Free Reply - District Court of Arizona - Arizona

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FENNEMORE CRAIG Ray K. Harris (No. 007408) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Edward R. Garvey, Esq., 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' Inc., Harlem Globetrotters International l, Foundation, Inc., and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC REPLY TO PLAINTIFFS'RESPONSES TO HGI' STATEMENT OF FACTS IN S SUPPORT OF MOTION FOR SUMMARY JUDGMENT

12 MEADOWLARK LEMON, et al., 13 14

Plaintiffs, vs.

HARLEM GLOBETROTTERS 15 INTERNATIONAL, INC., et al.; Defendants. 17 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 18
16 19 vs.

Counterclaimant,

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Counterdefendant.

Pursuant to District Court of Arizona LRCiv 56.1(a), Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie & Catherine Jackson ("HGI Defendants") submit the following reply to Plaintiffs' responses to the HGI

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Defendants' Statement of Facts ("DSOF", Doc 196) in Support of HGI' Motion for Summary s Judgment. In this Reply, "HGI" or "the Globetrotters" refers to Harlem Globetrotters International, Inc. and "GTFM" and "FUBU" refer to GGTFM, LLC. "License Agreement" refers to the June 1, 2002 license agreement entered into by HGI and GTFM, and "Apparel" refers to apparel produced in accordance with that agreement. GENERAL OBJECTIONS A. Documents Lacking Foundation.

HGI Defendants object to a number of exhibits attached to the declaration of Clay Townsend, attorney for the Neal Plaintiffs, as lacking foundation. These are Exhibits 12, 21, 25, 40, 41, 42, 43, 44, 46, 50, 55A, 55B, 58, 59, 60, 62, 65, 66, 67, and 69. Mr. Townsend does not indicate that he has personal knowledge of these documents, many of which are decades old, and they lack foundation elsewhere in the record. These exhibits cannot be used to oppose a motion for summary judgment. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a); Canada v. Blain' s Helicopters., Inc., 831 F.2d 920, 925 (9th Cir. 1987) ("In order to be considered by the court, "documents must be authenticated by and attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.") (citations omitted) (emphasis added). Similarly, HGI Defendants object to Plaintiff Lemon' Exhibits C, G, P, Q, W, and EE, a s variety of documents that are unauthenticated by Plaintiff or elsewhere in the record, and any facts relying on these exhibits. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a). "It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment. . . . This court has consistently held that documents which have not had a proper foundation to authenticate them cannot support a motion for summary judgment." Canada v. Blain' s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (internal quotation marks and citations

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omitted). B. Documents Containing Hearsay.

Attorney Townsend' declaration additionally attaches documents, offered for the truth of s the matters asserted, that contain inadmissible hearsay. These are Exhibit 10 (also found in Exhibit 56A) 21, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 55A, 55B, 58, 59, 60, 62, 65, 66, 67, 69. "[H]earsay is inadmissible unless it is defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay exception under Rules 802, 804 or 807." Orr, 285 F.3d at 778 (finding hearsay statements inadmissible in plaintiff' response to a motion for summary s judgment). Plaintiffs have not met their burden to show that the statements contained in these exhibits are not defined as hearsay or fall within a hearsay exception, they are inadmissible. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir. 1981) ("it is up to the proponent of the evidence to lay the proper evidentiary foundation") (excluding evidence because plaintiffs failed to carry their burden to demonstrate that witness was acting within the scope of defendant' employment when disputed statements were made), cert denied, 456 U.S. 927 s (1982). These exhibits, and any facts relying thereon, are inadmissible. C. Documents That Are Not What Plaintiffs Claim.

Attorney Townsend' declaration attaches and describes a number of documents that are s not what he says they are. These include Exhibits 2A, 2B, 5B, 9D, 14, 17, 21, 42, 43, 47, 48, 51, 52, 53, 55A, 56A, 58, 59, 60, and 62. For example, the declaration states or implies that Exhibits 2A, 43, 55A, and 56A are fully executed contracts or certifications, when they are unsigned or unexecuted. Many other exhibits are incomplete or composites. Exhibit 55B should be stricken per Fed. R. Evid. 1003 because it is not an accurate duplicate of the 1983 collective bargaining agreement, but omits several pages that are unfavorable to Plaintiffs. D. Miscellaneous Objections.

HGI Defendants object to Plaintiff Lemon' Exhibit M, the affidavit of Edward Mutum, s which they have previously moved to strike since this witness was not disclosed in discovery or
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through Plaintiff' Fed. R. Evid. 26 initial disclosures. (Mot. to Strike, Doc 268.) HGI s Defendants renew that motion as to Exhibit M. HGI Defendants object to Exhibits N (Weisfeld deposition) and FF (Tinberg expert report), to the extent they are "marked up," apparently by Plaintiff' counsel, and are not true s and correct copies of the Weisfeld deposition and Tinberg expert report. Fed. R. Evid. 1003. Notwithstanding and without waiving these objections, HGI Defendants reply to Plaintiffs' responses to HGI' statement of facts as follows: s REPLIES TO PLAINTIFFS'RESPONSES TO HGI' STATEMENT OF FACTS S There is no genuine dispute as to the facts necessary to support summary judgment for HGI. The responses by Plaintiffs (Neal DSOF Resp, Doc 281; Lemon DSOF Resp, Doc 283) are discussed by paragraph number below. A. The Globetrotters and Globetrotters-Related Parties

Plaintiffs do not dispute DSOF ¶¶ 1, 2, 3 and 6. 4. Plaintiffs have not submitted facts disputing Mannie Jackson' belief, based upon s

the standard player contract and his experience as a Globetrotters player and owner, that the team had the rights to use Plaintiffs' names. Plaintiffs' argument regarding contract terms and collective bargaining agreements are discussed in the memorandum of law. 5. Plaintiffs have not presented evidence disputing the foundation' purpose of s

helping former players. The Neal Plaintiffs misrepresent Mr. Jackson' testimony, which was s that the Foundation had helped approximately six former players, though he could not remember their names. Mr. Neal was not "rebuffed" in his request for help in 2002. As the Neal Plaintiffs' Exhibit 51 indicates, he was simply asked for more information so that the Foundation could decide on his request while keeping within its mission. Whether the Plaintiffs-- who have not been associated with the Globetrotters for years-- know of no former players who have received help from the Foundation is immaterial to whether any former player did, in fact, receive help.

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B.

The Plaintiffs

Plaintiffs do not dispute DSOF ¶¶ 7, 8 and 11. 9. Plaintiff Lemon has not submitted evidence sufficient to dispute the fact players

numbers are recycled, including his own. HGI Defendants do not dispute that Mr. Vaughn may have thought, without reference to Globetrotters records, that Plaintiff Lemon is the only Globetrotter to have worn the number thirty-six. As Plaintiff' record cite shows, this testimony s regarding Mr. Lemon' number is not based on personal knowledge. However, company s records show that at least three recent players have worn the number 36, including Donnie Boyce in 2001, William Pippen in 2004, and Gordon Malone in 2005. (Syracuse Aff., ¶ 9, Doc 208). The Neal Plaintiffs have failed to produce evidence disputing DSOF ¶ 9. They do not dispute DSOF ¶ 10 which lists the players who have worn Plaintiffs' numbers. As to nicknames, HGI objects to Exhibit 46 as lacking foundation and containing hearsay. HGI Defendants do not dispute that some Plaintiffs' nicknames preceded their time with the Globetrotters but objects to any inference that they have secondary meaning, a legal conclusion. 10. Plaintiff Lemon has not submitted evidence sufficient to dispute the fact players

numbers are recycled, including his own. HGI Defendants do not dispute that Mr. Vaughn may have thought, without reference to Globetrotters records, that Plaintiff Lemon is the only Globetrotter to have worn the number thirty-six. As Plaintiff' record cite shows, this testimony s regarding Mr. Lemon' number is not based on personal knowledge. However, company s records show that at least three recent players have worn the number 36, including Donnie Boyce in 2001, William Pippen in 2004, and Gordon Malone in 2005. (Syracuse Aff., ¶ 9, Doc 208). 12. Lemon does not show any agreement regarding his ownership of #36. Lemon' s

reply cites his conclusory, self-serving affidavit. This is insufficient to avoid summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing n, g
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House, 104 F. 3d 1168, 1171 (9th Cir. 1997). Lemon has thus not presented adequate evidence to create a genuine dispute. Lemon' response regarding secondary meaning is a legal s conclusion and not a statement of fact. II. THE PLAYER CONTRACTS Plaintiffs do not dispute that each signed player contracts: DSOF ¶¶ 14 and 18 (Lemon contract). 13. Plaintiffs do not dispute that every Plaintiff signed contracts with the team, but

merely dispute the term "standard." While the Globetrotters' standard player contract has evolved from year to year, such that there has been change over time, the contracts were standard within each playing year. DSOF ¶¶ 16-22, Doc 196 (citing all Plaintiffs' contracts). The remaining "facts" Plaintiffs assert are immaterial. 15. Plaintiffs do not dispute that they signed player contracts or the terms of the

publicity provision, which speak for themselves and support HGI. The 1993 independent contractor agreement, while immaterial, does not specify a term for HGI' use of Plaintiff' s s name. (Pl' Ex. C.) s The Neal Plaintiffs neither dispute that Plaintiffs signed the player contracts nor the language of the contracts, which speak for themselves. The "endorsements" language only appears in some Plaintiff' final player contracts (Neal, Thornton, Sanders, and Rivers) and it is s immaterial because it does not apply to this case. The full context of the "endorsement" provision is: HGI shall not require Player to appear in "endorsements", as that term is understood in the trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its and their subsidiaries and affiliated companies, without Player' s consent, it being understood that this shall not in any way diminish any of HGI' rights under this contract. s (Rivers Dep. at 46, Ex. 12 ¶ 12(a), Doc 201 (also Pls' Ex. 3F) (emphasis added).) The License Agreement was clearly a "team endorsement," entered into by HGI, and featuring the

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Globetrotters' name and/or trademark on every item of Apparel. (Weisfeld Aff., ¶ 4, Doc 183.) The remaining facts the Neal Plaintiffs cite are also immaterial: the 1985 Neal contract was not a player contract, and the collective bargaining agreements incorporated the standard player contract' publicity provision. (Thornton Dep. at 86-87, 91, Ex. 11 at 1126, 1163; Ex. 8 ¶ 12(a), s Doc. 261.) 16. The Neal Plaintiffs misrepresent the Marques Haynes contract in their response

(i.e., the Haynes contract language was not "exclusive") but do not dispute that he signed contracts or provision quoted from his last contract. Further, the provision "with respect to commitments made by HGI prior to such termination" is immaterial, because the Apparel was within the range of uses the Globetrotters made of Haynes' information during the contract term. (E.g., HGI SJ Mem., Doc 195, at 13 n.7.) The "assignment" language is immaterial, because it applied only to teams not operating under the Globetrotters name. (Haynes Dep. at 22-23, Ex. 22 ¶ 18, Doc 196.) The last sentence of Plaintiffs' response is immaterial because that "standard" language on endorsements does not appear in Haynes' contract. (Id. ¶ 15(a).) 17. The Neal Plaintiffs misrepresent the Hall contract in their response (i.e., the Hall

contract language was not "exclusive") but do not dispute that he signed contracts or the controlling provision quoted from his last contract. All facts the Neal Plaintiffs cite in their response are immaterial, including the "endorsement" language Plaintiffs cite from the Rivers contract, because it did not appear in Plaintiff Hall' contract. (Hall Dep. at 28-29, Ex. 16 ¶ 12, s Doc 198.) 19. The Neal Plaintiffs do not dispute that Neal signed contracts or the controlling

provision quoted from his last player contract. The Neal 1988 contract is immaterial because it was not a player contract (it was an independent contractor, public relations contract) and it did not affect Plaintiffs' prior player contracts. Further, the "endorsements" language-- which Plaintiffs selectively quote-- is immaterial because it does not apply to the FUBU arrangement. The License Agreement was clearly a "team endorsement," entered into by HGI, and featuring

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the Globetrotters' name and/or trademark on every item of Apparel. (Weisfeld Aff., ¶ 4, Doc 183.) 20. The Neal Plaintiffs do not dispute Plaintiff Thornton' contracts or the controlling s

provisions quoted from the last Thornton contract. The "endorsements" language-- which Plaintiffs selectively quote-- is immaterial because it does not apply to the FUBU arrangement. The License Agreement was clearly a "team endorsement," entered into by HGI, and featuring the Globetrotters' name and/or trademark on every item of Apparel. (Weisfeld Aff., ¶ 4, Doc 183.) 21. The Neal Plaintiffs do not dispute Plaintiff Rivers' contracts or the controlling

provision quoted from the last Rivers contract. The facts Plaintiffs present are immaterial, including the "endorsement" language, which does not apply to the FUBU arrangement. The License Agreement was clearly a "team endorsement," entered into by HGI, and featuring the Globetrotters' name and/or trademark on every item of Apparel. (Weisfeld Aff., ¶ 4, Doc 183.) 22. The Neal Plaintiffs do dispute Plaintiff Sanders' contracts or the controlling

provision quoted from the last Sanders contract. The "endorsement" language is immaterial because it does not apply to the FUBU arrangement. The License Agreement was clearly a "team endorsement," entered into by HGI, and featuring the Globetrotters' name and/or trademark on every item of Apparel. (Weisfeld Aff., ¶ 4, Doc 183.) 23. Plaintiffs have not submitted evidence to dispute the fact contract payment and

other benefits were full compensation for use of players' names. The Neal Plaintiffs generally cite nothing, or inadmissible evidence, for their assertions, or their assertions are unsupported by the record citation. Exhibit 45 lacks foundation and contains inadmissible hearsay. Exhibit 2(A) is an unexecuted copy of the 1977 collective bargaining agreement. Exhibit 2(B) as an incomplete copy of the 1983 collective bargaining agreement. Exhibit 10 as an employment agreement that was never executed between the Globetrotters and Plaintiff Rivers. (Rivers Dep. at 46-48 & Ex 14.)

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Plaintiffs' allegation that they were always received extra compensation for promotional and commercial purposes is unsupported by Plaintiffs' record citations. Instead, the undisputed evidence shows that additional payments for appearances or commercial purposes, if any, were inconsistent. Plaintiffs often did not receive additional compensation, including for product endorsements and cartoons. (E.g., Lemon Dep. at 125-28, 185; Neal Dep. at 77, 78-79, 81-83, 85-86, 88-89; Haynes Dep. at 59-60, 64; Rivers Dep. at 30, 69; Thornton Dep. at 84-85, 104-06; Hall Dep. at 41, 47; Sanders Dep. at 73-74, 81-82.) Sometimes Plaintiffs could not remember if they received additional compensation (e.g., Neal Dep. at 83, 85, 88, 99-100, 155; Sanders Dep. at 84-85) or if so, what the source of the compensation was (e.g., Haynes Dep. at 62; Thornton Dep. at 102; Hall Dep. at 47.) When payment occurred, it might come from the manufacturer of the product or program or entity sponsoring the appearance. (E.g., Lemon Dep. at 96-97, 128, Ex. 8; Haynes Dep. at 69; Sanders Dep. at 42-43, 72-73.) Sometimes payment occurred by virtue of the Collective Bargaining Agreement, as with Plaintiffs' appearances on ABC' "Wide s World of Sports." (E.g., Thornton Dep. at 91-92 & Ex. 11 at 1163-64.) Sometimes payment came from the Screen Actors' Guild (SAG) and American Federation of Television and Radio Artists (AFTRA), of which Plaintiffs were members, including residual checks Plaintiffs received after they left the Globetrotters. (Lemon Dep. at 228, Neal Dep. at 79-81, 87-88, 17273, 176; Haynes Dep. at 61-62; Rivers Dep. at 30; Thornton Dep. at 46, 96, 102; Sanders Dep. at 43-44.) In any case, whether Plaintiffs received the compensation described above as players is immaterial to HGI' legal right to use Plaintiffs' information now, as set forth in the player s contracts and elsewhere. III. THE GLOBETROTTERS'USE OF PLAINTIFFS'NAMES AND LIKENESSES Plaintiffs do not dispute DSOF ¶¶ 24, 26-29, 31, 33-41, 43-53, 55, 58, 60-62. The only time Plaintiffs disputed use of their names or likeness by the Globetrotters was in this lawsuit. 25. The evidence of Lemon appearing on trading cards is located at Hall Dep, Ex. 18,
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Doc 198. 30. Plaintiff Lemon stated on page 127 of his deposition "we don' get any money t

from that when it' rerun all over the world," referring to the Harlem Globetrotters cartoon s characters. (Lemon Dep. at 127, Doc 199.) 32. Plaintiffs have not disputed HGI' financial performance, or sale of programs, and s

their commentary on these facts are immaterial and unsupported. 42. Plaintiff Hall does not present evidence disputing use of his name and photo after

he left the team. The remaining information Plaintiffs present is immaterial to DSOF ¶ 42. 54. The Neal Plaintiffs do not present evidence to dispute Neal' and Haynes' s

awareness of the bobble head dolls. Their explanations of why Plaintiffs Neal and Haynes did not object to the bobbleheads are completely unsupported by any citation to the record. Plaintiffs' remaining allegations are immaterial regarding the percentage payment. 56. The Neal Plaintiffs' response is unsupported by the record citation and immaterial.

Plaintiffs' Exhibit 70 merely shows Plaintiff Haynes was sued by Abe Saperstein regarding his Harlem Magicians basketball team. The settlement, which appears to broadly favor Saperstein, permitted Haynes to use the name "Marques Haynes' Harlem Magicians" and was clearly not a publicity-related suit filed by Haynes. 57. The Neal Plaintiffs' response regarding Lou Dunbar' and Herbie Ausbie' s s

employment is unsupported by the record citation. HGI Defendants do not dispute that Dunbar is a Globetrotters coach. The Neal Plaintiffs' response is also unsupported as to the whereabouts of Clyde Austin. 59. Plaintiff Lemon does not present evidence sufficient to dispute the claim of

reliance on the player contracts, either neglecting to cite any evidence for his assertions, or making conjectures from evidence in the record. HGI Defendants do not dispute the content of the Weisfeld and Blenden depositions, but the testimony does not negate the asserted reliance by HGI.

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IV.

THE GLOBETROTTERS/GTFM LICENSE AGREEMENT A The License Agreement.

Plaintiffs do not dispute HGI SOF 63, 66-68 and 70-74. 64. Plaintiff Lemon has not presented evidence sufficient to dispute Jacksons intent in

acquiring HGI or negotiating with GTFM. Plaintiff' citation to the Vaughn deposition does not s discuss promotion of the programs, and as Plaintiff' record citation shows (Pl' Ex. J at 26-27, s s Doc 283), the Wall of Fame is merely a wall located in the Globetrotters office listing and showing photographs of designated Globetrotters players. Unless one personally visits the Globetrotters office in Phoenix, one would never see the Wall of Fame. Plaintiff' statements s are unfounded conjecture. 65. The Neal Plaintiffs do not appear to dispute GTFM' inclusion of player names in s

the License Agreement. The claim that Plaintiffs names are well-known is completely unsupported by the record citation. Exhibit 12 lacks foundation. 69. The Neal Plaintiffs appear to dispute the legal conclusion HGI can rely upon the

players contracts. This reliance is addressed in the memorandum of law. Plaintiffs' additional assertions are immaterial, and the HGI Defendants do not address them. 75. Plaintiffs present no information sufficient to dispute lack of personal profit by

Jackson. Lemon' Exhibit P lacks foundation. Neal' Exhibit 53 is an incomplete composite s s exhibit. Even if they were admissible, these Exhibits are immaterial to whether Mr. Jackson profited from the License Agreement individually. 76. Plaintiff Lemon does not present any evidence to dispute the claim that

manufacture of merchandise is commonly performed overseas. Mr. Jackson, as CEO of a business that does a considerable amount of merchandising, is qualified to testify to this fact (as the Neal Plaintiffs concede). (E.g., Jackson Aff., ¶ 6, Doc 261.) B. The Merchandise.

Plaintiffs do not dispute HGI SOF 77, 80 and 81.
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78.

The Neal Plaintiffs' response that the Apparel included underwear is without

support, but immaterial. 79. Only a small percentage of the Apparel used Plaintiffs' names or numbers.

Lemon' response is unsupported by the record citation: he has not pointed to where, in their s expert' report and voluminous exhibits, it is indicated that a "large percentage" of the Apparel s related to Plaintiffs. See Orr v. Bank of Am., 285 F.3d 764, 774-75 (9th Cir. 2002) (stating failure to include deposition page number warrants exclusion of the evidence). The Neal Plaintiffs do not appear to dispute DSOF ¶ 79. Plaintiffs' contention that sales at retail were estimated at $100 million is immaterial and unsupported by the record. Mr. Jackson was not referring to the License Agreement with the phrase "100 million dollar deal." The record indicates that Mr. Jackson' testimony was that Harlem Globetrotters International, s Inc. is a "100 million dollar business." (Pls' Ex. 7.) 82. Plaintiffs lack evidence on whether and to what extent their names were used on

hangtags. Lemon' Exhibit Q and Neal' Exhibit 12 lack foundation. Mr. Weisfeld testified s s that "I don' know when or actually if [the hangtags] were used" and that while all of the t Apparel would have tags, it was "not necessarily these tags." (Weisfeld Dep. at 57, 60, Lemon Ex N, Doc 283.) C. Globetrotters'Royalties

Plaintiffs do not dispute HGI SOF 83, 85-87 and 90. 84. Neither Plaintiff Lemon nor the Neal Plaintiffs present evidence sufficient to

dispute the claim that the players and the Foundation received 8% each of the HGI royalty or that this was a market rate. Plaintiff Lemon acknowledges he cannot dispute Mr. Jackson' s statement that 8% was market. Neal Plaintiffs make an immaterial inference that HGI sent money to Plaintiffs in response to their demand letter. The undisputed evidence shows that almost a year prior to sending these checks, on December 31, 2002, HGI voluntarily sent Plaintiffs Neal and Haynes checks for a similar program for bobblehead dolls. (Syracuse Aff.,

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¶¶ 4-5 & Ex. A, B, Doc 208.) Evidence of other, past licensing rates are immaterial because they do not establish a different market rate. The FUBU sublicense to Jordache is immaterial since it did not specifically relate to Plaintiffs. The 25% for the bobbleheads was "extremely generous" and did not have a foundation in any market rate, as Plaintiff' citation (to their Ex s 1A, Jackson Tr. 176) shows. The collective bargaining agreement figure is immaterial because the player union no longer exists. (Nikolas Dep. at 32, Doc 261; Horton Dep. at 52, Doc 261; Jackson Aff., 11/22/05, ¶ 3, Doc 261.) Furthermore, any fee Plaintiffs received as active Globetrotters players is immaterial to what percentage they would earn today, after being retired for anywhere from thirteen to thirty-one years. Neal' 1988 contract (Pls' Ex. 38) is immaterial s because it was a public relations, not player contract, and is outdated. 88. Plaintiffs do not present evidence to dispute DSOF ¶ 88. Lemon' response is s

unsupported by the record citation. Lemon' player contracts speak for themselves and show s HGI had the right to use Plaintiff' names and likeness. Plaintiff Lemon' affidavit (Pl' Ex. I) s s s contains conclusory, self-serving statements insufficient to respond to a motion for summary g judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing n, House, 104 F. 3d 1168, 1171 (9th Cir. 1997). The Neal Plaintiffs make an immaterial inference that HGI sent money to Plaintiffs in response to their demand letter. The undisputed evidence shows that almost a year prior to sending these checks, on December 31, 2002, HGI sent Plaintiffs Neal and Haynes checks for a similar program for bobblehead dolls. (Syracuse Aff., ¶¶ 4-5 & Ex. A, B, Doc 208.) The 1983 CBA provision is immaterial because the union no longer exists (Nikolas Dep. at 32, Doc 261; Horton Dep. at 52, Doc 261; Jackson Aff., 11/22/05, ¶ 3, Doc 261), and any fee Plaintiffs received as active Globetrotters players are immaterial to what percentage they would earn today, after being retired for anywhere from thirteen to thirty-one years. Additionally, the 1983 collective bargaining agreement contains an attachment-- excluded from the Plaintiffs' copy-- that specifically incorporates the publicity and licensing paragraph of the standard player

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contract signed by all Plaintiffs into the collective bargaining agreement. (Thornton Dep. at 8687, 91, Ex. 11 at 1126, 1163; Ex. 8 ¶ 12(a), Doc. 261.) All other facts Plaintiffs cite are immaterial. 89. Plaintiffs do not dispute the fact that payments were terminated by GTFM after

suit was filed. All other facts the Neal Plaintiffs cite are immaterial. 91. Plaintiff Lemon has not disputed the cessation of sales by GTFM. Whether

retailers are still selling the Apparel is a completely different issue. Plaintiff Lemon has not presented evidence that GTFM is selling the Apparel. IV. PLAINTIFFS AND THE APPAREL Plaintiffs do not dispute DSOF ¶¶ 92-94, 96, 98-101, 104-107. 95. Plaintiffs have offered no documentary evidence of confusion. Neal Plaintiffs

conceded this fact. Plaintiff Lemon' Reply is unsupported by the record citation. Neither Mr. s Jackson' nor Mr. Blenden' depositions, which Plaintiff Lemon cites, discuss consumer s s confusion. 97. Plaintiffs have not presented evidence disputing Ms. Abalos' testimony on page 32

and 35 of her deposition that use of Plaintiffs'information without reference to the Globetrotters marks is worth a lot less than 8% or 8-10%. Plaintiff' remaining facts are immaterial or are s legal conclusions addressed in the memorandum of law. 102. Plaintiff Lemon concedes Plaintiffs Rivers, Neal Sanders or Thornton have no

knowledge of the appropriate royalty rates. The Neal Plaintiffs do not and cannot dispute their own deposition testimony supporting DSOF ¶ 102. Indeed, to the extent Plaintiffs' affidavits contradict their deposition testimony, they cannot create a genuine issue of disputed fact. Hambleton Bros. Lumber Co. v. Balkin Enters., 297 F.3d 1217, 1225 (9th Cir. 2005) ("Under our ` sham' affidavit rule, ` party cannot create an issue of fact by an affidavit contradicting his a prior deposition testimony' (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th .") Cir. 1991). The facts Plaintiffs do cite are immaterial and the HGI Defendants do not address

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them here. 103. Plaintiff Lemon has not cited evidence sufficient to establish economic damages.

Plaintiff' citation to his expert' report is unavailing because he does not provide a page s s number. See Orr v. Bank of Am., 285 F.3d 764, 774-75 (9th Cir. 2002) (stating failure to include deposition page number warrants exclusion of the evidence). In any case, that report indicates that the only monetary recovery Plaintiff seeks is Defendants' profits and does not specify any damage to any individual Plaintiff, such as lost wages or lost opportunity. Plaintiff' citation to his own complaint is insufficient to respond to a summary judgment s motion. Fed. R. Civ. P. 56(e). The Neal Plaintiffs admit they do not have economic damages and seek only Defendants' profits. Whether Plaintiffs were embarrassed is immaterial to because embarrassment is not an economic damage. V. PLAINTIFFS'CURRENT ACTIVITIES Plaintiffs admit none have registered their names, likenesses, or numbers with the U.S. Patent & Trademark Office. (DSOF ¶ 108.) A. Plaintiff Haynes

Plaintiffs do not dispute DSOF ¶ 109. 110. The Neal Plaintiffs misrepresent DSOF ¶ 110. Even so, they do not present

sufficient evidence to dispute Plaintiff Haynes' receipt of $50,000 by Haynes 3-4 years ago. Plaintiff Haynes testified on direct examination: Q: Did you understand those services to exclude licensing? A: No. (Haynes Dep. at 45, Doc 196.) He also stated on cross by his own counsel that "[n]othing was pointed out nor nothing was listed as to what services meant," but that it had to do with publicity. (Id. at 108-09, Doc 196.) HGI Defendants did not discuss merchandising and endorsements in DSOF ¶ 110 and do not address Plaintiffs' contentions regarding these issues.

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111.

The Neal Plaintiffs do not identify any product or service sold or endorsed by

Haynes since he left HGI. They cite page 13 of Plaintiff Haynes' deposition, which states: Q: Have you been asked to endorse any products or services since you left the Globetrotters? A: I don' know of any that I have endorsed. t (Haynes Dep. at 13, Doc 196.) Haynes' testimony regarding golf tournaments, church meetings, and athletic banquets does not contradict his testimony regarding endorsements. (Id.) Neither does his testimony regarding the Bucketeers. Exhibit 66 lacks foundation and contains inadmissible hearsay; additionally, this document was not disclosed until after the close of discovery. (Interestingly, if it is valid, it specifies that Mr. Haynes will receive only 5% for merchandise related to the purported movie, 3% less than he got from HGI for the Apparel. Plaintiffs' Ex. 66 at 9.) It is a misrepresentation for Mr. Haynes to say he "was paid by HGI to endorse the Bobblehead dolls in March 2004 . . . (after Plaintiffs filed suit)." The undisputed evidence shows that HGI made voluntary payments to Mr. Haynes for the bobblehead program even though it was not obliged to do so, in a good will gesture to alumni. (Syracuse Aff., ¶¶ 4-5 & Ex. A, B, Doc 208.) These payments began in December 2002, well before Plaintiffs filed suit in this case. (Id.) Exhibit 48 is a composite exhibit and does not support Plaintiffs' response. Plaintiffs' claims that Mr. Haynes is "still a basketball celebrity" is unsupported by the record citation, and whether HGI even asked Haynes to cease using his name and likeness is immaterial. B. Plaintiff Hall.

Plaintiffs do not dispute DSOF ¶ 112. 113. The Neal Plaintiffs have not presented evidence that Mr. Hall has not engaged in

any endorsements or appearances since he left the Globetrotters. Other facts Plaintiffs cite are not disputed or are immaterial. HGI objects to Exhibit 46 as lacking foundation and containing inadmissible hearsay.
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C.

Plaintiff Lemon.

Plaintiffs do not dispute DSOF ¶¶ 114-116, 122, 123, 125-128. 115. Plaintiff Lemon does not present evidence sufficient to raise a genuine issue. His

deposition testimony was that he has not entered into a licensing agreement of any significance in the last seven years and was not looking for any. To the extent he tries to create an issue of disputed fact with conclusory and self-serving statements in his affidavit, this attempt must be rejected. Hambleton Bros. Lumber Co. v. Balkin Enters., 297 F.3d 1217, 1225 (9th Cir. 2005) ("Under our ` sham' affidavit rule, ` party cannot create an issue of fact by an affidavit a contradicting his prior deposition testimony' (quoting Kennedy v. Allied Mut. Ins. Co., 952 .") F.2d 262, 266 (9th Cir. 1991). 121. Plaintiff Lemon does not present any evidence his demands were in HGI' best s

interest or to support his affirmative allegations, and thus does not create an issue of disputed fact. 124. Plaintiff does not present any evidence to support his statement that Plaintiff

Lemon' team uniforms were not similar to the Globetrotters' thus, this fact is not disputed. s ; D. Plaintiff Neal.

Plaintiffs do not dispute DSOF ¶¶ 129-132. 133. The Neal Plaintiffs do not present evidence that Mr. Jackson set out to embarrass

Neal with respect to the disputed Apparel. E. Plaintiff Thornton.

Plaintiffs do not dispute DSOF ¶ 135. 134. The Neal Plaintiffs do not present evidence sufficient to show Mr. Thornton has

licensed or endorsed any product since leaving HGI. Mr. Thornton' deposition testimony was: s Q: During the entire time that you were a player and through to today, have you endorsed any products? A: Yes. Q: Which ones?
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A: Juvenile diabetes. Q: That' a charity? s A: Well, that' a product. s Q: Well, I' not arguing that, but I' asking you the question. That' a charity? m m s A: Oh, okay. No, I haven' ­ are you asking me have I endorsed products like t Coca Cola or water? Q: Right. A: No. (Thornton Dep. at 106-07, Doc 201.) Plaintiff' Exhibit 46C lacks foundation and contains s inadmissible hearsay. 136. The Neal Plaintiffs have not disputed Mr. Jackson' lack of intent to harm s

Thornton. Thornton' claim that lack of compensation has caused harm is addressed in the s memorandum of law. F. Plaintiff Rivers.

Plaintiffs do not dispute DSOF ¶¶ 138-140 and 142. 137. The Neal Plaintiffs do not present evidence Rivers has not been asked to license

any product or services since he left the Globetrotters. It is a misrepresentation to say HGI "copromoted a basketball event endorsed by Rivers." As DSOF ¶ 140 shows, HGI was doing Rivers and his Gatorball Academy a favor by donating proceeds from a game in Rivers' town to Gatorball Academy. This donation does not constitute a license. HGI Defendants acknowledge that Plaintiff Rivers claims he did a Kellogg' Corn Flakes commercial, but in any case, s Plaintiff' record citation shows that this occurred shortly after he left the team in 1985, twenty s years ago. (Rivers Dep. at 12.) The fact that Plaintiff Rivers does 10-15 paid appearances per year does not support the inference that he licenses his name and likeness. Plaintiff' Exhibit s 46B lacks foundation and contains hearsay. 141. The Neal Plaintiffs have not presented evidence sufficient to dispute DSOF ¶ 141.

The facts Plaintiffs do present are immaterial and HGI Defendants do not address them. G.
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Plaintiff Sanders

Plaintiffs do not dispute DSOF ¶ 144.

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143.

The Neal Plaintiffs have not presented evidence sufficient to show Sanders has

any licensing agreements. As Mr. Sanders testified, he paid for t-shirts benefiting the Special Olympics with his own money as a fundraiser for the charity. (Sanders Dep. at 104.) This does not indicate that Mr. Sanders has had a license agreement in the last 15 years. Plaintiffs' remaining facts are immaterial. VI. PLAINTIFFS'LACK OF EVIDENCE Plaintiffs do not dispute DSOF ¶¶ 145, 146, 155 and 157. 147. Plaintiff Lemon' response is insufficient to show that any of the Plaintiffs have s

produced goods like the Apparel. The citations to his deposition relate only to his Ministry and Meadowlark Lemon' Harlem All-Stars, and do not support his response. Plaintiff Lemon' s s self-serving, conclusory affidavit is insufficient to support a response to a motion for summary judgment and should be disregarded. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); n, FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). The remaining Plaintiffs g concede none have produced goods like the Apparel. 148. Plaintiff Lemon' does not present evidence showing he has a strong mark that is s

recognized by the segment of society that purchased the Apparel. Lemon' citations to the s Jackson and Blenden depositions say nothing about Plaintiff' evidence and do not address s whether his "mark" is recognized among the segment of society that has purchased the Apparel. By contrast, GTFM' Bruce Weisfeld testified, "I think to the kids who would be buying the s product, they probably never heard of these guys." (Weisfeld Dep. at 59.) Plaintiff Lemon' s citation to his conclusory, self-serving affidavit does not create a genuine issue of fact. The Neal Plaintiffs refer to Exhibits 44, 46A-E, and 66, 67, and 68 which lack foundation, contain hearsay, and fail to support Plaintiffs' assertions. Plaintiffs' assertions regarding Hall and Rivers do not indicate that Plaintiffs' names are strong marks or are recognized among the segment of society that purchased the Apparel. HGI also notes that Rivers' Kodak endorsment occurred with the Globetrotters, and that the other cited activities

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occurred between 1985 and 1988, up to twenty years ago. (Rivers Dep. at 12, 40.) 149. Plaintiff Lemon has not presented evidence that the Apparel creates confusion.

The citations to the Jackson and Blenden depositions do not even discuss Plaintiff' former s player number, much less consumer confusion related to that number. Plaintiff' conclusory, s self-serving statements in his affidavit are not sufficient to create a disputed issue of material fact on summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. n, Publ' Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). g The Neal Plaintiffs have presented no evidence that Apparel with their player number alone caused confusion. Plaintiffs' response does not offer any evidence of consumer confusion. 150. Plaintiff Lemon has not presented evidence that consumers mistakenly believed

Plaintiffs endorsed the Apparel, separately from the Globetrotters' endorsement. The citations to the Jackson and Blenden deposition do not discuss consumer confusion as to whether consumers thought Plaintiff Lemon separately endorsed the Apparel. Plaintiff' conclusory, s self-serving statements in his affidavit are not sufficient to create a disputed issue of material fact on summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. n, Publ' Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). g The Neal Plaintiffs have not presented any relevant evidence. Plaintiff Hall' testimony s only states that people ask to borrow money because they think he' in a lawsuit related to the s Apparel, not that they think he endorsed the Apparel separately from the Globetrotters. (HGI Defendants do not know what Plaintiffs refer to as "PSOF ¶ 115.") 151. Plaintiff Lemon has not presented survey evidence or other evidence showing

confusion. Lemon refers to the same citations to the Jackson and Blenden deposition, which are not survey evidence, retailer testimony, consumer testimony, or expert testimony showing consumer confusion. Plaintiff' conclusory, self-serving statements in his affidavit are not s sufficient to create a disputed issue of material fact on summary judgment. Lujan v. Nat.

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Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 n, g (9th Cir. 1997). The Neal Plaintiffs cite the hangtags and investigator testimony as evidence. Exhibit 12 lacks foundation, and Plaintiffs do not indicate what in Exhibit 13A supports their claim. The Phipps affidavit also contains inadmissible hearsay and does not constitute survey evidence, retailer testimony, consumer testimony, or expert testimony showing consumer confusion. 152. Plaintiff Lemon has not presented evidence that Defendants benefited from the use

of Plaintiffs' names. The Weisfeld deposition (Plaintiff' Ex. N) does not support Plaintiff, and s in fact, as Plaintiff' record citation shows, supports the opposite conclusion: "I don' know s t when or actually if [the hangtags] were used" and that while all of the Apparel would have tags, it was "not necessarily these tags." (Weisfeld Depo. At 57, 60; Lemon Ex. N Doc 283). Exhibit Q lacks foundation. Exhibits H and O-- again, Mr. Jackson' and Mr. Blenden' immaterial s s opinion testimony-- do not show Plaintiff' name was used for advertising. Plaintiff Lemon' s s affidavit is also off-point and is conclusory and self-serving testimony insufficient to create a disputed issue of material fact on summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. n, 871, 888 (1990); FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). g The Neal Plaintiffs offer as evidence Exhibit 12 (which lacks foundation). Plaintiffs have no evidence whether and to what extent the hangtags were used on the Apparel. As FUBU executive Bruce Weisfeld testified, "I don' know when or actually if [the hangtags] were used" t and that while all of the Apparel would have tags, it was "not necessarily these tags." (Weisfeld Dep. at 57, 60, Lemon Ex N, Doc 283.) Plaintiffs' remaining assertions are not supported by their record citations. 153. Plaintiff Lemon has not produced evidence that HGI Defendants intended to profit

by confusing consumers. The Weisfeld deposition (Plaintiff' Exhibit N) does not show that s GTFM or HGI intended to profit from consumer confusion related to Plaintiffs. Exhibit Q lacks foundation, but it does not support Plaintiffs in any case.

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The Neal Plaintiffs also produce no relevant evidence. While both GTFM and HGI did intend to profit from the License Agreement, no evidence shows that Defendants intended to profit from consumer confusion regarding Plaintiffs, the relevant Lanham Act inquiry. Plaintiffs' citation to Exhibit 7 does not contradict DSOF ¶ 153, and in fact reveals that Mr. Jackson was talking about the Harlem Globetrotters as a business, not the FUBU deal in particular, with the $100 million figure. 154. Plaintiff Lemon has not produced evidence that the HGI Defendants willfully or

deliberately infringed upon the plaintiffs' rights. The Neal Plaintiffs, realizing that they cannot show that the HGI Defendants willfully or deliberately infringed on Plaintiffs' rights, default to "reckless disregard." Plaintiffs' response is immaterial (see memorandum of law). 156. Plaintiff Lemon has not produced any evidence of defamation by Jackson.

Plaintiff cites the supposedly defamatory Arizona Republic article but has not shown that the article has brought him into disrepute, contempt, or ridicule, or that Plaintiff' honesty, integrity, s virtue, or reputation were impeached. None of the pages Plaintiff cites from Spinning the Globe contain statements from Mr. Jackson about Lemon-- good, bad, or otherwise. See memorandum of law. RESPECTFULLY SUBMITTED this 19th day of December, 2005.

By: s/ Edward R. Garvey____________ Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913

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Attorneys for Defendants Harlem Globetrotters Int' l, Inc., Harlem Globetrotters Int' Foundation, and l Mannie L. & Catherine Jackson CERTIFICATE OF SERVICE 1. I hereby certify that on December 19, 2005, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Edward R. Garvey ­ [email protected] Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected] Joel Louis Herz - [email protected] Ira S. Sacks ­ [email protected] Anders Rosenquist, Jr. ­ [email protected] Clay Townsend ­ [email protected] Robert W. Goldwater, III ­ [email protected] 2. I hereby certify that on December 19, 2005, 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 Colling & Gilbert PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802 Brandon Scott Peters Goldwater Law Firm 15333 N Pima Rd Ste 225 Scottsdale, AZ 85260

s/ Melody Tolliver

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