Free Reply - 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 (602) 916-5414 [email protected] 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' Inc., l, Harlem Globetrotters International 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 DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON' S REPLY TO THE NEAL PLAINTIFFS' ADDITIONAL STATEMENT OF FACTS

13 MEADOWLARK LEMON, et al., 14 15

Plaintiffs, vs.

HARLEM GLOBETROTTERS 16 INTERNATIONAL, INC., et al.;
17

Defendants.

18 HARLEM GLOBETROTTERS 19 corporation, 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1743214.2/43458.007 Document 349 Filed 12/19/2005 Page 1 of 30

INTERNATIONAL, INC., an Arizona Counterclaimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant. Pursuant to District Court of Arizona LRCiv 56.1(a), Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie & Catherine

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Jackson (collectively, "HGI Defendants") submit the following Reply to Plaintiff Neal et al.' s ("the Neal Plaintiffs' additional statement of facts (NASOF, Doc 281), submitted in response ") to the HGI Defendants' motion for summary judgment. The HGI Defendants reply separately to the Neal Plaintiffs' responses to HGI' statement of facts, which the Neal Plaintiffs filed with s their additional statement of facts in Docket 281. Most of the "additional" facts submitted by the Neal Plaintiffs are direct copies of proposed facts these Plaintiffs filed in support of their own motion for summary judgment (NSOF, Doc 290), to which the HGI Defendants have already responded (RNSOF, Doc 266). The HGI Defendants again respond to these prior facts below. 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 The HGI Defendants object to several exhibits attached to the declaration of Clay Townsend, attorney for the Neal Plaintiffs, and all statements of fact relying thereon. The HGI Defendants object to these exhibits because they lack foundation, contain hearsay, or simply are not what Attorney Townsend says they are. Many documents are irrelevant in any case, but HGI raises relevancy objections in their responses to each of Plaintiffs' Additional Statements of Fact, infra. A. Exhibits Lacking Foundation

Mr. Townsend' affidavit attaches a number of exhibits of which he lacks personal s knowledge or other foundation, and which have not been authenticated elsewhere in the record. (Townsend Dec., Doc 273.) These are Exhibits 12, 21, 25, 40, 41, 42, 43, 44, 45, 46, 50, 55A, 55B, 58, 59, 60, 62, 65, 66, 67, and 69.1 Mr. Townsend does not indicate that he has personal
1

These documents are described in the Townsend Declaration as follows, prefaced by the words, "true and correct":

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knowledge of these documents, many of which are decades old, and fails to lay foundation for them. These exhibits cannot be used to oppose a motion for summary judgment. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a). It is well settled that unauthenticated documents cannot be considered in response to a motion for summary judgment. 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." 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2722 at 58-60 (2d ed 1983) (footnotes omitted. This court has consistently held that documents which have had no proper foundation to authenticate them cannot support a motion for summary judgment. We hold that such documents may not be relied upon to defeat a motion for summary judgment. Canada v. Blain' Helicopters., Inc., 831 F.2d 920, 925 (9th Cir. 1987) (citations omitted) s (emphasis added). The practice of party attorneys attaching documents of which they lack personal knowledge or which lack other foundation was specifically rejected in Orr
Exhibit 12: "Hang Tag" Exhibit 21: "the schedule of Merchandise Payments to Neal." Plaintiffs claim some documents were produced by HGI and some by Plaintiff Neal but do not distinguish which ones. Exhibit 25: "the Schedule of Plaintiffs' Marks, and was produced by Plaintiffs." The document does not indicate what documents were relied upon to create the exhibit or who created it. Exhibit 40: "pay stubs to Neal" Exhibit 41: "the Union Settlement Agreement with the Globetrotters and Neal" Exhibit 42: "the Dunbar and Thornton Collective Bargaining Agreement Negotiations" Exhibit 43: "the NLRB Certification of the United Basketball Players Association, and a Collective Bargaining Agreement" Exhibit 44: "Neal' publicity" s Exhibit 45: "Payments for Neal' Appearances and Endorsements" s Exhibit 46: "Plaintiffs' profiles" Exhibit 50: "the memo regarding the Neal Contract of 1988." This document was produced by HGI, but HGI has no knowledge of who wrote it, who received it, or what its intended purpose was. Exhibit 55A: "the Collective Bargaining Agreement of 1977" Exhibit 55B: "the Collective Bargaining Agreement of 1980" Exhibit 58: "the Harlem Globetrotters Foundation Receipt Report" Exhibit 59: "the HGI Corporate Filing" Exhibit 60: "the HGI Sub-S(?)" Exhibit 62: "Foundation Cash Journals" Exhibit 65: "Haynes Publicity." Exhibit 66: "Endorsements and Appearances of Haynes" Exhibit 67: "Rivers' publicity" Exhibit 69: "Greeson/Gillette Correspondence"

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v. Bank of America. 285 F.3d 764, 773 (9th Cir. 2002) (striking most of plaintiff' s documents responding to summary judgment motion as inadmissible due to inadequate authentication or hearsay). The HGI Defendant thus ask the Court to disregard these exhibits and any facts relying thereon. B. Exhibits Containing Hearsay.

Attorney Townsend' affidavit 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, 69.2 "[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
2

These documents are described as follows in the Townsend declaration, prefaced by the words, "true and correct":

Exhibit 10: "The Globetrotters Letter dated 1985 to Gator Rivers" Exhibit 21: "the schedule of Merchandise Payments to Neal." Exhibit 39: "the ` Cease and Desist' Letter from Neal to HGI" Exhibit 40: "pay stubs to Neal" Exhibit 41: "the Union Settlement Agreement with the Globetrotters and Neal" Exhibit 42: "the Dunbar and Thornton Collective Bargaining Agreement Negotiations" Exhibit 43: "the NLRB Certification of the United Basketball Players Association, and a Collective Bargaining Agreement" Exhibit 44: "Neal' publicity" s Exhibit 45: "Payments for Neal' Appearances and Endorsements" s Exhibit 46: "Plaintiffs' Profiles" Exhibit 47: "the cover of the book ` Spinning the Globe' by Ben Green" Exhibit 50: "the memo regarding the Neal Contract of 1988." This document was produced by HGI, but HGI has no knowledge of who wrote it, who received it, or what its intended purpose was. Exhibit 55A: "the Collective Bargaining Agreement of 1977" Exhibit 55B: "the Collective Bargaining Agreement of 1980" Exhibit 58: "the Harlem Globetrotters Foundation Receipt Report" Exhibit 59: "the HGI Corporate Filing" Exhibit 60: "the HGI Sub-S(?)" Exhibit 62: "Foundation Cash Journals" Exhibit 65: "Haynes Publicity." Exhibit 66: "Endorsements and Appearances of Haynes" Exhibit 67: "Rivers' publicity" Exhibit 69: "Greeson/Gillette Correspondence." All of the correspondence is from Lemon' then-agent, Stan s Greeson.

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judgment). Since 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. s 927 (1982). These exhibits, and any facts relying thereon, are inadmissible. C. Exhibits that are Not What Plaintiffs Claim.

Attorney Townsend' affidavit attaches and describes a number of documents that are not s what he says they are. His misleading descriptions of these documents are corrected below. Some documents should be excluded because they are not accurate duplicates, per Fed. R. Evid. 1003. Plaintiffs describe Exhibit 2A as a 1977 collective bargaining agreement, but the agreement is unexecuted by one of the parties, the United Basketball Players' Association. Plaintiffs describe Exhibit 2B as a "the Collective Bargaining Agreement dated 1983," yet they produce an incomplete copy of the document which excludes a critical exhibit. This document should be excluded because it is not an accurate duplicate. Fed. R. Evid. 1003. A true and correct copy is found at Doc 261, attached as Exhibit 11 to the Thornton Deposition. Plaintiffs describe Exhibit 5B as a "Bill of Sale" and 5C as a "Revised Bill of Sale" when both of these documents are composite exhibits that include unsigned drafts of a bill of sale, or portions of those drafts. These documents are immaterial in any case because a final copy of the asset purchase agreement by which HGI and Mannie Jackson & Associates purchased the Globetrotters from HG, Inc., is contained in the record. (E.g., Nikolas Dep. Ex. 1, Doc 261.) Exhibit 9D was produced by GTFM, not HGI, as the bates numbers at the bottom of the document clearly indicate.

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Plaintiffs describe Exhibit 10 (also found at Exhibit 56A) as "the Player contract of Gator Rivers," yet the contract is unexecuted by either Plaintiff Rivers or the Globetrotters. Plaintiffs describe Exhibit 14 as "HGI Sales Record" when it is clearly a FUBU royalty analysis. It was not produced by HGI, as Plaintiffs contend. Plaintiffs describe Exhibit 17 as "LL Cool J Pleadings" or "Complaint" when it appears to be a brief submitted by the plaintiff in that case. Plaintiffs describe Exhibit 21 as a "copy of the schedule of Merchandise Payments to Neal" when it is a composite document appearing to contain memoranda, pay stubs, and other documents. Plaintiffs describe Exhibit 42 as "the Dunbar and Thornton Collective Bargaining Agreement Negotiations" when it appears to be a composite document containing memoranda to United Basketball Players' Association members from a union attorney. In one of their more severe misrepresentations, Plaintiffs describe Exhibit 43 as "the NLRB Certification of the United Basketball Players Association, and a Collective Bargaining Agreement," when it appears only to be a letter to Curly Neal from a union attorney referencing an expected certification. Plaintiffs describe Exhibit 47 as a "copy of the cover of the book ` Spinning the Globe' by Ben Green" when it appears to be a composite document containing a letter and pages from the book. Plaintiffs describe Exhibit 48 as "the ` Bobblehead Doll Promotion' HGI Defendants do ." not know what is meant by this term, but the document appears to be a composite including a letter, check, and printouts from a website. Plaintiffs describe Exhibit 51 as "the Letter from the Globetrotters Foundation rejecting Neal' request for help," when it did not reject Neal' request for help at all. The letter merely s s requested more information from Mr. Neal, including an explanation of why he needed

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assistance from the Foundation, so that the Foundation could make an informed decision about Mr. Neal' request. s Plaintiffs describe Exhibit 52 as "Neal' Appearance Agreement with HGI," although it s is unexecuted by HGI. Plaintiffs describe Exhibit 53 as "the HGI Holdings Transaction of September 21, 2005," yet it is an incomplete composite exhibit. Plaintiffs describe Exhibit 55A as "the Collective Bargaining Agreement of 1977," when it appears only to be an unexecuted, two-page letter. Plaintiffs describe Exhibit 58, 59, and 62 as "Foundation Receipt Report," "HGI Corporate Filing," and "Foundation Cash Journals," but these documents appear to be incomplete. Plaintiffs describe Exhibit 60 as "HGI Sub-S(?)," but aside from it being unclear what this means, the document actually appears to be one page of financial statement notes, and do not reference the term "Sub-S." D.
"Plaintiffs'Profiles"

Finally, attached as Exhibit 46 to Attorney Townsend' affidavit are "Plaintiffs' s Profiles," which purport to be a compilation of facts that supposedly support Plaintiffs' claims to celebrity. Many of the facts rely on documents that lack foundation or contain hearsay (e.g., Exhibits 44, 45, and 65 to the Townsend Declaration). The alleged facts contained in the "Profiles" also violate LRCiv 56.1(a), because they are not set forth in Plaintiffs' statements of fact. Plaintiffs' backdoor attempt to submit a Fed. R. Evid. 1006 summary should be rejected, and any facts based on the "Plaintiffs' Profiles" disregarded. Notwithstanding and without waiving these objections, the HGI Defendants respond to the Neal Plaintiffs' additions statements of fact as follows.

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RESPONSES TO THE NEAL PLAINTIFFS'ADDITIONAL STATEMENT OF FACTS HGI does not dispute the Neal Plaintiffs' additional SOF 8, 9, 12, 13, 15-20, 23, 24, 28, 31, 49, 50, 62-65, 67 and 72. HGI responds to Neal' other facts as follows: s 1. Plaintiffs were variously employed as players and player-coaches for Harlem

Globetrotters entities from 1946 (Haynes) through 1991 (Sanders), most having terminated their employment decades before the License Agreement of 2002 (FUBU Motion p. 6, lines 8-15) citing to Plaintiffs' depositions), wherein HGI granted FUBU a license to manufacture and distribute merchandise. RNASOF 1: Undisputed, except Plaintiffs do not rely on a deposition, affidavit, or other form of admissible evidence per Fed. R. Civ. P. 56 and LRCiv 56.1(a). HGI Defendants do not know what is meant by "Harlem Globetrotters entities" but do not dispute Plaintiffs played for the Harlem Globetrotters at various times from 1946 to 1992, not 1991. (Sanders Dep. at 31-32, 53, Doc 198) 2. The United Basketball Players Association (hereinafter "UBPA"), organized in

1974 (Ex. 43) to represent players for the Harlem Globetrotters, entered into several Collective Bargaining Agreements (CBA' including agreements in 1977 and 1983, with various s), amendments pursuant to which Harlem Globetrotters, Inc. (a corporate name utilized by various owners) agreed to pay royalties on merchandise sales to the players (Exhibit 2B, CBA Article 14.12) (Ex. 1K, Neal Tr. 26), and provided rights considered "minima" and supplemental to, and superceding, the individual players contracts (Exhibit 2B, CBA Article 2.1). The term was through August 31, 1986, with annual automatic renewals. (Id., Article 16.1). Sanders understanding in 1988 was the CBA was still in effect (Ex. 1T, Sanders Tr. 118). HGI 25-yr employee Dunbar says, "we didn' do anything to disband it" (Ex. 1M, Dunbar Tr. 44-45). t RNSOF 2: Plaintiffs rely on inadmissible or incomplete evidence. Exhibit 43 lacks foundation and contains hearsay. Exhibit 2B is an incomplete copy of the 1983 collective bargaining agreement ("CBA") which excludes several pages that were authenticated by

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Plaintiff Thornton (pages 1160-1164). (Compare Ex. 2B with Thornton Dep. Ex. 11, Doc 261.) The HGI Defendants do not dispute the existence of a union in approximately the late 1970s to the mid-1980s. Plaintiffs' claim that the CBA "superceded" [sic] the individual player contracts is unsupported by the record citation, however. As the undisputed evidence shows, the collective bargaining agreements were "additional benefits" that did not limit the rights to either side of the individual contract. (Thornton Dep. at 38, Doc. 261). In fact, the 1983 collective bargaining agreement contains an attachment-- omitted from the Plaintiffs' copy-- that specifically incorporates paragraph 12(a), the publicity and licensing paragraph of the standard player contract signed by all Plaintiffs into the collective bargaining agreement. (Thornton Dep. at 86-87, 91, Ex. 11 at 1126, 1163; Ex. 8 ¶ 12(a), Doc. 261; Neal Dep. at 42, Ex 37 ¶ 12(a), Doc 199; Sanders Dep. at 40-41, Ex. 8 ¶ 12(a), Doc 198; Rivers Dep. at 42, Ex. 11 ¶ 12(a), Doc 201.) The HGI Defendants do not dispute that the CBA provided for merchandising payments for active players in certain circumstances set forth in the CBA. The HGI Defendants do not dispute Mr. Sanders' and Mr. Dunbar' statements, s' but the undisputed evidence shows the union does not exist today. At the time of the bankruptcy and MJA and HGI' purchase of the Globetrotters in 1993, there was no s evidence that a union was in existence. (Nikolas Dep. at 32, Doc 261; Horton Dep. at 52, Doc 261; Jackson Aff., 11/22/05, ¶ 3, Doc 261.) One of the documents cited in the purchase agreement was "union decertification." (Nikolas Dep. at 11 & Ex. 1 at 1377, Doc 261.) Since the union no longer exists, any disputes about the union and past agreements are immaterial. Even if the union contract was somehow applicable, the fact that it incorporated the publicity provision of the standard player contract further renders any disputes about the contract immaterial.

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3.

Harlem Globetrotters, Inc. (unrelated to Defendant Jackson' HGI) bought the s

Harlem Globetrotters from International Broadcasting Corp ("IBC") in 1993, a corporation that filed for bankruptcy [sic] on August 30, 1991. (Exhibit 5A). RNSOF 3: The HGI Defendants do not dispute that IBC transferred assets to HG, Inc. after IBC filed for bankruptcy in 1991. (Horton Dep. at 10-11, Doc. 261.) 4. Jackson formed HGI in 1993 and entered into the Asset Purchase Agreement of

August 1, 1993 (Exhibit 5D, Asset Purchase Agreement). RNSOF 4: Defendants do not dispute that Defendant Jackson was one person involved with the formation of HGI in 1993; however, it was Mannie Jackson and Associates and HGI that purchased the Globetrotters in 1993. (Nikolas Dep. at 11, 19-20 & Ex.1, Doc. 261.) 5. The Asset Purchase Agreement includes a schedule of "Player and Personnel

Contracts" (Schedule 2.1(i), to Exhibit 5D: Bates Stamp #1386), and a schedule of trademarks and "Intellectual Property Rights" (Schedule 2.1F to Exhibit 5D, Bates Stamp #1368). Neither of these schedules or the Agreement list Plaintiffs' names or contracts, but specifically identify other players' contracts (i.e. Lou Dunbar #7b of Schedule 2.1(i)). RNSOF 5: Undisputed. Defendants note that player contracts and other intangible assets are mentioned elsewhere in the Asset Purchase Agreement. (Nikolas Dep. at 11 and Ex. 1 at 1323, 1325, 1374, 1377, 1387, Doc. 261; Horton Dep. at 56-57, Doc 261.) To HGI' s knowledge, the player contracts specifically mentioned on Schedule 2.1(i) were only contracts of active players in 1993. (Jackson Aff. ¶ 4, Doc 261.) 6. Plaintiffs never entered into any agreement with HGI at all orally or in writing, nor

were Plaintiffs contacted for their authority. (Exhibit 1A, Jackson Tr. 204; Exhibit 1D, Vaughn Tr. 62, stating "I' certain that they were not asked"; Exhibit 1K, Neal Tr. 168; Ex. 1Q, Haynes m Tr. 57; Ex. 1S, Hall Tr. 61; and Ex. 1L, Rivers Tr. 49).

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RNSOF 6: The HGI Defendants do not dispute that Plaintiffs have not signed player contracts with Harlem Globetrotters International, Inc., but dispute any implication that HGI does not possess, or did not acquire, the rights to use Plaintiffs' names and likenesses. (E.g., Horton Dep. at 54, 57, Doc. 261 (confirming NatWest' intent to sell s HGI all the assets of HG.)) The HGI Defendants do not know what Plaintiffs refer to when they state "nor were Plaintiffs contacted for their authority". 7. The parties to the FUBU Licensing Agreement and their attorneys testified that

Plaintiffs' names and contracts were never brought up during the negotiations and execution of the Agreement (Ex. 1I, Horton Tr. 29, 30). RNSOF 7: If Plaintiffs intend to refer to the 1993 Asset Purchase Agreement, as suggested by the citation to Horton' deposition, undisputed. s 10. Much of the Harlem Globetrotters apparel sold by FUBU had hang tags listing the

specific player' names, including Plaintiffs' which were used as marketing tools. (Ex. 12). s , RNSOF 10: Exhibit 12 lacks foundation. Further, the Neal Plaintiffs lack evidence as to whether and how much of the merchandise attached tags bearing Plaintiffs' information. Mr. Weisfeld testified that "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 SJ Ex F, Doc 206.) 11. FUBU representatives never conducted any due diligence as to Plaintiffs' rights,

and relied solely on the representations of Jackson. (Ex. 1A, Jackson Tr. 261, and Ex. 1F, Weisfeld Tr. 68, stating contracts were "boxed up" and "not accessible" "due to the bankruptcy.") RNSOF 11: Whether due diligence was required is a legal conclusion. HGI Defendants do not dispute that FUBU representatives relied to Mr. Jackson' representations that s HGI had the right to use Plaintiffs' names and likenesses for promotional and commercial purposes, including the License Agreement.

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14.

A sample player contract was not attached to the contract between FUBU and

HGI, and FUBU never expressed any concern as to its enforceability as to Plaintiffs. (Exhibit 1C, Lenihan, Tr. 20-21). (Plaintiffs previously stated that "a sample" was attached which was erroneous). RNSOF 14: Defendants do not dispute that a sample player contract was provided to GTFM during negotiations for the License Agreement. (Lenihan Dep. at 20, Doc 201.) 21. "Some" of the FUBU/HGI apparel contained Plaintiffs' trademarks (FUBU

Motion, p.5, L.4) Weisfeld Decl. Paragraph 5). RNSOF 21: Whether Plaintiffs possess trademarks is a legal conclusion. None of the plaintiffs have registered their names, likenesses, or numbers with the U.S. Patent & Trademark Office. (Abalos Dep. at 44, Doc 201.) HGI Defendants do not dispute that a small percentage of the Apparel contained Plaintiffs' names and/or likenesses. (Weisfeld Dep. at 54, Doc 201.) 22. Approximately 45,000 units of garments bearing Plaintiffs' names were reported

by HGI for a limited period ending November 2003 (Exhibit "9 (A)", report of FUBU sales), (FUBU states the number is "insignificant" at fn. 1, p. 5 FUBU Motion). Plaintiffs have recently confirmed that overseas sales have occurred that FUBU did not report. (Exhibit 1O, Phipps Tr. 58, 59; and Exhibit 1P, Gallo Tr. 1-19). RNSOF 22: HGI objects to the parenthetical as unsupported by the record citation, but immaterial in any case. GTFM' motion actually stated that "[a]n insignificant number s of styles containing plaintiffs' likenesses and/or images ­ as opposed to plaintiffs' names and/or alleged jersey numbers ­ were manufactured and/or sold. Plaintiffs' expert was unable to identify any such styles and only identified styles that used the plaintiffs'names and/or alleged jersey numbers." (GTFM SJ Mot., Doc 184, at 5 n.1 (emphasis added).) Plaintiffs' allegation that "overseas sales have occurred that FUBU did not report" is additionally unsupported by the record citation and relies on hearsay.

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One of Plaintiffs' investigators conceded that the alleged FUBU/HGI apparel that he found overseas did not have the names and/or likenesses of any of the plaintiffs and the other investigator conceded that he had no direct knowledge of any alleged apparel overseas; thus, his testimony is inadmissible hearsay. (Gallo Dep. at 28-29, 31-32; Phipps Dep. at 58-59, 120-21). These allegations are immaterial. 25. Jackson testified that he stated that the FUBU deal was a "100 million dollar" deal

in an ESPN interview and that the reference in the book "Spinning the Globe" to $60 million in sales was accurate (Exhibit 1A, Jackson Tr. 121; and Exhibit 7). RNSOF 25: Mr. Jackson was not referring to the License Agreement with the phrase "100 million dollar deal." The record citation indicates that Mr. Jackson' testimony was s that Harlem Globetrotters International, Inc. is a "100 million dollar business." 26. Plaintiffs were never paid a dime under the License Agreement before Plaintiffs

sent a demand letter on September 29, 2003 (Exhibit 11). Then, Plaintiffs received a check for 8% of HGI' 8% royalty while being told, "you are not entitled to any money." (Exhibit 9A, s Jackson letter to Plaintiffs). The FUBU licensing agreement was actually for 10% of the first $10 million (Exhibit 9D, Article II). RNSOF 26: HGI Defendants did not send money to Plaintiffs in response to their demand letter. (Jackson Dep. at 139-41, Lemon SJ Ex. L, Doc 206.) 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.) Thus, HGI' actions in this matter were not s unprecedented. Plaintiffs were offered 8% of the Globetrotters' royalty for sales of Apparel containing their information, not 8% of HGI' total royalty. (Lenihan Dep. at s 32, Doc 201.) The Globetrotters' royalty was 10% on the first $10 million, then 8% thereafter. (Syracuse Aff. ¶ 10, Ex. 1 at GTFM 152-53, Doc 208.)

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27.

Jackson wrote to the former players (including Plaintiffs) on September 4, 2003

that the total would be "approximately $30,000.00" (Exhibit 9C). RNSOF 27: This statement is incomplete. Mr. Jackson wrote to the players on September 4, 2003, to announce that HGI expected to give "approximately $30,000.00" of revenues earned from the License Agreement to Globetrotters charities and for emergency expenses for former players. 28. Revenues from sales of FUBU merchandise bearing Plaintiffs' names went to

Harlem Globetrotters International Foundation, Inc. (Exhibits 9A and B). RNSOF 29: Defendants do not dispute that some royalties earned from sales of FUBU merchandise were paid to Defendant Harlem Globetrotters International, Inc. and that HGI in turn paid some of its royalties to HGIF. (Syracuse Aff., Exs. I, K, Doc. 208.) 29. Jackson stated that the Foundation helped former players experiencing hardships

but could not name a single former player that he had helped (Exhibit 1A, Jackson Tr. 198, 199). RNSOF 30: Mr. Jackson testified that approximately half a dozen former players had received a benefit from the Foundation but could not recall names. (Jackson Dep. at 199, Lemon SJ Ex. L, Doc 206.) 32. Vaughn has been employed by Jackson since 2000 (Exhibit 1D, Vaughn Tr. 5).

RNSOF 32: Mr. Vaughn has been employed by HGI, not Jackson, since 2000. (Vaughn Dep. at 5, Doc. 261.) 33. Plaintiffs never agreed to allow their names to be used to raise money for

Jackson' Foundation (Exhibit 1L, Haynes Tr. 98, 107-108) and don' know what it does. (Ex. s t 1T, Sanders Tr. 128). RNSOF 33: This statement is unsupported by deposition, affidavit, or any other information in the record as required by Fed. R. Civ. P. 56 and LRCiv 56(1)(a) for Plaintiffs Neal, Rivers, Thornton, Hall, and Sanders. If "Jackson' foundation" is s intended to refer to Harlem Globetrotters International Foundation, Inc., HGI does not

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dispute that it paid some of the royalties it received from the License Agreement to HGIF. (Syracuse Aff., Ex. K, Doc 208.) 34. "Curly" Neal' last player contract terminated 1989, and was with IBC, owned by s

IBC and governed by the laws of Delaware (Exhibit 3A, page 1, 2, and ¶ 7). RNSOF 34: Curly Neal had a contract with IBC that terminated in 1989 and was governed by the laws of Delaware, but it was a public relations contract, not a player contract. Consequently, it is immaterial. Curly Neal' last player contract terminated in s 1983. (Neal Dep. at 42, Ex. 54, Doc 199.) 35. Marques Haynes' last player contract terminated 1980, and was with Harlem

Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois. (Exhibit 3B, p. 1, p. 1, and ¶ 20). RNSOF 35: HGI Defendants do not dispute that Haynes' last Globetrotters' player contract, with Harlem Globetrotters, Inc., terminated in 1980 and stated that it was governed by the laws of Illinois. (Haynes Dep. at 22-23, Ex. 22, Doc 196.) 36. Showboat Hall' last player contract terminated 1974, and was with Harlem s

Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois. (Ex. 1S, Hall Tr. 28; Exhibit 3C, ¶2, p. 1, and ¶1b). Hall never had an attorney for contract negotiations in 27 years. (Ex. 1S, Hall Tr. 16) and never read the contracts. (Id. at 18.25). RNSOF 36: HGI Defendants do not dispute that Hall' last Globetrotters player contract, s with Harlem Globetrotters, Inc., terminated in 1974 and states it was governed by the laws of Illinois. (Hall Dep. at 28-29, Ex. 16, Doc 198.) The statement Hall never retained an attorney in his relationship with the Globetrotters, is false and immaterial. The citation to page 16 of Plaintiff Hall' deposition indicates he hired an attorney on a s severance pay issue.

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37.

"Big D" Dallas Thornton' last player contract terminated in 1982, and was with s

Harlem Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California. (Exhibit 3D ¶2, p. 1, and ¶1b). RNSOF 37: HGI Defendants do not dispute that Plaintiff Thornton' last Globetrotters s player contract, with Harlem Globetrotters, Inc., terminated in 1982, and states it was governed by the laws of California. (Thornton Dep. at 27, Ex. 8, Doc. 201.) 38. "Gator" River' last player contract terminated 1985, and was with Harlem s

Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California. (Exhibit 3F, ¶2, p. 1, and ¶1b). RNSOF 38: HGI Defendants do not dispute that Plaintiff River' last Globetrotters s player contract, with Harlem Globetrotters, Inc. terminated in 1985 and was governed by the laws of California. (Rivers Dep. at 46, Ex. 12, Doc. 201.) 39. "Twiggy" Sanders last player contract terminated 1992, and was with Harlem

Globetrotters, Inc., owned by IBC and governed by the laws of Minnesota. (Exhibit 3E, ¶2, p. 1, and ¶17). Sanders never had an attorney for contract negotiations and was lied to that all contracts were the same. (Ex. 1T, Sanders Tr. 119-120). RNSOF 39: HGI Defendants do not dispute that Plaintiff Sanders' last player contract terminated in 1992, was with HG, Inc. and states it was governed by the laws of Minnesota. (Sanders Dep. at 53, Ex. 23, Doc. 198.). The statement "Sanders never had an attorney for contract negotiations" is unsupported by the record but immaterial. Plaintiff Sanders testified that while attorneys were not in the room during his negotiations with Globetrotters management, he was assisted by attorneys who directly corresponded with Globetrotters management. Plaintiff Sanders also said he would leave the room to call his attorneys during negotiations with Globetrotters management. (Sanders Dep. at 36-37 & Ex. 6, 45-46, 132-34.) HGI Defendants further dispute the allegation that Plaintiff Sanders was "lied to" as unsupported by the record citation, but

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immaterial. Plaintiff Sanders actually testified: "[Mr. Greeson] told me every Harlem Globetrotter had the same contract and had that same clause in it. Basically, other than salary, they were identical, and that' what I believed until this lawsuit." (Id. at 119-20.) s 40. Since the inception of Plaintiffs' relationships with various "Harlem

Globetrotters" entities, Plaintiffs have received various payments for endorsements, merchandise, appearances and cartoon appearances while employed under the player contracts. (Exhibit 1L, Rivers Tr. 102-- saying "that' always been the position we' been under"), (Ex. s ve 1K, Neal Tr. 168; Ex. 45; and Ex. 1S, Hall Tr. 47). RNSOF 40: This statement is unsupported by deposition, affidavit, or any other information in the record as required by Fed. R. Civ. P. 56 and LRCiv 56(1)(a) for Plaintiffs Haynes, Thornton, Lemon, and Sanders, and misrepresents the testimony given by Plaintiffs Rivers, Neal, and Hall. Plaintiff Rivers' testimony was limited to a proposed contract that was never executed and that is therefore immaterial. (Rivers Dep. at 48, 101-102 & Ex. 14.) The record citation that Plaintiffs offer for Mr. Neal' s testimony does not discuss payments for endorsements, merchandise appearances, and cartoon appearances. Exhibit 45 is hearsay and lacks foundation. Finally, the citation provided for Plaintiff Hall only states that he was paid for appearing on the television program, "The Popcorn Machine," but that he does not know what the source of the money was. Whether Plaintiffs occasionally received additional compensation for appearances while they were players is immaterial to HGI' current legal right to use s Plaintiffs' names and likenesses. 41. Aside from the FUBU clothing line and some bobble head dolls, HGI has not

licensed or utilized the Plaintiffs' names and likenesses. (Exhibit 1A, Jackson Tr. 249-250). RNSOF 41: This statement is unsupported by the record citation. Mr. Jackson additionally testified that Plaintiffs' names were used in programs (Jackson Dep. at 256, Lemon SJ Ex L, Doc 206), one of the top-selling items of merchandise sold at arenas

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where the Globetrotters play (Syracuse Aff. ¶ 7 & Ex. C-H, Doc 208), and Plaintiffs' names are used in other merchandising and promotional contexts (e.g., Syracuse Aff. ¶¶ 17-19, Doc 208), as Plaintiffs are generally aware (DSOF ¶¶ 39, 40, 42, Doc 196 (citing Haynes Dep. at 68, Doc 196; Rivers Dep. at 69-70, Doc 201; Thornton Dep. at 135-36, Doc 201; Hall Dep. at 48-49, Doc 198; Sanders Dep. at 86-87, Doc 198; Hall Dep. at 4849.). Historically, the Globetrotters have used Plaintiffs' names and likenesses for a variety of merchandise and promotion activities. (DSOF ¶¶ 24-31, Doc 196 (citing extensive evidence in the record)). 42. Not even the clothing sold in the arenas at Harlem Globetrotters events contains

Plaintiffs' name and likeness. (Exhibit 1A, Jackson Tr. 259). Jackson called the items sold at arenas "trash". (Ex. 1A, Jackson Tr. 258). RNSOF 42: Mr. Jackson testified that the FUBU Apparel was not sold at Harlem Globetrotter events, although other apparel is. (Jackson Dep. at 258-59.) Plaintiffs also misrepresent the "trash" comment, as indicated by the record citation. In responding to a question about the company that previously handled arena sales for the Globetrotters, Mr. Jackson stated, "[a]nd so you' clear on it, it' all the merchandise, trinkets and trash, re s that' sold inside the arena." (Id. at 259.) s 43. Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line

bearing Plaintiffs' names (Exhibit 1O, Phipps Tr. 19, 58, 59, 76, and 83; and Exhibit 1P, Gallo Tr. 1-19). RNSOF 43: Retailers may still be selling merchandise purchased from GTFM prior to the termination of the License Agreement and during the "sell-off" period. (Blenden Dep. at 46, Lemon SJ Ex G, Doc 206.) Whether retail sales are still occurring is immaterial, however, since GTFM, and therefore HGI, are not earning any further revenues from these sales. (Weisfeld Dec. ¶ 7, Doc. 183.)

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44.

Haynes contract states that it may not be assigned without his prior written consent

(¶ 18) and that the employer rights to use his name may be used for promotion, but only "with respect to commitments made by HGI prior to such termination" and for "the same uses they were put to prior to such termination." (Exhibit 3B ¶15(a); and Exhibit 1Q, Haynes Tr. 102). RNSOF 44: Haynes' last player contract, dated 1975, does not state that the "with respect to commitments made by HGI prior to such termination" is conjunctive with "the same uses they were put to prior to such termination." The entire excerpt, which speaks for itself, reads: Marques further agrees that each such interview, appearance and picture and/or his name and/or facsimile of his signature and/or his likeness may be used by HGI in any manner it may desire for the advertising and promotion of any of HGI' s athletic teams or other activities or the advertising and promotion of the sale of any commercial products or services by HGI or by any other person, firm or corporation which may be licensed or otherwise authorized by HGI to so use such interview, appearance, picture, Marques' name, facsimile of his signature or likeness. The authorization granted in this paragraph by Marques shall not terminate upon the termination of this Agreement or Marques' employment hereunder no matter what the reason, but shall continue in full force and effect thereafter with respect to commitments made by HGI prior to such termination, with respect to interviews and appearances made and pictures taken prior to such termination and with respect to his name, facsimile of his signature and likeness to the extent they are put to the same uses as they were put prior to such termination. (Haynes Dep. at 22-23, Ex. 22 ¶ 15(a), Doc 196.) Plaintiffs' recitation of ¶ 18 is also incomplete. The entire section, which speaks for itself, states: "HGI shall have the right to sell, assign and transfer this Agreement or to loan Marques' services to any basketball team operating under the name Harlem Globetrotters owned and operated by HGI or any successor to the business of HGI. This Agreement may not be sold, assigned or transferred nor may Marques' services be loaned, except as provided in this paragraph 18, without the prior written consent of Marques." (Haynes Dep. Ex. 22 ¶ 18, Doc 196) (emphasis added)).

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45.

Neal' contract states that rights granted to "HG" are only for the term of the s

contract (¶9) and that Neal will receive 75% of "non-Globetrotter" services. (Exhibit 3A, ¶11). RNSOF 45: If Plaintiffs intend to refer to Neal' public relations contract dated s September 20, 1988, Plaintiffs mischaracterize the contract language, which speaks for itself. Paragraph 9 does not limit HG' use of rights to the term of the contract. Further, s Neal would receive 75% only for "non-Globetrotter advertisements." 46. The publicity provisions in player contracts are coupled with obligations to appear,

interview, etc. ­ obligations that terminated when the contracts terminated. (Exhibit 3E, Sanders Contract ¶12; and Exhibit 3F, Rivers Contract ¶12a). RNSOF 46: This statement is unsupported for Plaintiffs Haynes, Hall, Neal, and Thornton. The obligations of Plaintiffs Rivers and Sanders to participate in "live and recorded radio and television programs and commercial announcements, interviews and personal appearances, etc." terminate at the end of the terms of the contracts cited. (Rivers Dep. Ex. 12, Doc 201; Sanders Dep. Ex. 9, Doc 198). 47. Rivers consistently received payments for merchandise (i.e. Converse shoes)

endorsements and appearances, including $30,000 for same in Rivers last year (1985) because "that has always been the position that we' been under." (Exhibit 12, Rivers Tr. 101-102; and ve Exhibit 10, Rivers Letters). Other Plaintiffs were paid for merchandise in addition to salaries in player contracts. (Exhibit 1K, Neal Tr. 175). RNSOF 47: This statement is unsupported for Plaintiffs Haynes, Hall, Thornton and Sanders. For Plaintiffs Rivers and Neal the statement is a misrepresentation of their testimony. When asked about an unexecuted contract extension that would have provided compensation for endorsements, merchandise appearances, and television revenues, Plaintiff Rivers testified that such contract extension was never executed and was not his contract. (Rivers Dep. at 46-48 & Ex 14.) Mr. Neal only testified about reruns or repeat telecasts of Wide World of Sports, for which he was not paid, and

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appearances for Converse, for which he was paid. Mr. Neal could not identify the source of the money or the terms or conditions under which he received the money. (Neal Dep. at 175-76, Doc 261.) Whether Plaintiffs occasionally received additional compensation for appearances while they were players is immaterial to HGI' current legal right to use s Plaintiffs' names and likenesses. 48. Current HGI employee coach Lou Dunbar testified that if there were additional

sales of FUBU clothes bearing his name he believes he should be paid by HGI. (Exhibit 1M, Dunbar Tr. 96). Dunbar was also on the UBPA negotiating committee that secured additional merchandising rights supplemental to individual contracts (Exhibit 1A, p.37-41), and there is no evidence that formal action was ever taken to disband the UBPA. (Id., at p. 45). RNSOF 48: Plaintiffs' Exhibit 1A does not discuss Mr. Dunbar or the UBPA. HGI Defendants do not dispute the content of Mr. Dunbar' testimony, but it is immaterial. s When Plaintiffs filed this suit in February 2004, GTFM ceased sending HGI royalty payments, and as a consequence, HGI ceased sending checks to players whose names and information was used on the Apparel. (Syracuse Aff. ¶ 15, Doc 208.) Dunbar may have been on the UBPS negotiating committee, but the "secured additional merchandising rights supplemental to individual contracts" language is not supported by the record citation. As to whether actions were taken to disband the union, Mr. Dunbar merely testified that he did not recall receiving a letter indicating the union was disbanded, and that he did not personally undertake action to disband the union. By contrast, at the time of the bankruptcy and MJA and HGI' purchase of the Globetrotters in 1993, there was s no evidence that a union was in existence. (Nikolas Dep. at 32, Horton Dep. at 52, Jackson Aff., 11/22/05, ¶ 3, Doc 261.) One of the documents cited in the purchase agreement was "union decertification." (Nikolas Dep. at 11 & Ex. 1 at 1377, Doc 261.) Since the union no longer exists, any disputes about the union and past agreements are immaterial.

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51.

Plaintiffs conceded that the use of their pictures was allowed by verbal agreement,

player contracts and the Collective Bargaining Agreement, but that treatment of merchandise endorsement was different. (Exhibit 32, Rivers Affidavit at 21; Exhibit 33, Thornton Affidavit at 15). (Exhibit 1K, Neal Tr. 128). RNSOF 51: The statement "treatment of merchandise endorsement was different" is totally unsupported for Plaintiffs Haynes, Hall, and Sanders. The statement is unsupported by the record citation for Plaintiff Neal, whose testimony indicates his name and likeness were used in advertisements for companies like Boeing while he was a player, and says nothing about merchandise endorsement being different. Plaintiffs Rivers' and Thornton' affidavits state, "I was always asked for approval for s endorsements during the time I was a player and I got paid extra." Yet Plaintiff Thornton testified in his deposition that he did not do any individual endorsements while he was a Globetrotter. (Thornton Dep. at 106-07.) Plaintiff Rivers testified that he only did one, for Kodak. (Rivers Dep. at 18.) Neither Plaintiff establishes a pattern of how the Globetrotters treated player merchandise endorsements. Indeed, to the extent Plaintiffs' affidavits contradict their deposition testimony, they are insufficient to 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 a fact by an affidavit contradicting his prior deposition testimony' (quoting Kennedy v. .") Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The Globetrotters' prior practices of paying players extra compensation while they were players are immaterial to HGI' current legal right to use Plaintiffs' names and s likenesses, as set forth in the player contracts and elsewhere. 52. Plaintiffs have located, verified, and scheduled infringing garments after a limited

investigation. There are numerous exhibits. (Exhibit 13, Phipps Affidavit, and the Schedule of Merchandise-A).
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RNSOF 52: Plaintiffs hired investigators to purchase HGI/FUBU apparel. It is unclear whether at least some merchandise was counterfeit. (E.g., Phipps Dep. at 134.) Whether the merchandise was "infringing garments" is a legal conclusion. As Plaintiffs' Schedule A shows, some of the merchandise did not even bear Plaintiffs' names or likenesses. 53. FUBU designed, manufactured and sold garish dresses bearing Plaintiffs' names

and numbers. "Rivers" and "11" are on a horrid dress (Exhibit 13A, Phipps Affidavit #55), and "Twiggy" and "42" appear on a long yellowish dress, (Exhibit 13A, Phipps Affidavit #79). RNSOF 53: Immaterial. 54. FUBU designed, manufactured and used two hangtags entitled "Legends of the

Hardwood" to market Globetrotters clothing. (Exhibit 12). Some FUBU CAD' (Computer S Assisted Drawings) clearly show hangtags. (Exhibit 24). FUBU' Weisfeld stated, "All Harlem S Globetrotters garments would have some tag". (Exhibit 1F, Weisfeld Tr.60). RNSOF 54: Exhibit 12 lacks foundation. HGI Defendants do not dispute that some CADs showed hangtags, but Plaintiffs have no evidence as to whether and to what extent hangtags with Plaintiffs' names were used. Mr. Weisfeld testified "I don' know when or t actually if [the hangtags] were used" and that while all of the Apparel would have tags, it was "not necessarily these tags." (Weisfeld Dep. at 57, 60, Lemon SJ Ex F, Doc 206.) 55. These hangtags bear Plaintiffs' names and were attached to garments bearing

Plaintiffs' names, numbers and likenesses. (Exhibit "13", Phipps Affidavit). RNSOF 55: See ¶ 54 above. 56. "Legends of the Hardwood" hangtags were also attached to FUBU garments not

otherwise bearing Plaintiffs' names or any other players' names, numbers or likenesses. (Exhibit 13 (A), Phipps Affidavit). RNSOF 56: See ¶ 54 above.

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57.

"Legends of the Hardwood" hangtags were attached to FUBU garments bearing

"Legends" player names other than Plaintiffs. (Exhibit 13, Phipps Affidavit, Ex. A39: Hangtag on "Goose" Tatum shorts, Ex. A14: Hangtags on "Geese" Ausbie "35" jersey). RNSOF 57: See ¶ 54 above. 58. Plaintiffs have personal knowledge that consumers are actually confused about

Plaintiffs being associated with or endorsing HGI/FUBU products. (Exhibit 33, Thornton Affidavit at ¶¶10-13) (Exhibit 32, Rivers Affidavit at ¶¶10-14; Ex. 1S, Hall Tr. 62, 65). RNSOF 58: This statement is totally unsupported for Plaintiffs Neal, Sanders, and Haynes. The cited paragraphs of Plaintiff Thornton' and Rivers' affidavits, which s purport to be summaries of statements unidentified persons made to Plaintiffs, are inadmissible hearsay. Plaintiff Thornton' affidavit also contradicts his deposition s testimony: Q: If the consumer is looking for a particular jersey, were they confused when they saw your name associated with the product? A: I would not know. (Thornton Dep. at 81.) Plaintiff' affidavit cannot create a genuine issue of disputed fact s when it contradicts previously given deposition testimony. Hambleton Bros. Lumber Co. v. Balkin Enters., 297 F.3d at 1225 (9th Cir. 2005). The testimony of Plaintiff Hall is that his niece and nephew bought Globetrotters/FUBU apparel with his name on it, not that they were confused. All Plaintiffs have previously testified that they have no

19

documentary evidence that the Apparel has confused consumers. (E.g., DSOF ¶ 95, Doc
20

196 (citations omitted).)
21

59.
22 23 24 25 26

Plaintiffs have never signed any agreements with HGI. (PSOF ¶ 62). Haynes'

player contract was not assignable. (Exhibit 1Q, Haynes Tr. 102). There were no rights in HG (or HGI) after contracts expired. (Exhibit 1Q, Haynes Tr. 57) (Ex. 1K, Neal Tr. 157). Nothing signed ever with HGI by Sanders (Exhibit 3E(1)(2), and Ex. 1T at 127).

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RNSOF 59: HGI Defendants do not dispute Plaintiffs have not signed agreements with Harlem Globetrotters International, Inc. Whether the "Haynes' contract was not assignable" and "[t]here were no rights in HG (or HGI) after contracts expired" is a legal conclusion. 60. Plaintiffs never received any calls for Mannie Jackson about the FUBU deal.

(Exhibit 1(Q), Haynes Tr.96). (Exhibit 1K, Neal Tr. 13). (Ex. 1T Sanders Tr. 126). RNSOF 60: This statement is unsupported for Plaintiffs Hall, Thornton, and Rivers, and unsupported by the record citation for Neal . HGI Defendants do not dispute that Plaintiffs Haynes and Sanders never received any calls for (or from) Mannie Jackson about the FUBU deal. 61. Plaintiffs have never authorized Mannie Jackson, Harlem Globetrotters

International, Inc., Harlem Globetrotters International Foundation, Inc. ("HGI") to license their names, numbers or likenesses to GTFM, LLC, FUBU the Collection, LLC, GTFM of Orlando, LLC or any related company ("FUBU"), verbally or in writing. (Exhibit 32, Rivers Affidavit ¶4; Exhibit 33, Thornton Affidavit ¶4; Exhibit 34, Sanders Affidavit ¶4; Exhibit 35, Neal Affidavit ¶4; Exhibit 36, Hall Affidavit ¶4; Exhibit 37, Haynes Affidavit ¶4; and Exhibit 1K, Neal Tr. 157). RNSOF 61: This statement is a legal conclusion: whether HGI had authority to use, license, and sublicense the Plaintiffs' information is the central dispute in this suit. Whether Plaintiffs authorized HGIF to license their information is immaterial because HGIF did not license Plaintiffs' names and likenesses to GTFM or any related company. HGI was the only HGI-related party to the License Agreement. (Syracuse Aff., Ex I, Doc 208.) 66. Plaintiffs were always asked for approval for endorsements during the time they

were players and were paid extra. (Exhibit 32, Rivers Affidavit ¶21; Exhibit 33, Thornton

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Affidavit ¶15; Exhibit 34, Sanders Affidavit ¶15; Exhibit 35, Neal Affidavit ¶15; Exhibit 36, Hall Affidavit ¶15; Exhibit 37, Haynes Affidavit ¶14). RNSOF 66: It is unclear what Plaintiffs mean by "endorsements," i.e. whether Plaintiffs refer to individual endorsements or team endorsements and mean to include appearances. (See, e.g., Hall Aff ¶ 15, which states that "I got paid extra for at least ` The Popcorn Machine.' Some Plaintiffs' affidavits, which almost uniformly state, "I was always ") asked for approval for endorsements during the time I was a player and I got paid extra"-- are contradicted by their deposition testimony. Plaintiff Thornton testified in his deposition that he did not do any individual endorsements while he was a Globetrotter. (Thornton Dep. at 106-07.) Plaintiff Rivers testified that he only did one, for Kodak. (Rivers Dep. at 18.) Plaintiff Neal stated he could not recall getting extra compensation for appearing in ads for Wilson basketballs or Boeing (Neal Dep. at 77-79), and stated affirmatively that he was not compensated for his caricature appearing on a Thermos and in a comic book (id. at 85-86). Because Plaintiffs' affidavits contradict their deposition testimony, they are insufficient to create a genuine issue of disputed fact. Hambleton Bros. Lumber Co., 297 F.3d at 1225. The undisputed evidence shows that Plaintiffs' additional payments for appearances or commercial purposes, if any, was 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 8485) or 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-

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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 World of Sports." (E.g., Thornton Dep. at 91-92 & Ex. 11 s 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, 172-73, 176; Haynes Dep. at 61-62; Rivers Dep. at 30; Thornton Dep. at 46, 96, 102; Sanders Dep. at 43-44.) 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 s player contracts and elsewhere. 68. The players union made a deal with the Harlem Globetrotters for better conditions,

pensions and guaranteed minimum royalties of 25% if Plaintiffs names and likenesses were used while Plaintiffs were players in several Collective Bargaining Agreements. (Exhibit 32, Rivers Affidavit ¶26; Exhibit 33, Thornton Affidavit ¶20; Exhibit 34, Sanders Affidavit ¶20; Exhibit 35, Neal Affidavit ¶20; Exhibit 36, Hall Affidavit ¶19; Exhibit 37, Haynes Affidavit ¶18). RNSOF 68: The HGI Defendants do not dispute the existence of a player union in approximately the late 1970s to the mid-1980s, although the only CBA that has been authenticated in this case is the 1983 CBA. (Thornton Dep. at 86-87 & Ex. 11, Doc 261.) As the undisputed evidence shows, the collective bargaining agreements were "additional benefits" that did not limit the rights to either side of the individual contract. (Thornton Dep. at 38, Doc. 261). In fact, the 1983 collective bargaining agreement contains an attachment-- omitted from the Plaintiffs' copy at Exhibit 2B-- that specifically incorporates paragraph 12(a), the publicity and licensing paragraph of the standard player contract signed by all Plaintiffs into the collective bargaining agreement. (Thornton Dep. at 86-87, 91, Ex. 11 at 1126, 1163; Ex. 8 ¶ 12(a), Doc. 261; Neal Dep. at 42, Ex 37 ¶

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12(a), Doc 199; Sanders Dep. at 40-41, Ex. 8 ¶ 12(a), Doc 198; Rivers Dep. at 42, Ex. 11 ¶ 12(a), Doc 201.) The HGI Defendants do not dispute that the CBA provided for merchandising payments for active players in certain circumstances set forth in the CBA. (Thornton Dep. at 38, Ex. 11 at 1148-49, Doc. 261.) Any disputes regarding the CBA in this case are immaterial because the undisputed evidence shows the union no longer exists and the CBA is not in effect (see ¶ 2, supra), and because the CBA incorporated the publicity provision of the individual player contracts anyway. 69. The presidents of the Harlem Globetrotters at the time they signed the Collective

Bargaining Agreements (CBA)-- were either Stan Greeson and Art Harvey. (Exhibit 32, Rivers Affidavit ¶27; Exhibit 33, Thornton Affidavit ¶21; Exhibit 34, Sanders Affidavit ¶21; Exhibit 35, Neal Affidavit ¶21; Exhibit 37, Haynes Affidavit 19). RNSOF 69: The only authenticated CBA in this case is the 1983 agreement signed by Art Harvey. (Thornton Dep. at 86-87 & Ex. 11 at 1151, Doc 261.) This CBA is immaterial. 70. Plaintiffs' names and numbers used by FUBU were identical to Plaintiffs' real

names and the names and numbers used for many years as Harlem Globetrotters. (Exhibit 32, Rivers Affidavit ¶28; Exhibit 33, Thornton Affidavit ¶22; Exhibit 34, Sanders Affidavit ¶22; Exhibit 35, Neal Affidavit ¶22; Exhibit 36, Hall Affidavit ¶20; Exhibit 37, Haynes Affidavit ¶20). RNSOF 70: By Plaintiffs' own admission, the Apparel generally only showed Plaintiffs' nicknames, not full names. (Pls' Ex. 25.) For Plaintiffs Neal and Haynes the undisputed evidence shows they had multiple numbers as players, and the Apparel only used one of these numbers. (Id.; Rivers Dep. at 70, Doc 201; Haynes Dep. at 29, Doc 196.) 71. The Harlem Globetrotters never used Plaintiffs' names, numbers or likenesses on a

line of clothing until HGI and FUBU in 2002. (Exhibit 32, Rivers Affidavit ¶29; Exhibit 33,
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Thornton Affidavit ¶23; Exhibit 34, Sanders Affidavit ¶23; Exhibit 35, Neal Affidavit ¶23; Exhibit 36, Hall Affidavit ¶21; Exhibit 37, Haynes Affidavit ¶21). RNSOF 71: Plaintiffs' names, plus the numbers they wore as players, appeared on their jerseys or uniforms as players. (E.g., Haynes Dep. at 82-83, Doc 196; Rivers Dep. at 70, Doc 201; Sanders Dep. at 82, Doc 198.) NASOF ¶ 71 is immaterial because the undisputed evidence shows that the Globetrotters made extensive use of Plaintiffs' names and likenesses during and since their time as players, on everything from cartoons to figurines to posters. DSOF ¶¶ 24-37, Doc 196 (citing voluminous evidence in the record). 73. Plaintiffs believe that their names and numbers on FUBU clothing is an

endorsement that they should have approved and been paid for under their contracts and the CBA. (Exhibit 32, Rivers Affidavit ¶32; Exhibit 33, Thornton Affidavit ¶26; Exhibit 34, Sanders Affidavit ¶26; Exhibit 35, Neal Affidavit ¶26; Exhibit 36, Hall Affidavit ¶23; Exhibit 37, Haynes Affidavit ¶24). RNSOF 73: HGI Defendants do not dispute Plaintiffs' beliefs, but dispute that their beliefs are correct. 74. HGI was obligated to pay Plaintiffs royalties on FUBU sales. Exhibit 32, Rivers

Affidavit ¶33; Exhibit 33, Thornton Affidavit ¶27; Exhibit 34, Sanders Affidavit ¶27; Exhibit 35, Neal Affidavit ¶27; Exhibit 36, Hall Affidavit ¶24; Exhibit 37, Haynes Affidavit ¶25. RNSOF 74: This statement a legal conclusion. 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

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743214.2/43458.007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1743214.2/43458.007 s/ Melody Tolliver

Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 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 filing and s 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

Document 349 Filed 12/19/2005 -30-

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