Free Motion in Limine - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 [email protected] (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' l, Inc. and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiffs, vs. HARLEM_GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants. Defendants GTFM, LLC, Harlem Globetrotters International, Inc. ("HGI"), and Mannie L. and Catherine Jackson submit this joint motion pursuant to Fed. R. Evid. 402 and 403, and the inherent powers of the Court, for an order precluding the Plaintiffs from offering at trial evidence relating to the players' union, collective bargaining agreements and documents related thereto.1 Plaintiffs' proposed exhibit list includes dozens of documents relating to a union
This motion is made without prejudice to Defendants' other in limine motions, Trial Brief, Motion to Strike or Opposition to Plaintiffs'Motion for Pre-Admission.
PHX/RHARRIS/1856611.1/43458.007
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Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC DEFENDANTS IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATING TO A PLAYERS' UNION

Case 2:04-cv-00299-DGC

Document 504 1 - Filed 11/15/2006

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some Plaintiffs were members of during at least part of their tenures as Globetrotters. Yet the fact of the union and whether Plaintiffs were members of it has nothing to do with the four elements of Plaintiffs' remaining right of publicity claim as set forth in this Court' s June 27, 2006, Order. (Doc. # 425). Plaintiffs should be barred from presenting unionrelated evidence at trial. 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. Restatement (2d) of Contracts § 9 ("there must be at least two parties to a contract"). 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. HGI SOF ¶¶ 18-18 (Doc. # 267.) When Mannie Jackson, through Mannie Jackson & Associates and HGI, purchased the team in 1993, he was unaware of a players' union and no union has formed since that time. Id. ¶ 8. Any union that may have represented Plaintiffs as players is thus long gone and Plaintiffs' proffered evidence-- for example, the union' financial statements, and hearsay correspondence s from the union' attorneys (Pls' Exs. 107-109, 111-114)-- is completely irrelevant to s Plaintiffs' right of publicity claim. The collective bargaining agreements are irrelevant for additional reasons. As Defendants have repeatedly shown, the 1983 collective bargaining agreement-- the only fully executed CBA in the record-- incorporated the publicity provision of Plaintiffs' player contracts and did not limit the rights to either side of individual player contracts. HGI SOF ¶¶ 6-7 (Doc. # 267). Plaintiffs also cannot use the collective bargaining

agreement to claim they should receive a reasonable royalty for the FUBU/HGI Apparel
PHX/RHARRIS/1856611.1/43458.007

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Document 504 2 - Filed 11/15/2006

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since they have specifically eschewed the "reasonable royalty" method to prove damages in this case, and the Court has limited Plaintiffs' proof of damages to the HGI Letter and Sales Chart. SJ Order at 22 (Dkt. # 425.) As a result, evidence concerning the players' union, collective bargaining agreements and documents related thereto is irrelevant and would mislead the jury and be unduly prejudicial to Defendants and cannot be permitted into evidence. PROPOSED LANGUAGE FOR ORDER Pursuant to ¶ 7 of the Pretrial Order, Defendants respectfully request that the Court enter an order stating that Plaintiffs are precluded at trial from offering any evidence relating to the players' union, collective bargaining agreements and documents related thereto. RESPECTFULLY SUBMITTED this 15th day of November, 2006. By: s/ Ira S. Sacks_________________ By: s/ Edward R. Garvey____________ Ira S. Sacks, admitted pro hac vice Edward R. Garvey, admitted pro hac vice Safia A. Anand, admitted pro hac vice Christa Westerberg, admitted pro hac vice DREIER LLP GARVEY McNEIL & 499 Park Avenue McGILLIVRAY, S.C. New York, NY 10022 634 W. Main St. #101 Telephone: 212-328-6100 Madison, WI 53703 Facsimile: 212-328-6101 Telephone: 608-256-1003 [email protected] Facsimile: 608-256-0933 [email protected] Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 [email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc. and Mannie l, L. & Catherine Jackson

PHX/RHARRIS/1856611.1/43458.007

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PHX/RHARRIS/1856611.1/43458.007

CERTIFICATE OF SERVICE 1. I hereby certify that on November 15, 2006, a true and correct copy of Defendants' In Limine Motion to Exclude Evidence Relating to a Players' Union was electronically transmitted to the Clerk' Office using the CM/ECF System for filing and s transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A Anand [email protected] [email protected]\ [email protected]

Florence M Bruemmer Joel Louis Herz

Robert Williams Goldwater III

[email protected], [email protected]

Brandon Scott Peters [email protected], [email protected], [email protected] Anders V Rosenquist , Jr Ira S Sacks [email protected] [email protected]

Clay M Townsend [email protected], [email protected]; [email protected] 2. I hereby certify that on November 15, 2006, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan & Morgan PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802 s/Melody Tolliver

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