Free Statement - District Court of Arizona - Arizona

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Morgan & Morgan, P. A. 20 N. Orange Avenue, 16th 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

MEADOWLARK LEMON, a married man, Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, PLAINTIFFS' STATEMENT OF FACTS IN INC., an Arizona corporation; HARLEM SUPPORT OF PLAINTIFFS' REPLY TO GLOBETROTTERS INTERNATIONAL HGI'S RESPONSE TO PLAINTIFFS' FOUNDATION, INC., an Arizona corporation; MOTION FOR SUMMARY JUDGMENT MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business in Arizona; Defendants.

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21 FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, 22 ROBERT "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS, 23 24 Plaintiffs,

25 vs. HARLEM GLOBETROTTERS INTERNATIONAL, 26 INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation;

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1 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 2 COLLECTION, LLC, a New York limited liability company, GTFM of Orlando, LLC; and GTFM, LLC, a 3 New York limited liability company doing business in Arizona, 4 5 6 7 8 vs. 9 MEADOWLARK LEMON, a married man, 10 11 12 13 PLAINTIFFS, FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" 14 15 16 17 18 19 20 21 22 23 PLAINTIFFS' STATEMENT OF FACTS 24 25 26 27 28 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 THORNTON, ROBERT "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS (hereinafter collectively the "PLAINTIFFS"), by and through their attorneys and pursuant to L.R.Civ. 1.10(1)(1) of the United States District Court for the District of Arizona, hereby submit their Statement of Facts in Reply to HGI'S Response to Plaintiffs' Motion for Summary Judgment against the Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. and Catherine Jackson (hereinafter collectively with other party Defendants as "Defendants" or individually "HGI") and hereby reassert their Responses to HGI'S Statement of Facts. (Doc.#196). This submission is cited as "PSOF". Counter-defendant. Defendants. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant,

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Plaintiffs' depositions), wherein HGI granted FUBU a license to manufacture and distribute merchandise. 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's), including agreements in 1977 and 1983, with various amendments pursuant to which Harlem Globetrotters, Inc. (a corporate name utilized by various owners)

7 8 9 10 11 12 13 14 15 16 17 4) Jackson formed HGI in 1993 and entered into the Asset Purchase Agreement of August 1, 1993 18 19 20 21 22 23 24 25 26 27 28 (Exhibit 5D, Asset Purchase Agreement). 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)). 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. 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't do anything to disband it" (Ex. 1M, Dunbar Tr. 44-45). 3) Harlem Globetrotters, Inc. (unrelated to Defendant Jackson's HGI) bought the Harlem Globetrotters from International Broadcasting Corp ("IBC") in 1993, a corporation that filed for bankruptcy on August 30, 1991. (Exhibit 5A).

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62, stating "I'm certain that they were not asked"; Exhibit 1K, Neal Tr. 168; Ex. 1Q, Haynes Tr. 57; Ex. 1S, Hall Tr. 61; and Ex. 1L, Rivers Tr. 49). 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). 8) FUBU (as GTFM, LLC), entered into a License Agreement with HGI on June 1, 2002.

7 8 9 10 11 12 13 14 15 16 17 on the representations of Jackson. (Ex. 1A, Jackson Tr. 261, and Ex. 1F, Weisfeld Tr. 68, stating 18 19 20 21 22 23 24 25 26 27 28 contracts were "boxed up" and "not accessible" "due to the bankruptcy.") 12) HGI represented to FUBU in the License Agreement that "each such player has granted HGI in perpetuity the rights ... and the unlimited right to sublicense such rights to third parties". (FUBU Motion p.4, 1.8, and Exhibit A, Sacks Decl. Section 1.9(a) (viii)). 13) FUBU asked for an indemnity in their contract with HGI because HGI represented to FUBU that all of the players contracts were "standard" player contracts and FUBU was "not interested in looking at 600 plus contracts stuffed away some place". (Exhibit 1A, Jackson Tr. 262). Plaintiffs' names are not specifically mentioned as "Licensed Property." (FUBU Motion p.3, 1.20) (Sacks Decl. Exhibit A, Section 1.3(b)). FUBU gets the financial backing from their partner Samsung America. (Exhibit 1F, Weisfeld Tr.51). 9) The clothing line bearing Plaintiffs' names and jersey numbers have been marketed, offered for sale and sold in interstate commerce in the United States, and overseas. (Exhibits 9C, 6, and 26). 10) Much of the Harlem Globetrotters apparel sold by FUBU had hang tags listing the specific player's names, including Plaintiffs', which were used as marketing tools. (Ex. 12; Exhibit 1G, Weisfeld Tr.58). 11) FUBU representatives never conducted any due diligence as to Plaintiffs' rights, and relied solely

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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. 2021). (Plaintiffs previously stated that "a sample" was attached which was erroneous). 15) Simply because Mannie Jackson was the owner of the Globetrotters and was former player, FUBU relied on Mannie Jackson's assertions that every player singed the same contract and every player had given up his rights to HGI to use his name. (Exhibit 1G, Blenden Tr.35-36).

7 8 9 10 11 12 13 14 15 16 17 contacted Plaintiffs. (Exhibit 1K, Neal Tr. 144-145; and Exhibit 1S, Hall Tr. 62). 18 19 20 21 22 23 24 25 26 27 and Exhibit 1P, Gallo Tr. 1-19). 28 20) Aurum is CEO of FUBU the Collection LLC. (Exhibit 1E, Aurum Tr. 7). FUBU and Aurum are in charge of marketing, distribution, and product placement. (Id. and Exhibit 27, P.29, §6.5). 21) "Some" of the FUBU/HGI apparel contained Plaintiffs' trademarks (FUBU Motion, p.5, L.4) Weisfeld Decl. Paragraph 5). 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; 16) Larry Blenden does not recall seeing any player contracts that were signed by the Plaintiffs. (Exhibit 1G, Blenden Tr. 36-37). 17) No one from FUBU contacted any player directly, especially since it was warranted and represented to FUBU that HGI already had the right to use the players' names and likenesses (Exhibit 1G, Blenden Tr.47-48; and Exhibit 1Q, Haynes Tr. 92). 18) Before entering into the agreement with FUBU, HGI did not contact Plaintiffs or any other former players or seek out their permission in any way. (Exhibit 1A, Jackson Tr. 204). 19) Aurum did not make any effort to contact any of the Plaintiffs about their permission or approval of the FUBU clothing line. (Exhibit 1E, Aurum Tr. 23-24). No one from FUBU

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23) Michael Syracuse is the chief financial officer of HGI and is responsible for financial matters and accounting records of HGI (Exhibit 1B, Syracuse Tr. 9, 11). 24) Syracuse wrote Plaintiffs on October 31, 2003 and stated "Mannie approved a portion of the net sales to go directly to players. This program was established as a good will gesture. You are not entitled to any payments." (Exhibit 9B). But, checks were written to Plaintiffs for FUBU sales (Exhibits 9A and 9B). Thornton's decision to sue was made before the check was received.

7 8 9 10 11 12 13 14 15 16 17 27) Jackson wrote to the former players (including Plaintiffs) on September 4, 2003 that the total 18 19 20 21 22 23 24 25 26 27 28 would be "approximately $30,000.00" (Exhibit 9C). 28) The FUBU sales reported to HGI as of November 2003 were actually $22,661,645.50 (Exhibit 9D). 29) Revenues from sales of FUBU merchandise bearing Plaintiffs' names went to Harlem Globetrotters International Foundation, Inc. (Exhibits 9A and B). 30) 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). (Exhibit 1R, Thornton Tr.70). 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). 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's 8% royalty while being told, "you are not entitled to any money." (Exhibit 9A, Jackson letter to Plaintiffs). The FUBU licensing agreement was actually for 10% of the first $10 million (Exhibit 9D, Article II).

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31) Govonor Vaughn, head of alumni affairs for HGI could not name a single former player who had been helped by the foundation, nor did he know what the Foundation actually does. (Exhibit 1D, Vaughn Tr. 6-7). 32) Vaughn has been employed by Jackson since 2000 (Exhibit 1D, Vaughn Tr. 5). 33) Plaintiffs never agreed to allow their names to be used to raise money for Jackson's Foundation (Exhibit 1L, Haynes Tr. 98, 107-108) and don't know what it does. (Ex. 1T, Sanders Tr. 128).

7 8 9 10 11 12 13 14 15 16 17 37) "Big D" Dallas Thornton's last player contract terminated in 1982, and was with Harlem 18 19 20 21 22 23 24 25 26 27 (Ex. 1T, Sanders Tr. 119-120). 28 Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California. (Exhibit 3D ¶2, p. 1, and ¶1b). 38) "Gator" River's last player contract terminated 1985, and was with Harlem Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California. (Exhibit 3F, ¶2, p. 1, and ¶1b). 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. 34) "Curly" Neal's last player contract terminated 1989, and was with IBC, owned by IBC and governed by the laws of Delaware (Exhibit 3A, page 1, 2, and ¶ 7). 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). 36) Showboat Hall's last player contract terminated 1974, and was with Harlem 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).

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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's always been the position we've been under"), (Ex. 1K, Neal Tr. 168; Ex. 45; and Ex. 1S, Hall Tr. 47; Exhibit 66, 46A-F, 48, Affidavit Exhibits 32-37; PSOF ¶68, 80). 41) Aside from the FUBU clothing line and some bobble head dolls, HGI has not licensed or

7 8 9 10 11 12 13 14 15 16 17 prior to such termination." (Exhibit 3B ¶15(a); and Exhibit 1Q, Haynes Tr. 102). 18 19 20 21 22 23 24 25 26 27 28 45) Neal's contract states that rights granted to "HG" are only for the term of the contract (¶9) and that Neal will receive 75% of "non-Globetrotter" services. (Exhibit 3A, ¶11). 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). 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've been under." (Exhibit 1L, Rivers Tr. 101-102; and Exhibit 10, Rivers utilized the Plaintiffs' names and likenesses. (Exhibit 1A, Jackson Tr. 249-250). 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). 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). 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

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Letters). Other Plaintiffs were paid for merchandise in addition to salaries in player contracts. (Exhibit 1K, Neal Tr. 175). 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 1M, p.37-41), and there is no evidence that

7 8 9 10 11 12 13 14 15 16 17 52) Plaintiffs have located, verified, and scheduled infringing garments after a limited investigation. 18 19 20 21 22 23 24 25 26 27 market Globetrotters clothing. 28 (Exhibit 12). -9Some FUBU CAD'S (Computer Assisted There are numerous exhibits. (Exhibit 13, Phipps Affidavit, and the Schedule of MerchandiseA). 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). Mannie Jackson never asked Plaintiffs if he could put their names on ladies dresses. (Exhibit 1A, Jackson Tr.264-265). 54) FUBU designed, manufactured and used two hangtags entitled "Legends of the Hardwood" to formal action was ever taken to disband the UBPA. (Id., at p. 45). 49) HGI has only told some Plaintiffs to cease using "Harlem Globetrotters" uniforms in conjunction with Plaintiffs' appearances. (Exhibits 20 and 23). 50) The player contracts and related correspondence through at least 1989 of Sanders (Ex. 1E(b)) and 1985 of Rivers (Ex. 56A), specifically reference the Collective Bargaining Agreement. 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).

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Drawings) clearly show hangtags.

(Exhibit 24).

FUBU'S Weisfeld stated, "All Harlem

Globetrotters garments would have some tag (and) are marketing tools." (Exhibit 1F, Weisfeld Tr.58, 60). 55) These hangtags bear Plaintiffs' names and were attached to garments bearing Plaintiffs' names, numbers and likenesses. (Exhibit "13", Phipps Affidavit). 56) "Legends of the Hardwood" hangtags were also attached to FUBU garments not otherwise

7 8 9 10 11 12 13 14 15 16 17 was not assignable. (Exhibit 1Q, Haynes Tr. 102). There were no rights in HG (or HGI) after 18 19 20 21 22 23 24 25 26 27 28 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). 60) Plaintiffs never received any calls from Mannie Jackson about the FUBU deal. (Exhibit 1(Q), Haynes Tr.96). (Exhibit 1K, Neal Tr. 13). (Ex. 1T Sanders Tr. 126). 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 bearing Plaintiffs' names or any other players' names, numbers or likenesses. (Exhibit 13 (A), Phipps Affidavit). 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). 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). 59) Plaintiffs have never signed any agreements with HGI. (PSOF ¶ 62). Haynes' player contract

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¶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). 62) Plaintiffs have never signed any agreement of any kind with HGI. (Exhibit 32, Rivers Affidavit ¶5; Exhibit 33, Thornton Affidavit ¶5; Exhibit 34, Sanders Affidavit ¶5; Exhibit 35, Neal Affidavit ¶5; Exhibit 36, Hall Affidavit ¶5; Exhibit 37, Haynes Affidavit ¶5). 63) Plaintiffs have never signed any agreement of any kind with FUBU. (Exhibit 32, Rivers Affidavit ¶6; Exhibit 33, Thornton Affidavit ¶6; Exhibit 34, Sanders Affidavit ¶6; Exhibit 35, Neal Affidavit ¶6; Exhibit 36, Hall Affidavit ¶6; Exhibit 37, Haynes Affidavit ¶6). 64) HGI never asked Plaintiffs permission to use their names, likenesses or player numbers; never called them, wrote them or consulted them concerning using their names, likenesses or player numbers. (Exhibit 32, Rivers Affidavit ¶7; Exhibit 33, Thornton Affidavit ¶7; Exhibit 34, Sanders Affidavit ¶7;

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67) Mannie Jackson never called Plaintiffs once to ask them about their player contracts. Neither did anyone from HGI or FUBU. (Exhibit 32, Rivers Affidavit ¶25; Exhibit 33, Thornton Affidavit ¶19 Exhibit 34, Sanders Affidavit ¶19; Exhibit 35, Neal Affidavit ¶19; Exhibit 36, Hall Affidavit ¶18; Exhibit 37, Haynes Affidavit ¶17). Exhibit 35, Neal Affidavit ¶7; Exhibit 36, Hall Affidavit ¶7; Exhibit 37, Haynes Affidavit ¶7). 65) Plaintiffs have never received a sample of any merchandise bearing their names, likenesses or player numbers from HGI or FUBU. (Exhibit 32, Rivers Affidavit ¶8; Exhibit 33, Thornton Affidavit ¶8 Exhibit 34, Sanders Affidavit ¶8; Exhibit 35, Neal Affidavit ¶8; Exhibit 36, Hall Affidavit ¶8; Exhibit 37, Haynes Affidavit ¶8). 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 Affidavit ¶15; Exhibit 34, Sanders Affidavit ¶15; Exhibit 35, Neal Affidavit ¶15; Exhibit 36, Hall Affidavit ¶15; Exhibit 37, Haynes Affidavit ¶14).

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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). Payments to players for television and movies resulted from the Collective Bargaining Agreement. (Exhibit 1R, Thornton Tr.121-122,

7 8 9 10 11 12 13 14 15 16 17 ¶22; Exhibit 36, Hall Affidavit ¶20; Exhibit 37, Haynes Affidavit ¶20). 18 19 20 21 22 23 24 25 26 27 Affidavit ¶23). 28 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, Thornton Affidavit ¶23; Exhibit 34, Sanders Affidavit ¶23; Exhibit 35, Neal Affidavit ¶23; Exhibit 36, Hall Affidavit ¶21; Exhibit 37, Haynes Affidavit ¶21). 72) Plaintiffs' have never been told by HGI or any other owner of the Harlem Globetrotters to stop using their names, numbers or likenesses for any of the many appearances and endorsements done for years. (Exhibit 32, Rivers Affidavit ¶31; Exhibit 33, Thornton Affidavit ¶25; Exhibit 34, Sanders Affidavit ¶25; Exhibit 35, Neal Affidavit ¶25; Exhibit 36, Hall Affidavit ¶22; Exhibit 37, Haynes saying his Gilligan's Island payments were because of the CBA). "I thought I was protected by the Collective Bargaining Agreement." (Id. at 75). 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). 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

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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). 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

7 8 9 10 11 12 13 14 15 16 17 payment. Plaintiffs' beliefs are based upon: 18 19 20 21 22 23 24 25 26 27 28 a) Oral representations by owners that the contracts were completely terminated at the end of their employment, except for use of Plaintiffs' pictures to advertise the team and, emphasize the heritage. (PSOF ¶¶59, 44, 45, 46). Thornton played his last year on a verbal contract. (Exhibit 1R, Thornton Tr.28-29) and he received a letter terminating his contract and "no longer any service to the Globetrotters." (Id. at 67). b) A course of business conducted while Plaintiffs were employed by the Globetrotters that required Plaintiffs' permission and payment. Numerous endorsements were done this way. HGI concedes the endorsements and appearances at HGI DSOF ¶¶27, 28, 29, 30, 31, but only Plaintiffs presented evidence that they were paid for these; (PSOF ¶47; and Ex. 45). (Ex. 1S, Hall Tr. 47: extra pay for endorsement and the popcorn machine); 75) ¶27; Exhibit 36, Hall Affidavit ¶24; Exhibit 37, Haynes Affidavit ¶25. PLAINTIFFS' STATEMENT OF FACTS DISPUTING THE FACTS ASSERTED BY HGI IN DOC.#196 SOF¶4: Mannie Jackson believes HGI owns the rights to use and license former player names and likenesses. Plaintiffs have never authorized, verbally or in writing, any of HGI defendants to use their name, likeness, or player number for merchandise. (PSOF ¶¶ 61, 62; Ex. 32 Rivers Aff. ¶3; Ex. 33 Thornton Aff. ¶3; Ex. 34 Sanders Aff. ¶3; Ex. 35 Neal Aff. ¶3; Ex. 36 Hall Aff. ¶3; Ex. 37 Haynes Aff. ¶3). Plaintiffs believe that HGI does not own the rights to use their names, numbers, and licenses for commercial endorsements without their permission and

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and (Ex. 1T, Sanders Tr. 121: entitled payment for appearances not withstanding any language in player's agreement). (Ex. 1R, Thornton Tr. at 40). c) Plaintiffs had no lawyers and signed the contracts without negotiation because they were told to take it or leave it. (Ex. 1S, Hall Tr. 18, 25, 40; Ex. 1K, Neal Tr. 28; and Ex. 1R, Thornton Tr. 130). d) Plaintiffs believed the collective bargaining agreements with the union gave them additional merchandise rights; (PSOF ¶68; Ex. 2B Article 14.12; Ex. 50) (Ex. 1T Sanders Tr. 120-"25% of merchandising"). e) Plaintiffs do not believe that they gave HGI's predecessors rights to their names in perpetuity as Plaintiffs continued to use their own names. (PSOF ¶ 72). (Exhibit 1K, Neal Tr. 129). (Ex. 1S Hall Tr. 39) f) Neither HGI nor their predecessors ever told plaintiffs to cease using their names. Only Neal and Rivers were once told to not wear the Globetrotters uniform without advance permission (PSOF ¶ 72, Ex. 20 and 23; Ex. 1L, Rivers Tr. 74--saying later President Anzirino said to disregard the letter). g) There were no contracts involving Plaintiffs attached to the Licensing Agreement. Worse, there were no agreements of any kind between Plaintiffs and HGI that were attached to the Licensing Agreement. (Exhibit 1Q, Haynes Tr.96, Ex. 6 Licensing Agreement). SOF 5: HGI asserts the Foundation sets aside money to help needy former players with difficulty. Mannie Jackson could not name a single player the Foundation has helped (Ex. 1A, Jackson Tr. 199). Neal asked for help in 2002 but was rebuffed with demands for tax returns and more written submissions. (Ex. 51). SOF 8: HGI asserts that management approved the assignment of nicknames and numbers. Plaintiffs had their nicknames before employment with the Globetrotters and chose their own numbers. (PSOF ¶ 70). SOF 9: HGI asserts that management recycled nicknames after players leave.

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Plaintiffs' nicknames were original, originated by Plaintiffs and not recycled. Plaintiffs' numbers have been associated with them, some since high school. Hall's was retired. (PSOF ¶¶ 70, 72; Ex. 46A,D,E). Haynes' number (20) was retired. (Exhibit 1Q, Haynes Tr.64). HGI's Legends Wall has Plaintiffs' names and their numbers on the wall (Ex. 46, Plaintiffs' Profiles). Alumni Director Govonor Vaughn has known Mannie Jackson since

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Globetrotters that was in HGI's and attorney Garvey's possession. (Ex. 3 A Para 11, PSOF 23 24 25 26 27 28 45). HGI also fails to reference the merchandising terms of the Collective Bargaining Agreement. (Ex. 2 B Article 14.12). The Globetrotters use was never "exclusive" in practice, recognizing separate deals for Neal for Orlando Magic, Curly's Camp, Juniors Sports League (Ex. 1K Neal Tr. 150-151; PSOF ¶ 72). 80) 79) fourth grade, but could not name a single player that has worn Plaintiffs' numbers besides the Plaintiffs themselves. (Ex. 1D, Vaughn Tr. 36-39). SOF 13: All players, including Plaintiffs, signed standard player contracts. Plaintiffs' contracts were not standard (PSOF ¶ 9, 44,45,46,47, 50, 51, 59). Lou Dunbar's contract says salary is for playing and all rights (Ex. 38). Plaintiffs' contracts do not. Players were told to "take it or leave" (Ex. 1K Neal Tr. 28). Most Plaintiffs had no bargaining power or legal representation for negotiation (Ex. 1S, Hall Tr. 16, stating also at 18 he never read his contracts). SOF 15: Plaintiffs contracts had a merchandise clause, granting HGI perpetual exclusive rights to Plaintiffs' names and likenesses for any purpose. Plaintiffs' contracts required the Globetrotters to get approval for "endorsements". (PSOF ¶73; Ex. 3 A, B, C, D, E, F and specifically Para 12(a) of Ex. 3 F). HGI only provides limited excerpts of the provisions in HGI DSOF 22. HGI omits any references to Neal's 1985 contract giving Neal 75% of royalties generated by Neal, and 25% generated by the

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Paragraph 12(a) of the "standard" contract (Ex. 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent". SOF 16: Haynes' contract granted perpetual, exclusive rights in his name and likeness. This is disputed. (PSOF ¶¶ 61, 62, 68, 74). Haynes last contact with the Globetrotters waswhen they were in Illinois (Ex. 3B) signed on 10/15/75, which states that the only use of his publicity available was "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 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." (para.15(a). And any assignment required his written consent. Para. 18: "This Agreement may not be sold, assigned, or transferred nor may Marques' services be loaned, except as provided above in this paragraph 18, without the prior written consent of Marques."

18 19 20 21 22 23 24 25 26 27 28 82) SOF 17: Halls' contract granted perpetual, exclusive rights in his name and likeness. This is disputed. (PSOF ¶¶ 2, 61, 62, 68, 74). Hall had no lawyer to negotiate for him for his 27 years with the Globetrotters and never read his contracts except for the salary Paragraph 12(a) of the "standard" contract (Ex. 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent".

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amounts. (Ex. 1S, Hall Tr. 16, 18). Hall denied that there was such an understanding to use his name and likeness in perpetuity. (Id. at 39). Paragraph 12(a) of the "standard" contract (Ex. 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent". SOF 19: Neal's contract granted perpetual, exclusive rights in his name and likeness. This is disputed. (PSOF ¶¶ 2, 61, 62, 68, 74). Contracts were non-negotiable- "take it or leave it" (Ex. 1K, Neal Tr. 23). Neal's last cntract (Ex. 3A) with the Globetrotters was with

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is disputed. (PSOF ¶¶2, 61, 62, 68, 74). Paragraph 12(a) of the "standard" contract (Exhibit 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service 84) SOF 20: Thornton's contract granted perpetual, exclusive rights in his name and likeness. IBC and para. 11 stated at para. 21: "75% shall be paid to C & R and 25% to HG. If Neal appears in a Globetrotter advertisement individually, the division will be HG- 75% and C & R 25%." Paragraph 12(a) of the "standard" contract (Ex. 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent".

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unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent". SOF 21: likeness. Rivers' contract granted perpetual, exclusive rights in his name and

This is disputed. (PSOF ¶¶2, 61, 62, 68, 74). Rivers said that he had no lawyer and that when he tried to use an agent Art Harvey, (Globetrotters' President) would not speak to, or negotiate with, the agent (Ex. 1L Rivers Tr. 51). Rivers' grant of rights was to advertise the Globetrotters and promoting on same "not sell products for FUBU" (Id. At 60) and written evidence of this arrangement is "the checks they gave us" (Id. At 65), if used as an individual

10 11 12 13 14 15 16 17 18 19 This is disputed. (PSOF ¶¶2, 61, 62, 68, 74). Paragraph 12(a) of the "standard" contract 20 21 22 23 24 25 26 27 28 87) SOF 23: Player salaries were "full compensation" for playing, and anything else in regarding the Globetrotters, even merchandise. -18(Exhibit 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent". 86) SOF 22: Sanders' contract granted perpetual, exclusive rights in his name and likeness. versus the team Player would be compensated (Id. 61). Paragraph 12(a) of the "standard" contract (Ex. 3F) also states: "HGI shall not require Player to appear in "endorsements", as that term is understood in trade, in order to personally endorse (as distinguished from a team endorsement, even if on an individual basis) a product or service unrelated to HGI, its parent company, and its subsidiaries and affiliated companies, without Player's consent".

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1 This assertion is patently false. The "standard" contracts are clear that "salary is for 2 3 4 5 6 7 8 9 10 11 royalties per his contract. (Ex. 1K, Neal Tr. 89). Sanders was paid extra for appearances like 12 13 14 15 16 17 18 19 20 21 22 defines such uses as "not covered merchandise" (Exhibit 2(A)(B), Article 14.12.) The 23 24 25 26 27 28 Harlem Globetrotters specifically agreed on September 1, 1977, to the payment for Wide World of Sports appearances and residual payments for reruns of the program. (Exhibit 2(A)(B) Collective Bargaining Agreement Wide World of Sports Writer 9/1/77). Players Wide World of Sports (Ex. 1T, Sanders Tr. 121). Long after Plaintiffs left, HGI changed the compensation clause to read that it was payment for playing and all other rights granted in the contract. (Ex. 38, Dunbar contract ¶ 3(a)). HGI conceded that Plaintiffs did numerous endorsements and appearances (DSOF 27, 28, 29, 30, 31) but HGI conspicuously failed to admit that Plaintiffs received extra payment for such, and such were not done for the purported contract salary as "full compensations". Plaintiffs believe that the use of their names with FUBU is an endorsement requiring permission PSOF ¶¶ 60, 18, 17. Use on programs at games was approved by Neal and is consistent with Neal's last 1988 contract and the Collective Bargaining Agreement, which services as a player." The "standard" clause 12(a) makes no reference to the salary being consideration for Plaintiffs' publicity rights. Plaintiffs' total compensation was not limited to contractual salary but included additional payments for endorsements (PSOF ¶¶47, 66; Ex. 45; Ex. 1L Rivers Tr. 101; Ex. 10) Additional payment was consistent with Rivers' dealings with the Globetrotters since the inception of the relationship, "that has always been the position that we've been under" (Id. at 102). The contract salary was never "full

compensation" for any Plaintiff. Extra payments were made to Plaintiffs (Ex. 1L, Rivers Tr. 28, 29, 30) (Converse, etc.) and all Plaintiffs (PSOF ¶ 66). Neal received 75% and 25%

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received payments for television and movies resulting from the Collective Bargaining Agreements. (Exhibit 1R, Thornton Tr.121-122). SOF 32: HGI earned 7.552 million from 2005 gate receipts and a top selling item is the program featuring Plaintiffs' names. This is evidence that Plaintiffs are well-known sports celebrities with value. Plaintiffs assert that it is unconscionable for Jackson and HGI to exploit former players and pay them nothing. (Ex. 4B). SOF ¶42: Plaintiffs do not monitor, or rarely monitor the Globetrotter use of their name and likeness. Plaintiffs effectively monitored their marks in bringing this suit against HGI and FUBU. Past monitoring includes being paid for bobbleheads, and noting the use of their names with the pride of association - not with HGI, but with the tradition of the Harlem Globetrotters. Other items sold by the Globetrotters (HGI DSOF 25) were not bad enough to warrant quality control (Ex. 1K Neal Tr.82-83, Ex. 1L Rivers Tr.30, Ex. 1T Sanders Tr.73-74, 81-82, Exhibit 1R Thornton Tr.106, Ex. 1S Hall Tr.41). Jackson now calls this type of merchandise "trash" (Ex. 1A Jackson Tr.258). Even though HGI had a clothing sublicense through 1998, HGI never used Plaintiffs' names or numbers or licensed them. (Ex. 1A Jackson Tr. 258-

18 19 20 21 22 23 24 25 26 27 28 Plaintiffs investigated the deal and then did not object because they were paid 25%. HGI asserts that "8% was market" for the FUBU deal (DSOF 84), yet has already paid Neal and Haynes 25%, thus establishing "the market" (Exhibit 48, Garvey Letter Ex. 1A Jackson Tr. 176). 90) 259). Hall has never been reclusive and didn't know they were using it (Ex. 1S Hall Tr. 50). Rivers said the FUBU deal was the first time "they were using it to this extent" so it was "well, not so much monitored." (Ex. 1L, Rivers Tr. 72). SOF 54: Plaintiffs Neal and Haynes were aware that HGI used their names and likenesses on bobblehead dolls and did not object.

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91)

SOF 56: No Globetrotter has been in a publicity related suit with the Globetrotters until this case. Haynes was involved in a suit and the settlement agreement states he owns his name and can compete with his own team "The Harlem Magicians." (Exhibit 70).

92)

SOF 57: Former Globetrotters (Austin, Dunbar, Ausbie) whose names were utilized with FUBU have not sued. They participated and cashed their checks and did not object. Dunbar and Ausbie are not "former" as they were employed by HGI when Dunbar testified that if more styles were sold by HGI and FUBU then he was told about he "should get a check." Austin is in prison. (Ex. 1M, Dunbar Tr. 99).

93)

SOF 65: FUBU requested the use of all player names in the licensing agreement. But, FUBU only used Plaintiffs' names and a few others because they were well known. (Ex.

12 13 14 15 16 17 Plaintiffs. (PSOF ¶¶ 59, 61, 62). Neal did limited paid appearances for HGI. (Ex. 52) HGI 18 19 20 21 22 23 24 25 26 27 96) 28 SOF 78: The apparel included shirts, caps, pants, jeans, shorts, and shoes. -2195) offered employment to Neal but the proposal contained a merchandise clause and Neal rejected it. (Ex. 15). SOF 75: Mannie Jackson participated in the negotiations, but did not profit individually. This is patently false. Millions in royalties were paid to Harlem Globetrotters International, Inc. 100% owed by Mannie Jackson as a sub S-Corporation passing profits directly to Jackson. (Exhibit 53). Additionally, FUBU contractually gave Jackson access to a condo to use in New York City's Trump Tower for his personal pleasure. Licensing Agreement). (Exhibit 6, ¶ 10.4 94) 12, 13A), and because there was a "retro craze" and using Plaintiffs' names was "just another piece of the puzzle" trying to tap into the market. (Exhibit 1G, Weisfeld Tr.59-60). SOF 69: HGI represented to FUBU that HGI was a "party" to contacts with "each and every" past player. This was a misinterpretation by HGI. HGI was never a party to any contract with any of the

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The apparel also included dresses, jump suits, skirts, jackets, and underwear. (Exhibit , 13A). SOF 79: A "small percentage" of FUBU sales included associations with Plaintiffs. What is "small" to HGI may be "significant" to Plaintiffs. For this reason section 43(a) of the Lanham Act gives the Court discretion to, not only measure damages as profits, but exercises discretion and impose damages up to three times the amount of actual damages. "Insignificance" is a matter of one's relative position. FUBU executive Aurum testified that

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 17%. (Exhibit 54, ¶ 7, Jordache Agreement). Plaintiffs had already been paid 25% on the 28 99) 98) he considered $20 million in sales to be a "failure", "not a success". (Exhibit 1E, Aurum Tr.43). FUBU royalty reports confirm that the $10 million mark was exceeded. (Exhibit 9). HGI fails to state the "small percentage" was estimated at 10% of the total. (Ex. 1A, Jackson Tr. 137). Total sales estimated at retail were from $60 million to $100 million. (Ex. 1A, Jackson Tr. 7 and PSOF ¶¶ 25, 28). SOF 82: Plaintiffs' names and likenesses were not used to market, advertise, or sell the apparel. This is patently false. "Legends of the Hardwood" hangtags bearing Plaintiffs' names were used. (Exhibits 12 and 13A). Weisfeld testified (looking at Exhibit 12), "I guess all hangtags are marketing tools." (Exhibit 1G, Weisfeld Tr.59). SOF 84: Jackson "decided" to give 8% to the players from FUBU royalties as "8 percent was market". This is a patent falsehood. Payments to Plaintiffs were on October 31, 2003, AFTER counsel sent HGI a letter demanding information and informing HGI that Plaintiffs had counsel. HGI then sent checks directly to Plaintiffs instead of their counsel. (Ex. 11, 9A and B) 8% is not market, and Plaintiffs only got 8% of HGI's 8%. The royalty on the first $10 million in FUBU sales was 10% under the agreement, and 8% thereafter. Jackson falsely reported 8% (versus 10%) to the Plaintiffs on the report marked them with the checks. (Exhibit 6). FUBU sublicensed the HGI deal (including Plaintiffs' names) to Jordache for

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bobbleheads at Mannie Jackson's personal direction (Ex. 1A, Jackson Tr. 176; Ex. 48) and the collective bargaining agreements stated a royalty of 25% (Exhibits 2A and B). Neal's contract was at 25% (Ex. 3A). Former union president Thornton testified that 25% was "the understanding." (Exhibit 1R, Thornton Tr.68). SOF 88: The Globetrotters had no obligation to pay Plaintiffs anything for their FUBU deal. Plaintiffs were paid after his counsel demanded an accounting and authority from HGI and FUBU. (Exhibit 11). Even though HGI and their counsel were on notice that Neal was represented by an attorney, they sent a check and letter to Neal directly. (Exhibit 9--HGI letter to Plaintiffs with Check and FUBU accounting). Plaintiffs believe they received payments only because HGI was obligated to and hoped to appease them. (Plaintiffs

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 legal issue of burden shifting to defendants that provide incomplete or inaccurate sales 28 102) 101) Affidavits, Exhibits 32 at ¶ 34, 33 at ¶ 28, 35 at ¶ 28, 36 at ¶ 25, 37 at ¶ 26). The 1983 CBA required merchandise royalty payments (Ex. 2B). The "standard" 12(a) contract provision gives Plaintiffs rights as to endorsements. (Ex. 3F; and Ex. 1L, Rivers Tr. 39, 40 explaining the contracts and the CBA). Rivers called FUBU but they never returned his calls--he "wanted to get paid." (Id. at 98). DSOF 89: HGI ceased payments to players because when suit was filed FUBU stopped payments. FUBU only made one payment to Plaintiffs immediately after the threat of a lawsuit. (See Ex. 9 A and B--payment of October 31, 2003, and Ex. 9D). HGI had received its first royalties in 2002 and received millions but only gave the Plaintiffs one payment and one accounting. SOF 97: Expert Abalos offered no opinion as to a reasonable royalty. Plaintiffs' Expert report is irrelevant to these assertions. Plaintiffs' expert's calculations of alleged damages are not a basis for Summary Judgment. (See Plaintiffs' discussion of the

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records thereby incurring the risk of gross profits being a measure of damages). While this is irrelevant to the Summary Judgment, Plaintiffs assert that there is ample evidence for a 25% royalty rate. HGI paid Plaintiffs Neal and Haynes a 25% royalty on the bobble head doll merchandise. Mannie Jackson testified that he personally agreed to 25%. (Exhibit 1A, Jackson Tr. 176). Additionally, the Collective Bargaining Agreement defines a royalty rate of 25% (Exhibits 2A and B, CBA Article 14.12). Neal's last contract defines a 25% royalty as a

7 8 9 10 11 12 13 14 15 16 17 104) 18 19 20 21 22 been notified", (Ex. 1S, Hall Tr. P. 52)). (Rivers: "jerseys were ugliest things I have ever seen 23 24 25 26 27 28 in my life"... "horrible" and "had a silver `Gator' on the back," "embarrassed" that he gave 10, 11, 12 years, helped promote the company name him as a legend, and "don't even contact me", "Jersey was just horrid" (Id. at 95) (Exhibit 1L,Rivers Tr. 55, 56). Thornton SOF 103: Plaintiffs have not suffered any damages but seek HGI's and FUBU's profits. Profits earned by exploiting Plaintiffs are the damages. Plaintiffs here embarrassed about the FUBU deal and some products like some female garments and dresses (Neal: "it was offsetting"). (Exhibit 1K, Neal Tr. 132, 139) (Hall: "I was upset because I felt I should have 103) minimum. (Exhibit 3A, Neal Contract). SOF 102: Plaintiffs do not know whether 8% is a reasonable royalty. But Plaintiffs knew that a minimum should be the 25% in the collective bargaining agreement. (PSOF ¶ 68). Neal had his 25% minimum already in his contract. (Ex. 1A). Neal and Haynes already received 25% royalty for the bobblehead doll program (Ex. 1A, Jackson Tr. 176; Ex. 48). Hall didn't even cash his check as after 30 years he "finally gets a $400.00 check" (Ex. 1S, Hall Tr. 31-32). Thornton, former union president, testified his

understanding of endorsement was 25%. (Exhibit 1R, Thornton Tr.68). Jordache paid a 17% royalty rate. (Exhibit 1A, Jackson Tr.268-269; Exhibit 54, Jordache Agreement).

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was "embarrassed". (Ex. 1R, Thornton Tr. 85). Mannie Jackson stated he never asked Plaintiffs before putting their names on ladies dresses. (Exhibit 1A, Jackson Tr.264-265). SOF 110: When Haynes received $50,000 he "did not understand the arrangement to exclude merchandise" (citing to his deposition and implying that his services to HGI's included licensing). This implication is patently false. Hayes is clear that that "services" did not include endorsing articles of merchandise nor had anything to do with FUBU merchandise (Exhibit 1Q, Haynes Tr. 108, 110), but only for appearances and for helping the team on their 50th anniversary of defeating the Lakers in 1948 because every newspaper in the country was calling Haynes (Exhibit 1Q, Haynes Tr. 33), and Jackson wanted the publicity for HGI and Haynes was the only one still around that played extensively in that game (Exhibit 1Q, Haynes Tr. 109). Neither HGI nor Jackson has demanded the money back or asserted Haynes did not perform. DSOF 111: Haynes has not been asked to endorse any product or services since he left the Globetrotters. This is patently false. Haynes has made and continues to make appearances (Exhibit 1Q, Haynes Tr. 13) and was paid to play in The Bucketeers after he left the Globetrotters (Exhibit 1Q, Haynes Tr. 14). Also, recently Haynes has received contract offers for movies from Columbia and B.V. Theatrical Ventures (Exhibit 66). Haynes was even paid by HGI to

20 21 22 23 24 25 26 27 28 107) endorse the Bobblehead dolls in March 2004 a program that started in 2001 (after Plaintiffs filed suit). (Ex. 48). Haynes is still a basketball celebrity and is in great demand for

appearances, charitable events. (Exhibit 1Q, Haynes Tr. 13). HGI never asked Haynes to cease using his name and likeness. (Exhibit 1Q, Haynes Tr. 11). DSOF 114: Hall has not been asked to endorse any product or services since he left the Globetrotters.

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Hall receives inquiries and fan mail every few weeks at HGI's offices the exact facts of which were not disclosed by HGI. (Ex. 1D, Vaughn Tr. 28; Ex. 1S, Hall Tr. 68-69; Ex. 46D, Hall Profile; Ex. 36, Hall Aff. ¶ 9). Also, HGI's Vaughn asked Hall to make public appearances fro HGI (Id. At 64). See 46 above. DSOF 133: Neal considers Jackson a friend and it may not be Jackson's fault. This is a patent misrepresentation of Neal's testimony. Neal said "I thought I was", but

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 112) 111) 110) This is a patent misrepresentation of Thornton's testimony. He endorsed Juvenile Diabetes. (Ex. 1R, Thornton Tr. 106). (See also Ex. 46C, Thornton Profile). DSOF 136: Thornton doesn't believe Jackson is out to hurt him. Thornton testified that he has been injured by not being compensated for the use of his name to make money. (Ex. 1R, Thornton Tr. P. 119) DSOF 137: Rivers has not been asked to endorse any product or services since he left the Globetrotters. This is a patent misrepresentation of River's testimony, and HGI admits that it even copromoted a basketball event endorsed by Rivers. (HGI DSOF ¶ 140). (See Ex. 1L, Rivers Tr. 12-- Kellogg's Corn Flakes), and does 10-15 paid appearances a year. (Id. at 81). (See also Rivers Profile, Ex. 46B). DSOF 141: Rivers has been told to cease using "other Globetrotter trademarks" in his appearances (River's Deposition at 73-75, Ex. 17). Rivers has used his name and number without ever being told to stop. (PSOF ¶ 72). He was only once told to stop appearing in, and to return, a Globetrotter uniform in a shameful 109) "Mannie never returned my call." (Exhibit 1K, Neal Tr. 72, 135, line 10). Hall (a "legend") hasn't talked to Mannie Jackson since the 1960's. (Ex. 1S, Hall Tr. 60). (See also PSOF ¶ 67). DSOF 134: Thornton has not been asked to endorse any product or services since he left the Globetrotters.

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letter by the Globetrotter's attorney (Letter "23"), but later told by President Joe Anzivino to keep it. (Ex. 1R, Rivers Tr. 74). DSOF143: Sanders hasn't licensed his name on likeness and "wouldn't ask for it" unless he "got permission" from the Globetrotters. Sanders endorsed the Special Olympics that used his name on tee shirts. Sanders is clear that he did ask permission only to use the Globetrotters marks in conjunction with his name after he left the Globetrotters and permission was granted (Ex. 1T, Sanders Tr. 89-90). He didn't need permission to use his own name and has never received a cease and desist letter from the Globetrotters. (Ex. 1T, Sanders Tr. 89-90). DSOF 148: Plaintiffs have produced no evidence that their names are strong marks or that their names are recognized among purchasers. This is patently false. The strongest evidence comes from HGI and FUBU, who made the decisions that Plaintiffs' famous names were strong marketing devices. For example, Neal was called "one of the most popular and most recognizable sports personalities in the world" in a Harlem Globetrotter press release (Ex. 44), and his face recently appeared on a giant billboard for the TV show "Biography" (Ex. 44) in New York City. (See also Exhibits 46A, B, C, D, E, and F Plaintiffs' Profiles). Hall still gets a "lot of fan mail" and the

18 19 20 21 22 23 24 25 26 27 28 Plaintiffs testified about personal experience with consumer confusion. (See Exhibit 1S, Hall Tr. 62)--nephew and niece bought garments with his name and the "cards on it", even clothes with no name; Hall saw clothes at value City, T.J. Max and Marshall's (Id. at 65-66); (See also Ex. 1T, Sanders Tr. 123)--best-friend's daughter, and (Ex. 1L, Rivers Tr. 67)--as 115) Globtrotters forward it to him. (Ex. 1 S, Hall Tr. 68, 69). Rivers played for years with the Harlem Ambassadors, Basketball Magic and Shooting Stars, and he endorsed Kellogg's Corn Flakes and Kodak. (Ex. 1L, Rivers Tr. 12). (See also Exhibits 44, 45, 46, 66, 67 and 68). DSOF 149: Plaintiffs have no evidence of actual confusion leading consumers to believe Plaintiffs approved the apparel.

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many as 50, at basketball player camps, etc. (In addition, Ex. 32 Rivers Aff. ¶¶10-15; Ex. 33 Thornton Aff. ¶¶10-13; Ex. 34 Sanders Aff. ¶¶10-13; Ex. 35 Neal Aff. ¶¶10-13; Ex. 36 Hall Aff. ¶¶10-13; and Ex.37 Haynes Aff. ¶¶10-12). DSOF 150: Plaintiffs have no evidence showing consumers believed Plaintiffs endorsed the apparel. Plaintiffs testified as to this personal experience with consumer confusion as to their endorsing the FUBU clothes (Ex. 1S, Hall Tr. 35) and PSOF ¶ 115 . DSOF 151: Plaintiffs have no survey evidence of confusion. HGI'S and FUBU's decision to place Plaintiffs' names, numbers, and likenesses on FUBU apparel and on hangtags to induce purchases. (Exhibits 12 and 13A). The burden is now shifted to HGI to show that there is no evidence that the decision that HGI made to exploit

12 13 14 15 16 17 This assertion is patently false. FUBU'S Weisfeld testified that "all hangtags are marketing 18 19 20 21 22 23 24 25 26 27 hangtags served no other purpose but to market the garments. (Exhibit 1F, Weisfeld). 28 tools" when being questioned about the hangtags bearing Plaintiffs' names. (Exhibit 1F, Weisfeld Tr.59). FUBU designed two types of hangtags bearing Plaintiffs' marks (Exhibit 12). These hangtags appear on numerous garments identified by Plaintiffs during their investigation. (Exhibit 13A, Phipps Affidavit, Schedule of Merchandise). Some CADs (Computer Assisted Drawings) provided by FUBU show hangtags attached to the garments (Exhibit 24, FUBU CADS), and the hangtag also appears as an emblem on the garment. (Exhibit 13A, Items 12, 16, 21, 65, 87, 91, 98, 99, 107). FUBU's executives testified that they designed hangtags to include Plaintiffs' names, nicknames, and numbers and that the 118) Plaintiffs either induced, or was likely to induce, consumers to buy HGI and FUBU's product. (See Exhibit 13A, and Plaintiffs' discussion of this legal issue in Plaintiffs' Memorandum). DSOF 152: Plaintiffs have no evidence their names were used to advertise the apparel, or that Plaintiffs information provoked an advantage.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 120) 119)

Plaintiffs names, nicknames, and numbers, were used on the infringing apparel (Ex. 13(A)). FUBU executives testified that hangtags were "not a price tag", but marketing tools whereby the Globetrotters wanted to give consumers a "history lesson" or a "piece of the history". (Ex. 1G, Blenden Tr. 122-125). DSOF 153: Plaintiffs have no evidence that HGI intended to profit by "confusing consumers" (meaning profit derived from associating Plaintiffs' names with their products). HGI's intent to profit is laid out in the licensing agreement (Ex. 6) and Jackson's crowing about a $100 million dollar deal and his specific reference to Plaintiffs in touting the transaction (Ex. 7). DSOF 154: Plaintiffs have no evidence of HGI's "willful" intent. The intent to use Plaintiffs' names is clear. HGI had the right to approve all designs (Ex. 6, Licensing Agreement), and Jackson personally approved them. (Ex. 1A, Jackson Tr. 250-251). HGI recklessly disregarded Plaintiffs rights sufficiently to constitute willfulness. There was not one due diligence effort made by HGI to seek Plaintiffs' permission (PSOF ¶¶7, 8, 11, 13, 14, 15, 16, 17, 18, 19, 60, 64, 65, and 67). Jackson never called any Plaintiff. (PSOF ¶18). HGI had no signed authority from any Plaintiff. (PSOF ¶6).

18 19 20 21 22 23 24 25 26 27 28 HGI and FUBU (highly sophisticated Manhattan garment lawyers) made no effort to ascertain the true right to Plaintiffs. FUBU'S financial partner is the international business giant Samsung America. (Exhibit 1F, Weisfeld Tr.51). Weisfeld testified that no contracts were available due to the bankruptcy (Exhibit 1F, Weisfeld Tr.68). Weisfeld testified that he never saw any contracts. (Id.) The Licensing Agreement is clear that SOME former players were excluded (i.e. Wilt Chamberlain and Magic Johnson) (Exhibit 6). Weisfeld is a lawyer. (Id at 62). Jackson said "there was a lack of interest in looking at six hundred (600) plus contracts stuffed away someplace." (Exhibit 1A, Jackson Tr.262).

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Intent can be both actual and constructive. Considering all the circumstances, HGI's and FUBU's reckless disregard of Plaintiffs' right have failure to do any due diligence and constitutes willful infringement.

DATED this 9th 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 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

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1 2 3 4 5 6 7 8 9 10 11 Vanessa Braeley, declares as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. I hereby certify that on December _9th_, 2005, a true and correct copy of the Plaintiffs' Statement of Facts 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 _9th__, 2005, a true and correct copy of Plaintiffs' Statement of Facts postage paid thereon, was sent via U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon C