) given HGI's interpretation and exploitation of the publicity provisions (i.e. that Plaintiffs granted HGI's predecessors the exclusive and unlimited use for all purposes of Plaintiffs' names and likenesses in perpetuity). 2. This Court discussed unconscionability in its Order of June 27, 2006. Plaintiffs respectfully

assert that evidence of unconscionability was proffered, and that evidence of such is relevant at trial as the

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summary judgment briefing as to their understanding of the publicity and endorsement agreement, their inability to obtain legal counsel, their unequal bargaining positions, their being told to "take it or leave it", and that all the contracts were "standard" etc. See Plaintiffs' SOF ¶79, Doc#281; Exhibits 1(k) Neal Transcript page 28; Exhibit 1(t) Sanders Transcript page 119-120; Exhibits 73, 73(e) to Plaintiffs' Reply to HGI's Motion for Summary Judgment, Doc#319).

6 3. 7 8 9 10 11 12 13 14 15 16 upon which Defendants hang their entire defense. 17 5. 18 19 20 21 22 23 24 25 26 27 28
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It is HGI that has made these old player contracts the central issue to their defense of

consent and license. It is undisputed that the Defendants used Plaintiffs' identities and manufactured and sold garments in the marketplace. The central remaining Pooley1 element to be wrangled with by the jury is whether HGI's reliance on decades old players' contracts for authority is proper and constitutes Plaintiffs' consent and/or license. 4. Evidence of unconscionability is not only relevant, but so central to the issue of consent,

that its exclusion would be highly prejudicial to Plaintiffs. Evidence that Plaintiffs signed contracts in the 1940's when they had no legal representation, no bargaining power, were told to "take or leave it", etc., will hardly confuse a jury, but rather shine a light on the intent behind, and effect of, the publicity provisions

The court may consider extrinsic evidence such as the surrounding circumstances, including

negotiation.2 If Defendants' defense to the jury is, for example, a contract that Robert "Showboat" Hall signed in 1947, then to exclude Plaintiff Hall's testimony as to the circumstances, including any unconscionability surrounding such an agreement, works the most prejudice to the Plaintiffs. 6. Defendants made absolutely no effort to conduct discovery from any of the other parties to

Plaintiffs' old player contracts (Plaintiffs have filed a Motion In Limine to exclude any efforts by Defendants to offer testimony as to the intent of the parties to these old agreements other than Plaintiffs).

2 Mauna

Pooley v. National Hole in One Association, 89 F.Supp.2d 1108, 1111 (D.Ariz. 2000) Loa Vacation Ownership LP v. Accelerated Assets, LLC, 2005 WL 24106 (D.Ariz)

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7.

As to Defendants' comment that Plaintiffs should have objected to Defendants' use of

Plaintiffs' publicity rights before now, Plaintiffs have extensively briefed in this matter the fact that HGI has never made such a use as the FUBU clothing deal before now. Past endorsements where HGI predecessors exploited Plaintiffs' identities were paid to Plaintiffs as an endorsement fee. (Plaintiffs' SOF ¶80-85, Exhibit 3F, ¶12(a), Doc# 281).

6 8. 7 8 9 10 11 12 13 14 15 16 9. 17 the probative value in a light most favorable for the proponent against the allegedly prejudicial effect of the 18 19 20 21 22 23 24 25 26 27
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On page 2 of their Motion, HGI complains that evidence of Plaintiffs being treated poorly

and being given no choice in signing the contracts could be prejudicial to HGI as the "jurors may unjustifiably attribute these actions to HGI as a successor in interest". Thus, HGI's concern seems not to be about prejudice, but about truth. But prejudice alone does not suffice to exclude relevant evidence under F.R.E. 403.3 It is HGI that has happily stepped into the shoes of their predecessors, even predecessors that signed contracts in the 1940's. HGI should have to take the good with the bad. If HGI's position to the jury is that these publicity provisions grant HGI a perpetual right to exploit Plaintiffs for no compensation and for any conceivable purpose, than Plaintiffs certainly have the right to put on relevant evidence of unconscionability to the jury. The federal rules favor admissibility. To exclude Plaintiffs' evidence, the Court must balance

proffered evidence, and exclusion should be used sparingly. U.S. v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). 10. Lastly, as to the application of state law, the law can be easily explained to the jury, even

from several jurisdictions governing the different player contracts, which is similar among states. DATED this 21st day of November, 2006.

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Such language must be strictly construed against the drafter/employer. Bryceland v. Northey, 160 Ariz. 213, 772 (Ariz.App. 1989)

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ROSENQUIST & ASSOCIATES By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

MORGAN & MORGAN, P.A. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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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 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC -4Document 521
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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' Response to Defendants' Motion in Limine to Exclude any Evidence Related to Alleged Unconscionability of Plaintiffs' Player Contracts 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] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected]

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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
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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' Response to Defendants' Motion in Limine to Exclude any Evidence Related to Alleged Unconscionability of Plaintiffs' Player Contracts 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 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

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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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