Free Reply to Response to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

8 MEADOWLARK LEMON, a married man, 9 10 vs. 11 HARLEM GLOBETROTTERS INTERNATIONAL, PLAINTIFFS NEAL, RIVERS, THORNTON, INC., an Arizona corporation; HARLEM HALL, HAYNES AND SANDERS' REPLY TO 12 GLOBETROTTERS INTERNATIONAL DEFENDANTS HARLEM FOUNDATION, INC., an Arizona corporation; GLOBETROTTERS INTERNATIONAL, 13 MANNIE L. JACKSON and CATHERINE INC., HARLEM GLOBETROTTERS JACKSON, husband and wife; FUBU THE INTERNATIONAL FOUNDATION, AND 14 COLLECTION, LLC, a New York limited liability MANNIE L. AND CATHERINE JACKSON'S company doing business in Arizona; GTFM, LLC, a RESPONSE TO NEAL PLAINTIFFFS' 15 New York limited liability company doing business in MOTION FOR SUMMARY JUDGMENT; Arizona; AND PLAINTIFFS' MOTION FOR JUDICIAL 16 NOTICE OF CERTAIN FACTS UNDER Defendants. RULE 201, FEDERAL RULES OF EVIDENCE 17 18 FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, 19 ROBERT "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS, 20 Plaintiffs, vs. 21 22 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM 23 GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; 24 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 25 COLLECTION, LLC, a New York limited liability 26 company, GTFM of Orlando, LLC; and GTFM, LLC, a New York limited liability company doing business in Arizona, Defendants. Plaintiff,

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1 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 2 Counter-claimant, 3 vs. 4 MEADOWLARK LEMON, a married man, 5 6 7 8 9 10 11 12 13 14 15 "HGI") Response to Plaintiffs' Motion for Summary Judgment (HGI Response Memo, 11/28/05, Doc. 16 17 18 19 20 21 22 23 24 25 26 27 28
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Counter-defendant.

PLAINTIFFS' REPLY TO DEFENDANT HGI'S RESPONSE TO NEAL PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
PLAINTIFFS FRED "CURLY" NEAL; LARRY "GATOR" RIVERS; DALLAS "BIG D" THORNTON; ROBERT "SHOWBOAT" HALL; MARQUES HAYNES; and JAMES "TWIGGY" SANDERS, (hereinafter collectively the "Plaintiffs"), by and through their undersigned attorneys, hereby submit this reply memorandum in response to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. and Catherine Jacksons' (hereinafter collectively

265).

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1 2 3 4 5 6 III. 7 8 9 10 11 A. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDEX OF FACTS: 1. 2. 3. 4. C. CONCLUSION B. IV. V. VI. II. MEMORANDUM OF LAW I.

TABLE OF CONTENTS 1 2

PLAINTIFFS HAVE STATED A CLAIM AGAINST THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC. AND MANNIE & CATHERINE JACKSON PLAINTIFFS' LANHAM ACT CLAIMS HAVE MERIT PLAINTIFFS' RIGHT OF PUBLICITY CLAIM HAS MERIT HGI HAS BEEN UNJUSTLY ENRICHED PLAINTIFFS' FALSE LIGHT INVASION OF PRIVACY CLAIM HAS MERIT PLAINTIFFS' PLAYER CONTRACTS ARE INVALID HGI Did Not Acquire the Player Contracts by Purchase or Assignment The Player Contracts Are Unenforceable as Unconscionable as a Matter of Law The 1993 Bankruptcy Proceedings Extinguished the Contracts or HGI'S Right to Use Plaintiffs' Names and Likenesses.

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PSOF ­ Plaintiffs' Statement of Facts 1-74 and Plaintiffs Response to HGI's SOF 75-120 (Doc. 314) PRASOF ­ Plaintiffs Reply to HGI's Additional Statement of Facts 1-32 (Doc. 311). PRGO ­ Plaintiffs' Reply to HGI's General Objections 1-20, and PRRNSOF ­ Plaintiffs' Reply to HGI's Response to Neal Plaintiffs' Statement of Facts 1-48 (Doc. 310). PSFDSOF ­ Plaintiffs' Reply to FUBU's (GTFM) Objections to Plaintiffs' Statement of Facts 1-43, and Further Statement of Facts (1)-(41) (Doc. 308).

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MEMORANDUM OF LAW
Plaintiffs rely on their Statement of Facts ("PSOF" Doc. 314), on Plaintiffs' Reply to HGI'S Response to Plaintiffs' Statement of Facts ("PRRNSOF" Doc. 310), and upon Plaintiffs' Reply to HGI's Additional Statement of Facts ("PRASF" Doc. 311) in support of their Reply to HGI's Response to Plaintiff's Motion for Summary Judgment, and incorporate herein all assertions, statements of fact and

6 7 8 9 10 11 12 13 14 15 16 are disputed material facts. There are also undisputed material facts which support summary judgment on 17 18 19 20 21 22 23 24 25 26 PSOF ¶¶66,90). 27 28
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evidence submitted to this Court. Additionally, Plaintiffs request that this Court take judicial notice of certain facts and documents pursuant to Fed.Rules Evid.Rule 201, more specifically described herein. On March 26, 1992, the president of the Harlem Globetrotters wrote to "Gator" Rivers a message befitting all Plaintiffs: "It is my distinct pleasure to recognize you...for your years of helping to spread the goodwill of the United States of America to more than 100 countries on every continent. As a member of the Harlem Globetrotters, recognized as America's ambassadors to the world, you brought smiles to millions in all corners of the earth...`thank you' for your contribution in making the Magicians of Basketball an international institution." (Ex. 82) The failure of HGI to continue the tradition of these sentiments, and a refusal to honor a long course of dealing where Plaintiffs were paid for endorsements and appearances, is at the root of this dispute. There

the issues of secondary meaning, likelihood of confusion, and the invalidity of Plaintiffs' contracts. The old contracts which HGI asserts as a defense do not bar or refute Plaintiffs' claims. Even if the contracts could survive the gauntlet of termination, bankruptcy, assignment and unconscionability, they only limit HGI's liability, not eliminate it. The contracts clearly reserve Plaintiffs rights as to endorsements under "standard" ¶12(a). (Ex. 3F, ¶12(a); Ex. 8; PSOF ¶80). HGI's Response never refutes Plaintiffs' assertion that the FUBU deal is an endorsement under "standard" 12(a). (Ex. 3F; Ex. 8). The Collective Bargaining

Agreement ("CBA") (Ex. 2B, Article 14.12) and Neal's contract (Ex. 3) require a 25% royalty. It is undisputed that HGI (Jackson) previously paid a 25% royalty on bobblehead dolls. (HGI RNSOF ¶26;

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The Plaintiffs old contracts were not with HGI, but with unrelated entities. HGI never bought the predecessor entities, only some assets like the "Harlem Globetrotters" name from the entity that bought assets out of bankruptcy. There was no express or implied agreement with HGI to exploit Plaintiffs. (PSOF ¶¶6, 59, 61). HGI does not dispute that there was no contract between Plaintiffs and HGI. (HGI RNSOF ¶6). Nor does HGI dispute that Plaintiffs were never specifically mentioned as "licensed property" in the FUBU Licensing Agreement. (HGI RNSOF ¶8). It is undisputed that HGI never looked at

7 8 9 10 11 12 13 14 15 16 17 PSOF ¶76, Doc. 290)(hereinafter "HGI RNSOF" and "PSOF"). 18 19 20 21 22 23 24 25 26 27 Doc 278, at §V, P.22, and in their Response to HGI Rule 11 Mot., Doc 238. As to the Foundation: "the 28
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Plaintiffs' contracts or legally evaluated their rights--not just once when they entered the FUBU Licensing Agreement in 2002, but even when Mannie Jackson bought the team in 1993 from the entity that emerged from bankruptcy. (HGI RNSOF ¶¶7, 12, 14, 16-18). I. PLAINTIFFS HAVE STATED A CLAIM AGAINST THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC. AND MANNIE & CATHERINE JACKSON Summary judgment is appropriate against HGI, the signatory to the FUBU Licensing Agreement, as well as to HGI's agent, officer and director who personally directed the complained of actions (Mannie Jackson), and the wholly controlled "charity" of Jackson (the Foundation), whose admitted purpose was to be a receptacle for profits derived from the use of Plaintiffs' marks. (HGI RNSOF ¶27, 29, 33, Doc. 266;

Jackson is specifically identified as a tort-feasor in Plaintiffs' Memo (Doc 279)(hereinafter "Memo"), and he is individually alleged to having never obtained authority from Plaintiffs. (Memo P.1, Line 21-27). Jackson profited individually. (PSOF ¶¶76, 95). It is undisputed that Jackson made personal and direct representations to FUBU to induce the licensing agreement. (HGI RNSOF ¶12; Memo P.2, Lines 11-13; PSOF ¶11). FUBU asserts they relied on Jackson's representations. (FFSOF ¶¶14-15, Doc.#263). Jackson was personally shown the apparel (Ex. 1F, Weisfeld Tr. 111), and had a hand in the design and approval (Ex. 1A, Jackson Tr.250-251). HGI had the right to approve the products. (Id. at 166). Plaintiffs have established the Foundation's and Mannie and Catherine Jackson's liability in their Response to HGI SJ Mot.,

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plan there was to bring funds into our Foundation." (Ex. 1A, Jackson Tr. 280).

HGI does not dispute

placing revenue derived from Plaintiffs in the Foundation. (HGI RNSOF ¶¶24, 26-27, 29, 33). Jackson was 100% owner of HGI. (Corporate Filing, Ex. 59). Jackson said he was the "sole owner". (Ex. 1A, Jackson Tr. 125). HGI is a Subchapter S corporation. (Ex. 60). Jackson participated in the negotiation of the licensing agreement with FUBU. (HGI Rule 11 Memo, Doc. 216; Jackson Aff. at ¶9). FUBU relied on Jackson PERSONALLY when deciding to enter the licensing agreement. (Ex. 1F,

7 8 9 10 11 12 13 14 15 16 17 It is undisputed that Plaintiffs have never given any HGI Defendant authority to use their names 18 19 20 21 22 23 24 25 26 27 Cir.1999)(stating at [13] a principal cannot "hide behind the corporation when he is actually a participant in 28
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Weisfeld Tr. 68). Jackson negotiated and had employee Syracuse sign the licensing agreement (Ex. 6) and he personally recommended and approved the designs. (Ex. 1A, Jackson Tr. 250-251). Jackson sent letters to Plaintiffs regarding the diversion of money derived from their marks to the Foundation. (FUBU Sales Report, Ex. 9A; Ex. 48). Jackson's daughter is the only employee of the Foundation and she is paid by the Foundation. (Ex. 1A, Jackson Tr. 201, 203). Jackson himself made the decision to place merchandise revenue from the use of Plaintiffs' names on FUBU clothes and bobbleheads in the Foundation. (Ex. 1A, Jackson Letter to Alumni; Ex. 48; and Ex. 1A, Jackson Tr. 175-176). (HGI RNSOF ¶¶26, 27, Doc. 266). HGI used Plaintiffs to "fund the Harlem Globetrotters International Foundation." (Ex. 63). Mannie Jackson personally negotiated and bought the team in 1993 using MJA. (Ex. 1I, Horton Tr. 19-20).

(PSOF ¶¶33,51,59,61), and Jackson nor his Alumni Director could not name a single former player that the Foundation had helped. (HGI RNSOF ¶¶30-31). On September 21, 2005 (nine days before discovery cutoff), Mannie Jackson merged HGI into a wholly owned recently formed Nevada corporation then sold HGI to Delaware based HGI Holdings, Inc. on September 27, 2005. (Ex. 53). Where a corporation's principal plays an instrumental role in a manufacturer's success from which a claim of unfair competition arises, the principal can be personally liable. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021, at [51][52] (9th Cir. 1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986); Coastal Abstract Service, Inc. v. First American Title Insurance Company, 173 F.3d 725 (9th

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the tort"). "Where common ownership and management exists" vicarious liability may lie, and even more so, if an officer or director actually directs or controls the conduct. Holley v. Crank, 258 F.3d 1127 (9th Cir.2001). HGI cites no law as to why Catherine Jackson is an improper party. She stated in deposition "WE didn't even own the company back then." (Ex. 57, C. Jackson Tr. 30, 35-36)(emphasis added). II. PLAINTIFFS' LANHAM ACT CLAIMS HAVE MERIT

HGI does not dispute that Plaintiffs played from 1947 (Hall) to 1992 (Sanders) and their 7 8 9 10 11 12 13 14 15 16 17 F.3d 925 (9th Cir.2005). 18 19 20 21 22 23 24 25 26 27 while mentioning Haynes, Neal, Sanders and Hall by name. (See Ex. 9C). Plaintiffs' factual evidence of the 28
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employment ended prior to HGI's purchase of the team. (HGI RNSOF ¶¶1,6). known that this Court may take judicial notice of acquired secondary meaning.

Plaintiffs are so well Fed.R.Evid. 201(a).

Plaintiffs' celebrity is not subject to reasonable dispute, and this fact is "generally known within the territorial jurisdiction of the trial court." Plaintiffs' long history of sports celebrity status is simply

irrefutable. (PSOF ¶114; Ex. 46 Plaintiff's Profiles; and Ex. 44-45, 46A-F, 65-68; Plaintiffs' Affidavits). HGI asserts a "factual showing of secondary meaning is entirely absent." HGI's own exhibits and laches argument negates their position. Regardless, arbitrary or fanciful marks are entitled to protection, whether or not they have acquired secondary meaning. See Frosty Treats, Inc. v. Sony Computer Entertainment America, Inc., 426 F.3d 1001 (8th Cir.2005); Yellow Cab Company of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 Plaintiffs' marks are not merely generic or descriptive (Ex. 25, Schedule of

Plaintiffs' Marks), and HGI/FUBU used Plaintiffs' fanciful marks on clothes and hangtags: "Curly", "Showboat", "Twiggy", etc. (Ex. 12; Ex. 13A). HGI and their licensee, FUBU, placed Plaintiffs names on hangtags entitled "Legends of the Hardwood" (Ex. 12), and this alone confirms they are well known. HGI does not dispute the apparel was sold in interstate commerce. (HGI RNSOF ¶10). See also the digital images of Plaintiffs' names, nicknames, numbers and images (Ex. 12A, Items 1-113), and HGI's own exhibits (PRASF ¶1; PRRNSOF ¶¶1,41--still used in programs). Personal names may acquire secondary meaning with widespread public recognition. E&J Gallo Winery v. Gallo Cattle Company, 967 F.2d 1280 at [15] (9th Cir.1992). Mannie Jackson wrote to all alumni, waxing on about talent, brands and Halls of Fame, all

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chief factors that comprise "likelihood of confusion" are undisputed, and, on balance, sufficient for summary judgment--intent, similarity, and strength of marks. A. Intent: Plaintiffs have asserted HGI'S total lack of authority and their intent to "profit by confusing customers concerning the endorsement of the product." (Plaintiffs Memo, P.3, Lines 25-26, P.4, Lines 3-4, citing to PSOF ¶¶6,8,40,44-45.) Intent need not be shown to find infringement under the Lanham Act. NMH Publishing Co., Inc. v. Brincat, 504 F.2d 713 (9th Cir.1974). Where intent is shown, likelihood of confusion is presumed. It is undisputed that HGI and FUBU intended to, and did, use Plaintiffs' names, nicknames, and numbers on their merchandise. (PSOF ¶¶12-13; FUBU's FFSOF ¶¶8-9, Doc. 263; Ex. 1G, Blenden Tr. 126-127). The law requires no malice and HGI'S alleged belief it had the right is irrelevant to this factor. Where intent is shown, the inference of confusion is readily drawn. See HMH Publishing Co. Inc. v. Brincat. Intent may be constructive and shown by the circumstances. Brooksfield Communications, Inc., v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir.1999), Official Airlines Guides, Inc. v. Goss, 6 F.3d 1385 (9th Cir.1993). To disgorge profits, intent is at least relevant, though not expressly required by §43(a) of the Lanham Act. Intent may be shown circumstantially and be constructive, and need not be actual. See Brooksfield. Mannie Jackson's dissembling as to his intent is telling. In deposition Jackson states "he never intended to market those names" (Ex. 1A, Jackson Tr. 186), and he never asked FUBU to include individual

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names (Id. at 278). In his letter to Alumni, he states that "the younger guys are the most popular" (Ex. 9C), but went on to use Plaintiffs' names (Ex. 13). It is undisputed that HGI's licensee FUBU conducted no due diligence as to Plaintiffs' rights. (HGI RNSOF ¶¶16-17,19). The law requires express authority between a licensor and licensee before the licensee may sublicense a right of publicity or a trademark. Miller v. Glenn Miller Productions, 318 F.Supp. 923 (C.D.Cal.2004). Willful intent may be shown by a lack of due diligence. E&J Gallo Winery v. Consorzio del Gallo Nero., 782 F.Supp. 472 (N.D.Cal.1992)(failure to get a legal opinion). FUBU was "not interested in looking" at contracts, and Plaintiffs names were never even brought up. (HGI RNSOF ¶¶ 7, 13,14). It is

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undisputed that neither HGI nor FUBU contacted any Plaintiff (Id. at 17, 18) and FUBU's Blenden (a lawyer) never saw Plaintiffs' contracts (Id. at 1b). B. Similarity of Marks: Plaintiffs' marks (Ex. 25) and their various combinations are identical to those used by HGI and FUBU on their clothes. (Ex. 12-13; PSOF ¶70). This factor is so strong that it may be considered first. Brooksfield at [27][31]. The greater the similarity, the greater the likelihood of confusion. GoTo.com Inc. v. Walt Disney Company, 202 F.3d 1199 (9th Cir. 2000). C. Strength of Plaintiffs' Marks: Plaintiffs are well known sports celebrities. FUBU's Weisfeld named

some Plaintiffs as being "more recognizable than current players." (Ex. 1F, Weisfeld Tr. 108; PSOF ¶114; Ex. 46, Plaintiffs' Profiles). These factors alone are so strong as to support summary judgment on two main issues: Plaintiffs have protectable marks that were exploited in commerce, without authority, and there is a likelihood of confusion. III. PLAINTIFFS' RIGHT OF PUBLICITY CLAIM HAS MERIT

HGI asserts that Plaintiffs "have not shown consumers purchased the apparel because their information was on it." But this not even the legal standard. All that need be shown is appropriation for a commercial advantage of a plaintiff's name or likeness without consent. Pooley v. National Hole in One Association, 89 F.Supp.2d 1108 (D.Ariz.1989). It is undisputed that no direct express authority was given to

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HGI. (HGI RNSOF ¶6; PSOF ¶¶59-64,67). It is also undisputed that there was no contact by HGI on HGI'S licensee, FUBU. (HGI RNSOF ¶¶17-19; PSOF ¶18). HGI asserts that Plaintiffs have no injury as the "only" injury is that they were not compensated for the use of their names and likenesses. But, this is all the injury that need be shown and is the typical injury for rights of publicity claims. (PSOF¶104, disputing HGI'S SOF¶103). As for Plaintiffs never establishing a reasonable royalty for the use of their names and likenesses, it is undisputed that HGI themselves paid Plaintiffs 8% for apparel (HGI RNSOF ¶24), and 25% for bobbleheads (Id. at 26); the CBA stated 25% and Neal's contract stated 25%. (PSOF ¶103, disputing HGI's SOF ¶102). HGI HAS BEEN UNJUSTLY ENRICHED

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HGI was unjustly enriched at Plaintiffs' expense. (Plaintiffs' Memo, P.5, Line 27; Ex. 6, and 9C at P.2, Line 9 describing the 10% royalty on the first $10 million in revenue to be paid to HGI, and (Ex. 9C) Jackson's letter as to the tremendous success of the FUBU deal). HGI'S use of Plaintiffs' marks conferred a benefit upon HGI which would be inequitable to retain to the exclusion of Plaintiffs. V. PLAINTIFFS' FALSE LIGHT INVASION OF PRIVACY CLAIM HAS MERIT

HGI published Plaintiffs' names (Ex. 12A) falsely implying an endorsement. A reasonable person 7 8 9 10 11 12 13 14 15 16 17 A. HGI Did Not Acquire the Player Contracts by Purchase or Assignment 18 19 20 21 22 23 24 25 26 27 months of negotiation (Ex. 1I, Horton Tr. 66), and HGI does not dispute this fact. (HGI RNSOF ¶¶5,7). 28
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could find it offensive to have their celebrity status used in such a manner without permission. Outrage is not required. Godbehere v. Phoenix Newspaper, Inc., 783 P.2d 781 (Ariz.1989). HGI conducted no due

diligence, which was beyond reckless given their resources and those of their licensee FUBU. (PSOF ¶60, 61,67,120). It is undisputed that there was no due diligence at all as to Plaintiffs' rights. (HGI RNSOF ¶1314, 16-18). Additionally, Plaintiffs assert further reckless disregard in citing to HGI'S failure to review the Collective Bargaining Agreements (Ex. 2), or the player contracts (Ex. 3). HGI's assertion that the union was "not involved in the bankruptcy" ignores the references to the union and pensions in the documents at the time. (PRASF ¶¶19,32). Also, there is no evidence the union was ever disbanded. (PRRNSOF ¶48). VI. PLAINTIFFS' PLAYER CONTRACTS ARE INVALID

When Jackson bought the Globetrotters, the schedules to the Asset Purchase Agreement ("APA") delineated hundreds of assets on detailed schedules down to the desks and chairs, contracts and trademarks, and "player contracts." (Ex. 5A-D; Ex. 1H, Nikolis Tr. 35; Ex. 1I, Horton Tr. 65). HGI asserts NatWest "did not delineate each and every asset," which misrepresents their intent to do so. (PRASF ¶¶14,16,22-28). Schedules on numerous drafts for player contracts and trademarks did not list Plaintiffs. (Ex. 5A, P.1308, Players' Contracts; Ex. 5B, P.1290, Intellectual Property; Ex. 5C, P.1233, Intellectual Property and P.1196, Players' Contracts; Ex. 5D, P.1385, 2.1(F), Intellectual Property and P.1386, 2.1(I), Player Contracts.) Plaintiffs' names and contracts never even came up or appeared in any document during the many

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It is also undisputed that a pension plan existed for Harlem Globetrotter players (Ex. 2A; Ex. 71(2)). Plaintiff Hall still receives his pension. (Ex. 1S, Hall Tr. 16). Plaintiff Sanders' contract specifically refers to the CBA. (Ex. 3E, ¶3). The pension plan is in a letter to Rivers. (Ex. 10). Jackson rejected pension

funding obligations in the APA (Ex. 5D, P.1386), that were present in the earlier IBC sales documents. (Ex. 5C, P.1196). Such is an act of rejection of provisions of the CBA in violation of 11 U.S.C.A. §1113(f). Plaintiffs dispute HGI's assertion that the "standard" publicity provision was incorporated into the

7 8 9 10 11 12 13 14 15 16 17 this obligation that appeared on previous schedules--Ex. 5C, P.1196). Jackson, at best disingenuously, 18 19 20 21 22 23 24 25 26 27 bobbleheads. (HGI RNSOF ¶26; PSOF ¶103). 28
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CBA. The 1983 CBA Index (Ex. 2B, Bates stamp 1126) specifically omits ¶1 of Appendix E, which relates to the incorporation by the CBA of the publicity rights provision. Appendix E (produced by HGI) is incomplete and HGI's counsel at the Thornton deposition asked Thornton if he had a copy on two occasions. He did not. (Ex. 1R, Thornton Tr. 90, 118; PRRNSOF ¶2 discusses this fact in detail). HGI asserts an additional "fact" that the union "did not exist at the time MJA purchased the Globetrotters in 1993," and that MJA didn't "even know any union related liabilities." (HGI Add. SOF ¶8, Doc. 267). Aside from the falsity of the assertion, the union's relevance to ascertaining the intent of the real parties to the contracts is at the time of the Plaintiffs contracts--not when Jackson came along. Jackson intentionally deleted the union pension funding obligations in 1993. (Ex. 5D, Schedule 2.1(I), P.1386 omits

testified he heard of the union from the "media" in the "1970s", but did not know anything about it. (Ex. 1A, Jackson Tr. 108). But, Vaughn testified he received inquiries from old players about the union and pension funds, turned the inquiries over to Mannie Jackson and never heard any more about it "never, nothing." (Ex. 1D, Vaughn Tr. 49-50). If the player contracts are to be asserted by HGI, they have to be read with the CBA in effect at that time and with Plaintiffs' course of conduct to ascertain the intent of the parties. (PSOF ¶2,68,75). Jackson's intent is irrelevant. Every Plaintiff believes the CBA affected his contract and they have a reasonable basis for the belief. (PSOF ¶¶2,40,47-48,51,66,68,80,87; Ex. 75D; PRRNSOF ¶47). It is undisputed that HGI paid a 25% royalty to Plaintiffs Neal and Haynes for the

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An analysis of the provisions of the APA cited by HGI instantly expose the falsity of their assertion that "all contracts were conveyed." At P. 23 of HGI's Memo "intangible assets" is erroneously defined to include "player rights and contracts" and other items. The "definition" is only a footnote on the page breaking down the sale price. The items referenced in the footnote are specifically defined in the contract. Predecessor Globetrotter President Horton states that Schedule 3.6 is not a schedule listing assets, but just an allocation of the purchase price. (Ex. 1I, Horton Tr. 62). NatWest's lawyer, Nikolis, confirmed that only

7 8 9 10 11 12 13 14 15 16 17 states "Schedule 2.1(F) hereto sets forth a true and complete list as of the date hereof of all proprietary 18 19 20 21 22 23 24 25 26 27 73(E), Thornton Aff. as to lack of attorneys and duress involved). Thornton was terminated with no notice 28
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eleven player contracts are listed on Schedule 2.1(I), P. 1386, but do not list Plaintiffs. (Ex. 1H, Nikolis Tr. 33-34). Also the "trademarks, tradenames" listed in the footnote are another category specifically defined on Schedule 2.1(F) "Intellectual Property Rights" with six pages of registered trademarks--none listing Plaintiffs' names. Section 2.1 of the APA (Ex. 5D at P. 1325) defines the Acquired Assets To Be Transferred as "the property described on" the schedule, and specifically states "the trademarks, service marks and tradenames, and service mark registrations described on Schedule 2.1(F) hereto," and "the contracts, leases, purchase and sales orders, permits, licenses, and the agreements described on Schedule 7.1(F) hereto," which is the schedule listing the contracts of players like Dunbar. As if there were any room for doubt, the APA also

rights used by Seller in the conduct of the Harlem Globetrotters Business" (Section 7.4, P. 1328), and "all such contracts (on Schedule 2.1(I)) are in full force and assignable to buyer without the consent of any third party." HGI does not dispute that Plaintiffs do not appear on either or any schedule. (HGI RNSOF ¶5). B. The Contracts are Unenforceable as Unconscionable as a Matter of Law The existence in the business world of such an overreaching and unconscionable provision as HGI'S "standard" 12(a) is rare. The brazen attempt to enforce it against old retired basketball players for profit shocks the conscience, especially in light of the utter failure of consideration, and the inadequacy of legal advice. Plaintiffs signed their contracts, they had no individual bargaining power. (PSOF ¶79; Ex. 73; Ex.

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even though he was the union president. (Ex. 83). The Globetrotters didn't allow lawyers or agents for most players. (PSOF ¶85 (Rivers); PSOF ¶82 (Hall); PSOF ¶83 (Neal)). C. The 1993 Bankruptcy Proceedings Extinguished the Contracts or HGI's Right to Use Plaintiffs' Names And Likenesses Plaintiffs provide certified copies from the Clerk of the Bankruptcy Court. (Ex. 72A-D, formerly Ex. 4A-D). Mannie Jackson via MJA injected himself early into the bankruptcy proceedings as a potential buyer (Ex. 72I), and analyzed, then accepted or rejected executory agreements scheduled. (Ex. 71A; Ex. 71I). All assets, including intellectual property were then in this process involving literally dozens of lawyers. The SEC admonished the debtor (IBC) to specifically identify executory contracts and the terms thereof. (Ex. 72E, ¶3). MJA rejected contracts, including the Wide World of Sports Contract with court approval. (Ex. 72F-I).

12 13 14 15 16 17 18 19 20 21 22 contracts were scheduled (Ex. 1H, Nikolis Tr.18), and NatWest's Horton, said the subject of Plaintiffs on 23 24 25 26 27 28
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HGI asserts "all contracts were transferred to MJA via the asset purchase agreement." Exhibit 72A is the Order confirming rejections and Exhibit 72D lists all executory contracts being reviewed by IBC, NatWest and Jackson (MJA). MJA is referenced in the May 21, 1993 Motion as having "being in

negotiation with debtor." (Ex. 72I; ¶7). MJA directly participated in the rejection of such Globetrotter related executory contracts as IBC's licensing deal with Transcolor (clothing sales) and IJE (computer games) (none of which incidentally utilized Plaintiffs' marks) or even references any right to use Plaintiffs' names or likenesses. (Id. at ¶9). The IJE licensees opposed rejection but lost. (Ex. 72F). Thus, Jackson did NOT accept transfer of all contracts. There is no evidence that Jackson, MJA or HGI bought, intended to buy, or were assigned Plaintiffs' contracts. NatWest's lawyer, Nikolis, confirms that only eleven player

their contracts never came up. (Ex. 1H, Horton Tr.29-30). The Amended Joint Disclosure Statement (Ex. 72C certified Amended Joint Disclosure Statement dated April 20, 1993) is crystal clear that: "The Debtors will reject all executory contracts except those contracts which are the subject of separate motions to assume filed by the Debtors prior to the hearing to confirm the plan and

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those contracts to be assumed which are listed in the "Schedule of Assumed Executory Contracts" attached as Exhibit A hereto." (Ex. 72C, P.11, F(1) Executory Contracts, (b) Miscellaneous Contracts and Leases). Additionally, as to HGI's false assertion that the "union" was nonexistent at this time, "The Debtors will assume all union contracts not already assumed except that those contracts which are the subject of separate motions to reject filed by the Debtors..."(Ex. 72C, P.11, F(1)(a) union contracts). The Debtors Amended Joint Plan of Reorganization as Modified (Ex. 72B) states:

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"Except as hereinafter provided, all unexpired leases and executory contracts (including, but not limited to, insurance contracts, agreements, leases, collective bargaining agreements and relationships referred to in the Statement of Executory Contracts filed with the BANKRUPTCY COURT, along with DEBTORS' employee agreements, practices or courses of dealing, to the extent they constitute executory contracts) not specifically assumed by the DEBTORS are rejected by the DEBTORS (whether or not the subject of an order of the BANKRUPTCY COURT but with respect to collective bargaining agreements only to the extent consistent with § 1113 of the BANKRUPTCY CODE).........executory contracts which the DEBTORS will assume are set forth on an Exhibit to the DISCLOSURE STATEMENT accompanying the PLAN." [emphasis added] (Ex. 72B, Art.X(A) P.14). CONCLUSION The law recognizes that survival rights exist in rights of publicity. Lugosi v. Universal Pictures, 25 Cal.3d 813 (Cal. 1979). If there is to be any "perpetual" enjoyment of Plaintiffs' fame, it should be for Plaintiffs' grandchildren, not Mannie Jackson and his investors. Plaintiffs' Motion for Summary Judgment should be granted against all HGI defendants, as these are undisputed material facts supporting a finding of liability.

DATED this 13th day of December, 2005.

By:

____/S/ Clay M. Townsend___________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA

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20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via first class mail upon the following attorneys: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon

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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 27 28 Vanessa Braeley, declares as follows:

Certificate of Service

1. I hereby certify that on December 13th, 2005, a true and correct copy of the Plaintiffs' Reply to HGI Defendants Response to Neal Plaintiffs Motion for Summary Judgment was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on December 13th, 2005, a true and correct copy of Plaintiffs' Reply to HGI Defendants Response to Neal Plaintiffs Motion for Summary Judgment postage paid thereon, was sent via U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC

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Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon 3. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: December 13th, 2005. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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