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 ADDITIONAL STATEMENT OF FACTS 15 New York limited liability company doing business in Arizona; 16 Defendants. 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 Pursuant to District Court of Arizona LRCiv 56.1(b), PLAINTIFFS FRED "CURLY" NEAL; 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Counter-defendant.

PLAINTIFF'S REPLY TO DEFENDANT HGI'S ADDITIONAL STATEMENT OF FACTS

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, submit the following Reply to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. and Catherine Jackson's (hereinafter collectively "HGI") Additional Statement of Facts (Doc.#266) (hereinafter referred to in brief as "PRASOF").

1)

DASOF ¶1:

The Globetrotters' 1975 program demonstrates the use of Plaintiff Lemon's name, in

cartoons, television programs, posters, and on the uniform Plaintiff wore as a player. (Syracuse Aff., 17, Exhibit D at 1091, 1093, 1097, 1099-1105, 1112, 1117, 1119 [Doc.#208]). Relates to Lemon. Neal Plaintiffs do not respond.

2)

DASOF ¶2:

Nothing in the record suggests GTFM ever would have entered into an agreement

with Plaintiff Lemon alone, or if it did, that Lemon would have been compensated. (Garvey AIL, ll/22/05,1f4.) Relates to Lemon. Neal Plaintiffs do not respond.

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3)

DASOF ¶3:

The only statements Plaintiff Lemon has claimed were defamatory were comments

Mannie Jackson made to the Arizona Republic. (Garvey Aff, 11/22/05, H 5 & Ex. A, B.) Relates to Lemon. Neal Plaintiffs do not respond.

4)

DASOF ¶4:

It appears that Plaintiff Lemon has ceased the sale of red, white, and blue basketballs

containing an imitation of the Globetrotters' trademarked HAND AND BALL logo. All links on his 7 8 9 10 11 12 13 14 15 16 17 Disputed in part. UBPA may have continued to function past the mid 1980's. HGI 18 19 20 21 22 23 24 25 26 27 28
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website to basketball sales are "dead." See http://www.meadowlarklemon.com/merchandise.html (last visited Nov, 20, 2005). (Garvey Aff., 11/22/05, 1(6)) Relates to Lemon. Neal Plaintiffs do not respond.

5)

DASOF ¶5:

The United Basketball Players Association ("the UBPA" or "the union") represented

Globetrotters players for a period in the late 1970s through the mid-1980s, when collective bargaining broke down among the players. (Thornton Dep. at 31, 99). The union's major achievements were getting the players a per diem and better salary. (Thornton Dep. at 37; Lemon Dep. at 238.)

employee/coach Dunbar does not know if the union was ever formally terminated as "we didn't do anything to disband it". (Exhibit 1M, Dunbar Tr. 44-45; PSOF ¶2).

6)

DASOF ¶6:

The union negotiated different things than were contained in the player contracts.

(Thornton Dep. at 38). As Plaintiff Thornton, onetime union president (id. at 78) put it: Q: "This is just additional benefits, without limiting the rights to either side of the individual contract." A: "Yes, I think that's correct." (Thornton Dep. at 38.)

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In other words, any collective bargaining agreement the players may have had did not prohibit or restrict the Globetrotters when it negotiated individual contracts. (Id at 93). Disputed in part. The union negotiated "different things" but additional things that superceded terms in players' contracts. The CBA is clear that the terms therein are "minima" (Exhibit 2B, Article II, Section 2.1; PSOF ¶68; PSOF ¶75D); that is, merchandise rights to 25% royalties in Article 14.12 supercede individual player

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contract terms of lesser benefits.

7)

DASOF ¶7:

In fact, the 1983 Collective Bargaining Agreement--the last known contract

(Thornton Dep. at 117)--contains an attachment that specifically incorporated the publicity and licensing paragraph of the standard player contract signed by all Plaintiffs, which at that time was located in paragraph 12(a), into the collective bargaining agreement. (Thornton Dep. at 86-87, 91, Ex. 11 at 1126, 1163, Ex 8U 12(a)). Disputed. The 1983 Collective Bargaining Agreement Index Exhibit 2(B) (Bates pg 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. (Exhibit 1R, Thornton Tr. 90, 118). See also PRRNSOF ¶2. (Doc.#310, for detailed analysis).

8)

DASOF ¶8:

The players' union did not exist at the time Mannie Jackson & Associates purchased

the Globetrotters in 1993, and MJA did not assume or even know of any union-related liabilities at that time. No players' union has formed since then. (Jackson Aff., 11/22/05,1(3.) Disputed as wholly false and unsupported by deposition or affidavit or any other information on the record as required by Fed.R.Civ.P. 56 and L.R.Civ 56.1(a).

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Jackson simply stated that he was aware of the CBA from the media in the 1970's, and that it did not exist when he bought the team in 1993. (Exhibit 1A, Jackson Tr.108, 277). Bankruptcy court documents specifically reference "union contracts" and "collective bargaining agreements" that must be dealt with in compliance with 11 U.S.C.A. 1113. (Exhibit 72B, P.14, Article V(A) Debtors Reorganization Plan). More importantly, the relevance of the union is its existence during the time

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Plaintiffs were employed and contracts were signed - NOT when Jackson bought the team. The Collective Bargaining Agreement is a component of Plaintiffs contracts and evidence of the intent of the parties at the time they contracted.

9)

DASAF ¶9:

International Broadcasting Corporation, Inc. ("Old IBC) owned the Harlem

Globetrotters in the early 1990s, along with other entertainment-related entities such as the Ice Capades. (Nickolis Dep. at 8, 22.) Undisputed.

DASAF ¶10: Old IBC declared Chapter XI Bankruptcy in the early 1990s, and National Westminster Bank USA ("NatWest"), which had lent money to the company, foreclosed on IBC's assets. (Nickolis Dep. at 8-9.) Undisputed.

11)

DASAF ¶11: Theodore Nickolis was an employee of NatWest at the time of the bankruptcy and handled the reorganization process for NatWest. (Nickolis Dep. at 8-9.) Paul Horton was also employed by NatWest and was involved in the proceedings related to the Harlem Globetrotters. (Horton Dep. at 8-9.) Undisputed.

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12)

DASAF ¶12: IBC eventually became a subsidiary of NatWest ("New IBC"). (Horton Dep. at 10.) It reorganized in bankruptcy, rejecting certain contracts, including any collective bargaining agreements. (Nickolis Dep. at 50-51, Ex 5, Debtors' Amended Joint Plan of Reorganization at 14.) Disputed in part. HGI's assertion is unsupported by deposition or affidavit or any HGI

misrepresents Nikolis' testimony. Nikolis did not testify that Collective Bargaining Agreements were rejected in bankruptcy at all. (Exhibit 1H, Nikolis Tr. 50-51) and Nikolis recalls nothing at all about the union. (Id. at 32). Additionally, the document referenced by HGI, Debtor's Amended Joint Plan of Reorganization states that executory contracts not specifically scheduled are rejected, but acknowledges that Collective Bargaining Agreements cannot be rejected without compliance with 11 U.S.C.A. 1113, which recognizes notice and hearings.

DASAF ¶13: While under NatWest's control, New IBC formed Harlem Globetrotters Inc. ("HG") as a subsidiary (id at 11). HG was formed to accept the Harlem Globetrotters-related assets of IBC in order to sell off those assets and protect the bank from any liabilities arising from the operation of a company. (Nickolis Dep, at 11, 26-28, & Ex. 1 at 1323; Horton Dep. at 18.) Undisputed.

14)

DASAF ¶14: HG received all of IBC's assets that constituted the Harlem Globetrotters and sold all of those assets. (Nickolis Dep. at 38-40.) Undisputed as to Nikolis statement that that was the intent. Disputed as to whether all of those assets" included Plaintiffs' contracts. Specific schedules listing assets failed to mention Plaintiffs' contracts or names. (Exhibit 1H, Nickolis Tr. 18, Exhibit

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1I Horton Tr. 66). HGI concedes Plaintiffs are not listed on any asset schedules. (HGI RNSOF ¶5, Doc#266).

DASAF ¶15: PIG did so both to maximize the price NatWest could receive and to protect it from liability associated with retaining any assets. (Nickolis Dep. at 29.) Disputed. See ¶14, supra.

7 8 9 10 11 12 13 14 15 16 Property; Exhibit 5C, P.1233, Intellectual Property and P.1196, Players' Contracts; 17 18 19 20 21 22 23 24 25 26 27 28
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16)

DASAF ¶16: NatWest did not delineate each and every asset; as Mr. Nickolis testified, "whatever we find or whatever we have we transfer." (Nickolis Dep. at 30.) Disputed in part. The schedules delineated thousands of assets on detailed

schedules down to the desks and chairs, contracts and trademarks. (Exhibit 5A-D; Exhibit 1H, Nikolis Tr. 35; Exhibit 1I, Horton Tr. 65). Specific schedules on

numerous drafts for player contracts and trademarks were prepared and did not list Plaintiffs. (Exhibit 5A, P.1308, Player Contracts; Exhibit 5B, P.1290, Intellectual

Exhibit 5D, P.1385, 2.1(F), Intellectual Property; P.1386, 2.1(I), Player Contracts.).

17)

DASAF ¶ 17: NatWest made no attempt to sell the Harlem Globetrotters piecemeal: it was sold as a cohesive unit. (Nickolis Dep. at 33.) Undisputed as to Nikolis' statement. Disputed as to the extent contracts were both rejected and accepted during the bankruptcy actions. (Exhibit 72 G,H,I).

18)

DASAF ¶18: No former Globetrotters players objected to the bankruptcy reorganization plan or purchase of the Globetrotters. (Nickolis Dep. at 24; Horton Dep. at 53.)

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Undisputed as to the testimony of Nikolis and Horton. Some Plaintiffs said they were unaware of the procedure. (Exhibit 1R, Thornton Tr.__). 11 U.S.C.A. §1113 requires notice (b)(1)(A), and hearings (d)(1). HGI has produced no evidence of such.

DASAF ¶19: No union was involved in the bankruptcy and sale process related to the Harlem Globetrotters team on behalf of the players, and no hearings were held with respect to a union contract or the rights of the union. (Nickolis Dep. at 32; Horton Dep. at Disputed to the extent that mischaracterizes Nikolis' and Horton's testimony. They did not testify that "the union was not involved" only that they were not aware of union involvement. See 12 Supra. If the bankruptcy case ensued without compliance with 11 U.S.C.A. §1113, then any purported rejection of a Collective Bargaining Agreement would be a legal nullity.

DSAF ¶20:

Mannie Jackson & Associates ("MJA") and his company, Harlem Globetrotters

International, Inc. ("HGI") bought the Globetrotters from New IBC in 1993. (Nickolis Dep. At 11, 18 19 20 21 22 23 24 25 26 27 Plaintiffs' contracts were never even discussed as being assets. (Exhibit 1I, Horton 28
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19-20 & Ex. 1.) Undisputed. MJA and HGI are "his" companies (Mannie Jackson's).

21)

DSAF ¶ 21:

MJA and HGI received all the assets of HG, and held by NatWest, in purchasing the

company. (Horton Dep. at 54, 57.) Disputed to the extent that "all the assets of HG" would have included any rights to Plaintiffs' names and likenesses. "All the assets of HG" were inventoried and

scheduled on the asset purchase documents, none of which list Plaintiffs' names.

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Tr.66). This is the second area of failure to conduct reasonable good faith due diligence. If Jackson (MJA) purported to buy the Plaintiffs' player contracts he should have expressly done so and contacted Plaintiffs as well to inquire into the status of their agreements. Horton and Nikolis testified that Plaintiffs' names and contracts never even came up during the many months of negotiation, (Exhibit 1I, Horton Tr.66), and HGI does not disputed this facts. (HGI RNSOF ¶7).

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Additionally, Jackson has testified that his plan was to grow the brand and he had little interest in individual players. Mannie Jackson emphasized that he was getting away from a "star system" and to emphasize the entire team. (Exhibit 1A, Jackson Tr. 278)

22)

DSAF ¶22: 65, 66.)

NatWest's intent was to sell MJA all the assets of the company. (Horton Dep. at 62,

Is undisputed that Horton gave testimony (as to his intent) that NatWest sold all the assets of the company. Horton, however, could not say whether players' contracts were one of the assets of the company. Horton testified that the subject of the Plaintiffs' player contracts never even came up. (Exhibit 1I, Horton Tr. 66). It is undisputed that Plaintiffs' names or contracts are not mentioned once in any of the documents or schedules pertaining to the assets purchase transaction. (HGI RNSOF 5). The only evidence of that intent to sell "all of the assets of NatWest" is a footnote referring to intangible assets solely for the purpose of allocating sale price. (Exhibit 5D, P.1387). It is disputed that Jackson wanted to acquire all the assets of HG or NatWest. Jackson via MJA actually participated in the bankruptcy proceedings and cherry picked what agreements he wanted to accept and reject. (Exhibit 72 I). This is documented by a series of bankruptcy court motions and orders approving MJA's rejection of certain

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executory contracts, including the several licensing agreements for apparel and games. (Exhibit 72A, B and F).

)

DSAF ¶23:

One of the assets sold to MJA was "intangible assets," which was defined to include,

inter alia, "licensing rights and contracts," "television rights and contracts," "player rights and contracts," "trademarks," "tradenames," "service rights and contracts," "licensing agreements," and "memorabilia, films, awards, photographs, trophies, promotional material, files, books and records, the going-concern and goodwill, etc." (Nikolis Dep. at 11, 17 & Ex. 1, o at 1325, 1387; Horton Dep. at 56-57.) "Intangible assets" made up the largest portion of the $6 million purchase price, at $5,688,240.39. (Id at 11 & Ex. 1 at 1387.) Disputed to the extent that the definition of "intangible assets" in the asset purchase agreement includes or references Plaintiffs' contracts on detailed schedules of the components listed by HGI in their DASAF 23. (Exhibit 5D, P.1387). "Intangible assets" on the allocation of purchase price schedule references scheduled trademarks. The "licensing rights and contracts" and the "trademarks" referenced expressly defines as "Assets to be Transferred" (Exhibit 5D, P.1325) on schedules to the Asset Purchase Agreement: Schedule 2.1(F) Intellectual Property Rights, P.1368; Schedule 2.1(H) Players' Contracts, P.1386.

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24)

DSAF ¶24:

Another asset sold to MJA was "books and records." (Nikolis Dep. at 11 & Ex. 1 at

1325, 1374.) These included "player's contracts" and "union de-certification." (Id. at 1377.) Disputed to the extent that "books and records" included Plaintiffs' contracts as assets per se, as opposed to just papers, (i.e. there may have been other old, expired or void stock certificates that have no value). The "players' contracts" in the context of "books and records" may have included physical pieces of paper (i.e. Hall's contract

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from 1940s) but there is no evidence presented by HGI as to this, and if there were any rights accruing to MJA from any of these papers they would have been listed on the schedules of executory contracts.

DSAF ¶25:

"Contracts" is defined in the asset purchase agreement to mean "all contracts,

agreements, indentures, licenses, leases, commitments, plans, arrangements, sales orders and 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 former players' names and likenesses for commercial and promotional purposes through the asset 28
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purchase orders of every kind." (Nikolis Dep. at 11, Ex. 1 at 1323.) Disputed. "Contracts" is further defined by the attached schedule to the Asset Purchase Agreement. (Exhibit 5D, P.1386).

5.

26)

DASAF ¶26:

All contracts held by IBC were transferred to NatWest in the takeover of assets by

the bank, and in turn all contracts were transferred from NatWest to MJA via the asset purchase agreement. (Horton Dep. at 58.) Disputed and false. Bankruptcy records are clear that "all contracts" were NOT transferred. Many were rejected by the Debtor and MJA. (Exhibit 72A-I).

27)

DSAF ¶27: The list of players on Schedule 2.1(1) of the contract was a list of active Globetrotter players and coaches in 1993. (Nikolis Dep. at 11, Ex. 1 at 1386; Jackson Aff, 11/22/05,1(4.) Disputed. This is a misrepresentation of Nikolis' testimony. There is no testimony as to this assertion on the cited p. 11. In fact, Nikolis had no idea how many or which players were under contract at that time, only that the eleven that are specifically mentioned on the schedule 2.1 (I) 7. (Exhibit 1H, Nikolis Tr.34).

28)

DASAF ¶28: Mannie Jackson understood that HGI and MJA would be receiving the rights to use

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purchase agreement. In fact, prior to purchasing the team, Mr. Jackson had identified untapped licensing revenue as a potential growth area, telling investors: Licensing revenues have exploded throughout the sports world . . . Unlike a member of the NBA, the ABL or NHL, the Harlem Globetrotters have a significant advantage in that they: 1) may be the best known sports and entertainment franchise in the world; and 2) that licensing revenues accrue to the company, not the individual players. (M. Jackson Aff, 11/22/05, 1 5 & Ex. A at 1535.) Jackson's statement to investors referenced in his Affidavit of 11/22/05 that the licensing revenues "accrued to the company and not the individual players" was a misrepresentation to investors considering that this is not true in regard to Plaintiffs' contracts, as Jackson had done no due diligence to confirm this. (Exhibit 79, P.1535). (I.e. Haynes' contract was non-assignable, Neal's contract was subject to minimum royalty commissions of 25%, the remaining Plaintiffs' contracts were governed by the terms of the Collective Bargaining Agreement entered into with the predecessor entities to Jackson's HGI). (PSOF¶75, 80). Jackson also warns investors in the

disclaimer located in the Private Placement Memorandum that certain trademarks could be legally challenged ­ a statement that should have heightened Jackson's

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concern. (Exhibit 79, P.13). Additionally, Jackson's statement that these rights are "unlike a member of the NBA, ABL or NHL" is a sad illustration of unconscionability. No NBA player would ever agree to such abusive and shameful servitude.

29)

DASAF ¶29: Plaintiffs' individual player contracts provided Plaintiffs would receive a salary (generally, between $80-$ 100,000 annually depending on the player and the year) and other benefits, including per diem, travel expenses, advances, medical care for work-related injuries, and publicizing and advertising of the player. (Thornton Dep. at 27, Ex. 8 H 3, 4, 9, Doc 201; Rivers Dep. at 46, Ex. 12 H 3, 4, 9, Doc 201; Hall Dep. at 28-29, Ex. 16H 3, 4, 6, 9, Doc 198; Sanders Dep. at 53, Ex. 23

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13, 8, Doc 198; Lemon Dep. at 115, Ex. 7 H 3, 10, 12, Doc 199; Neat Dep. at 42, Ex. 37 H 3, 4, 5, 9, Doc 199; Haynes Dep. at 22-23, Ex. 22 fl 3, 10, 12, Doc 196.) Disputed to the extent that suggests that the salary was for anything but the performance by Plaintiffs as players. The contracts are clear that the consideration is only for their services as a player and not for their names and likenesses and perpetuity being granted to HGI. (PSOF ¶23).

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30)

DASAF ¶ 30: Plaintiffs' player contracts contained a covenant not to compete provision, which had duration of one to two years after the contract expired. (Thornton Dep. at 27, Ex. 8 1 13, Doc 201; Rivers Dep. at 46, Ex. 12 1 13, Doc 201; Hall Dep. at 28-29, Ex 16 1 13, Doc 198; Sanders Dep. at 53, Ex. 23 1 13, Doc 198; Lemon Dep. at 115, Ex. 7 1 16, Doc 199; Neal Dep. at 42, Ex. 37 1 13, Doc 199; Haynes Dep. at 22-23, Ex. 22, 1 16, Doc 196.) Undisputed with the qualification that a purported grant of rights to name and likeness in perpetuity forecloses employment opportunities as well.

DASAF ¶31: The player contracts did not ask Plaintiffs to cease using their names and likenesses in perpetuity, but only required Plaintiffs to obtain the Globetrotters' consent of any independent media interviews or product endorsements during the term of the player contracts. The contracts further provided that such consent would not be unreasonably withheld. (Thornton Dep. at 27, Ex. 8 1 12(c), Doc 201; Rivers Dep. at 46, Ex. 12 1 12(c), Doc 201; Hall Dep. at 28-29, Ex. 16, % 12, Doc 198; Sanders Dep. at 53, Ex. 23 K 12(b), Doc 198; Neal Dep. At 42, Ex. 37 1| 12(c), Doc 199.) Plaintiff Lemon's and Haynes' contracts provided that prior written consent would not be required unless Plaintiffs intended to mention the Globetrotters or wear the Globetrotters uniform in outside appearances. (Haynes Dep. at 22-23, Ex. 22, 16, Doc 196; Lemon Dep. at 115 Ex. 7 H 15(b), Doc

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Disputed. HGI asserts that the contracts granted HGI's predecessors the exclusive use of their names and likenesses for any purpose and perpetuity, which is disputed. (PSOF¶75, 74, 80-86).

DASAF ¶32: No pension plan is mentioned in the player contracts. (Thornton Dep. at 27, Ex. § Doc 201; Rivers Dep. at 46, Ex. 12, Doc 201; Hall Dep. at 28-29, Ex. 16, Doc 198; Sanders Dep. at

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53, Ex. 23, Doc 198; Neal Dep. at 42, Ex. 37, Doc 199.) At best, Plaintiff Sanders' contract states that players and their spouses may be eligible to participate in a defined contribution retirement plan "promising no fixed level of benefits." (Sanders Dep. 53, Ex. 23H 3(e), Doc 198.). It is undisputed that a pension plan existed for Harlem Globetrotter players (Exhibit 2A and 71(2)). Plaintiff Hall still receives his pension. (Exhibit 1S, Hall Tr.16). Plaintiff Sanders' contract specifically refers to the CBA. (Exhibit 14, and Sanders Deposition at ¶3). Vaughn says that pension inquiries have been directed to Mannie Jackson (Vaughn Tr. 50). HGI's predecessor references the pension plan in a letter to Rivers. (Exhibit 10). Jackson rejected pension funding obligations in the Asset

documents.

(Exhibits 5A-C), Such is an act of rejection of provisions of the

Collective Bargaining Agreement in violation of 11 U.S.C.A. §1113(f).

RESPECTFULLY SUBMITTED this _9th__ day of December, 2005.

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

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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 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 Certificate of Service

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Vanessa Braeley, declares as follows: 1. I hereby certify that on December__9th_, 2005, a true and correct copy of the Plaintiffs' Reply 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' Reply 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 Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703
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Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Ray Harris, Esq. FENNEMORE CRAIG, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 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 __9th__, 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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