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 PLAINTIFF NEAL'S 15 New York limited liability company doing business in STATEMENT OF FACTS (DOC # 266) 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 9 10 11 12 13 14 15 16 PLAINTIFFS' REPLY TO DEFENDANTS HGI'S GENERAL OBJECTIONS ("PRGO") 17 18 19 20 21 22 23 24 25 26 Haynes authenticated the 1977 CBA in the Haynes Affidavit (Exhibit 37, ¶19) and again with an 27 28 additional Affidavit attached hereto as (Exhibit 71A[1-3]). A prior CBA (9/1/74 ­ 8/11/77)
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Counter-defendant.

PLAINTIFFS' REPLY TO HGI DEFENDANTS' RESPONSE TO PLAINTIFF NEAL'S STATEMENT OF FACTS
Pursuant to District Court of Arizona LRCiv 56.1, 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, submit the following Reply to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. and Catherine Jackson's (hereinafter collectively "HGI") Response to Plaintiffs Statement of Facts (Doc. 266) (hereinafter referred to in brief as "PRGO" and "PRRNSOF").

HGI, in their General Objections, lists "unauthenticated documents" and "any facts relying thereon." Many of these "objectionable" documents were introduced by HGI as evidence at depositions, where they were authenticated under HGI's examination. Additionally, counsel for Plaintiffs has submitted a Declaration in Support of Plaintiffs' Response to HGI'S Motion for Summary Judgment as to Plaintiffs' Exhibits. (Townsend Decl., Document #273). The allegedly unauthenticated documents are addressed individually. 1. Exhibit 2A: Collective Bargaining Agreement from 1997 [sic]. Plaintiff's Exhibit 2A is a 1977 CBA, with Pension Plan and Wide World of Sports Supplement.

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documented and authenticated during inquiry by HGI's Ed Garvey at a deposition called by HGI of Plaintiff, Marques Haynes, who identified the document as Exhibit 23 as well as his signature. (See Exhibit 23 Haynes Tr. 26). The 1974 CBA was signed by Haynes and Stan Greeson. Exhibit 2B: Collective Bargaining Agreement from 1984. The document is actually a 1983 CBA signed by Plaintiff Thornton and authenticated by Thornton during his deposition conducted by HGI attorney Garvey as Exhibit 11. Thornton identified his

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signature as well as that of Art Harvey, president of the Globetrotters at that time. (See Exhibit 1R, Thornton Tr. 86). Thornton confirmed Art Harvey's signing the CBA in his Affidavit (Exhibit 33 ¶21). Thornton has signed an additional Affidavit as to the 1983 CBA attached hereto as Exhibit 73A. 3. Exhibit 3A: Curly Neal's Player Contract. Plaintiff Neal authenticated this document and his signature as Exhibit 54 at his deposition conducted by HGI'S Garvey. (See Exhibit 1K, Neal Tr. 148-149). Plaintiffs note that this contract is clear that it supersedes all prior contracts between Neal and the Harlem Globetrotters. (Exhibit 3A ¶16). HGI produced the contract as Exhibit 54 to Neal's deposition (Exhibit 74). Exhibit 3B: Marques Haynes' Player Contract. Plaintiff Haynes authenticated this document as Exhibit 22 at his deposition conducted by HGI'S Garvey, and Haynes authenticated his own signature. (See Exhibit 1Q, Haynes Tr. 22-23). HGI produced the contract. Haynes further authenticates this document with his Affidavit attached hereto. (Exhibit 71B). 5. Exhibit 3C: Showboat Hall's Player Contract. Plaintiff Hall identified and authenticated this document as Exhibit 16 at his deposition conducted by HGI'S Westerberg. (See Exhibit 1S, Hall Tr.28). HGI produced the contract at Hall's deposition (Exhibit 16).

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1 2 3 4 5 6 in an affidavit. (Exhibit 73B). 7 8 9 10 11 12 13 14 15 16 17 Amended Joint Disclosure; 4D: Schedule D Executory Contracts. 18 19 20 21 22 23 24 25 26 27 28
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Exhibit 3D: Dallas Thornton's Player Contract. Plaintiff Thornton identified and authenticated this document as Exhibit 8 at his deposition conducted by HGI's Garvey. (See Exhibit 1R, Thornton Tr. 26-27). HGI produced the contract which is HGI Bates stamp #690-696. (Exhibit 76). Thornton has authenticated this contract again

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Exhibit 3E: Twiggy Sanders' Player Contract. Plaintiff Sanders identified and authenticated this document as Exhibit 23 at his deposition conducted by HGI'S Westerberg. (See Exhibit 1T, Sanders Tr. 53). HGI produced the contract which is Bates stamp #801-810. (Exhibit 77).

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Exhibit 3F: Gator Rivers' Player Contract. Plaintiff Rivers identified and authenticated this document as Exhibit 12 at his deposition conducted by HGI'S Westerberg. (See Exhibit 1L, Rivers Tr. 42). HGI produced the contract which is Bates stamp #348-354. (Exhibit 78).

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Exhibits 4A: Order Confirming Bankruptcy Plan; 4B: Debtor's Amended Joint Plan; 4C: Debtor's

Exhibits 4A, 4B, 4C and 4D were obtained from the Clerk of the U.S. District Court of Minnesota. Plaintiffs' counsel has propounded a Declaration (Doc. #273) as to these documents, and submits them again as exhibits to with their Reply to HGI'S Response (Document #265). Plaintiffs provide clerk's certified copies of these exhibits. (Exhibits 72A, B, C & D) and ask this Court to take judicial notice of these facts under Rule 201, Federal Rules of Evidence. 10. Exhibits 5A: IBC Agreement; 5B: HG Bill of Sale to HGI; 5C: Revised Bill of Sale; and 5D: Asset Purchase Agreement.

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Exhibits 5A, 5B, 5C and 5D were produced by HGI and are Bates stamp #1307, 1249, 1191, and 1319 respectively. Witness Horton further authenticated these HGI documents. (See Exhibit 1I, Horton Tr. 12-13). Exhibit 6: FUBU Licensing Agreement. This document was produced to Plaintiffs by both HGI and FUBU Defendants (Bates stamp #139269) and was authenticated by Mannie Jackson as Exhibit 21 to Jackson's Deposition. (See Exhibit

7 8 9 10 11 12 13 14 15 16 17 royalties on bobbleheads. (See Exhibit 1A, Jackson Tr.175-176). 18 19 20 21 22 23 24 25 26 27 28
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1A, Jackson Tr. at 196). FUBU produced said agreement in discovery and does not dispute the agreement. (FUBU'S Objections to Plaintiffs' SOF, Doc#263). 12. Exhibit 7: Mannie Jackson Statement. This ESPN article documented an interview with Mannie Jackson who identified it as Exhibit 9 and testified that the interview quotes were accurate. (See Exhibit 1A, Jackson Tr. 121). 13. Exhibit 8: Ed Garvey Letter. Plaintiffs counsel has stated in a Declaration (Doc#273) that this is a true and accurate copy of a letter to Plaintiffs from Garvey. (See Doc. 273). Jackson identified the letter as Exhibit 18 and testified that at least some of the contents are accurate as relates to paying Neal and Haynes 25%

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Exhibit 9A: HGI FUBU Sales Report to Plaintiffs. This document was identified and authenticated as Exhibit 14 by Mannie Jackson in his deposition. (See Exhibit 1A, Jackson Tr. 147). Additionally, Plaintiff Thornton has identified the document as being received by him. (See Exhibit 1R, Thornton Tr. at 138; Exhibit 73D, Thornton's Affidavit; and Exhibit 71C, Haynes authenticates in his Affidavit).

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Exhibit 9B: HGI FUBU Payments to Plaintiffs. This document was identified and authenticated by Syracuse as Exhibit 24 to his deposition. (See Exhibit 1T, Syracuse Tr. 22). Plaintiff Sanders identified the letter as one he received. (See Exhibit

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1T, Sanders Tr. 121-122). Exhibit 9B was also Exhibit 34 to the Sanders deposition and Exhibit 18 to the deposition of Mannie Jackson. (See Exhibit 1A, Jackson Tr. 176-177). Exhibit 9C: Alumni Letter. This document was Exhibit 11 to Mannie Jackson's deposition at which he testified as to the letter. (See Exhibit 1A, Jackson Tr. 122). Vaughn also testified as to the letter as Exhibit 3. (See Exhibit 1D, Vaughn Tr. 63).

7 8 9 10 11 12 13 14 15 16 17 2005 (Doc. 273, ¶ 28) filed with Plaintiffs' response. Mannie Jackson identified the letter as the one 18 19 20 21 22 23 24 25 26 27 own closet. (See Exhibit 57, C. Jackson Tr. 23-24). Investigator Phipps has documented the tag 28
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Exhibit 9D: FUBU Royalty Analysis. This document was produced by HGI and was Exhibit 13 to Mannie Jackson's deposition where he testified "Yes, this is the report we operated off of, yes." (See Exhibit 1A, Jackson Tr. 131).

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Exhibit 10: Rivers Demand Letter. This document was produced by HGI as Exhibit 14 (HGI Bates stamp #365) and at Rivers deposition conducted by HGI'S Westerberg. Rivers identified and authenticated the letter. (See Exhibit 1L, Rivers Tr. 47).

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Exhibit 11: Plaintiffs' Demand Letter. Plaintiffs' counsel identified and authenticated this document in his Declaration dated November 30,

he received as Exhibit 5 to his deposition. (See Exhibit 1A, Jackson Tr. 64-65). 20. Exhibit 12: Hang Tag. FUBU'S Blenden identified the tag as Exhibit 10 to his deposition and stated "we added it" and it was likely that it was Aurum's and Weisfeld's idea and they were involved in approving it. (See Exhibit 1G, Blenden Tr. 125-128). Jackson identified the exhibit and stated "it's what it was used for"; "I wouldn't take anything off there"; and "it's representative of the Harlem Globetrotters." (Exhibit 1A, Jackson Tr. 190). Catherine Jackson identified the tag as Exhibit 1 to her deposition as being on FUBU/Harlem Globetrotters clothing at "Marshalls and TJ Maxx and even clothing in her

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with digital photographs (Exhibit 13A) and in an Affidavit verifying that the Exhibit 12 hangtag images are authentic. (See Exhibit 13, Phipps Aff. ¶17, Exhibit 13A, Item 43; Exhibit 73C,

Thornton authenticates in his Affidavit). PLAINTIFFS (PRRNSOF) REPLY TO HGI'S RESPONSE TO NEAL PLAINTIFFS' STATEMENT OF FACTS (RNSOF) RNSOF ¶1: Dispute as unsupported by deposition, affidavit or other authenticated information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that the Plaintiffs played basketball and performed other tasks for the Harlem Globetrotters during the following periods: Plaintiff Marques Haynes: 1946-1953, then again from 1972-79 (Haynes Dep. At 16, Doc 196); Plaintiff Robert "Showboat" Hall: 1947-74 (Hall Dep. at 10, Doc 198); Plaintiff Fred "Curly" Neal: 1963-1985 (Neal Dep. at 24, Doc 199), Plaintiff Dallas "Big D" Thornton: 1969-1983 (Thornton Dep. at 10, Doc 201);

12 13 14 15 16 17 18 19 20 21 22 RNSOF ¶2. Dispute as unsupported by deposition, affidavit or other authenticated information in the 23 24 25 26 27 28
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Plaintiff Larry "Gator" Rivers: 1973-1985 (Rivers Dep. at 27, Doc 201); and Plaintiff James "Twiggy" Sanders: 1974-1992, excluding 1984 (Sanders Dep. at 31-32, 53, Doc 198). Defendants do not dispute that each Plaintiff's employment with the Harlem Globetrotters ended prior to the execution of the Licensing Agreement between HGI and GTFM. PRRNSOF ¶1: Plaintiff's Statement of Facts ¶1 stipulated to the facts as stated by FUBU in their Motion. (FUBU Motion for Summary Judgment Doc#180, lines 8-15) which cited to Plaintiffs' depositions. The assertions are further supported by record testimony of

Plaintiffs. (See also PSOF ¶¶1, 34, 35, 36, 37, 38 and 39).

record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). The HGI Defendants do not dispute the existence of a union in approximately the late 1970s to the mid-1980s; however, Defendants dispute that the collective bargaining agreements superceded the individual player contracts as Plaintiff Thornton testified that the collective bargaining agreements were "additional benefits" that did not limit the rights to either

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side of the individual contract. (Thornton Dep. at 38). In fact, the 1983 collective bargaining agreement contains an attachment that specifically incorporates the publicity and licensing paragraph of the standard player contract signed by all Plaintiffs into the collective bargaining agreement. (Thornton Dep. at 86-87, 91, Ex. 11 at 1126, 1163; Ex. 8 ¶12(a).) PRRNSOF ¶2: Exhibit 2(B) CBA 1983 was authenticated by Plaintiff Thornton as was

his signature thereon. (See PRGO ¶2 infra). Article 2.1 of the CBA is clear that no term of 7 8 9 10 11 12 13 14 15 16 17 paragraphs. HGI counsel never asked Thornton whether the CBA incorporated paragraph 1 18 19 20 21 22 23 24 25 26 27 paragraph 1 of the September 1, 1983 letter regarding the "standard" 12(a) publicity clause is 28
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the individual contracts should be "less favorable to the Employee concerned than a specific provision of this Agreement." HGI's assertion of the CBA's incorporation of this provision is false. The "attachment" referred to by HGI as incorporating publicity rights into the CBA was incomplete and has no signature page. (HGI introduced the exhibit in the Thornton deposition). The CBA is dated October 11, 1983 and ends at Bates stamp #1159. It is followed by several appendices (A,B,C,D,E) listed in the CBA index (Bates stamp #1126). Appendix C is an October 7, 1983 letter (Bates stamp #1160-1161), Appendix D is an October 10, 1983 letter (Bates stamp #1162), and Appendix E is a September 1, 1983 letter (Bates stamp #1163-1164). HGI's referenced "attachment" is Appendix E and contains four

to Appendix E (the publicity paragraph) at all. (Exhibit 1R, Thornton Tr. at 86-90). In fact, HGI counsel on the record twice acknowledges that Appendix E is incomplete. (Exhibit 1R Thornton Tr. at 90, 118). HGI Counsel even asked Thornton for a copy (Id. at 90) which Thornton did not have. HGI'S assertion that the CBA incorporates paragraph 1 (the

publicity provision) of Appendix E (Bates stamp #1163-1164) is simply contradicted by the CBA Index (Bates stamp #1126) referencing the September 1, 1983 letter, and which states that it is only: "in regard to the following: Par. 2 Wide World of Sports Payments, Par. 3 Air Travel, Par. 4 Bonus Procedures." That is, paragraphs 2, 3 and 4 are incorporated, while

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specifically NOT incorporated. (Exhibit 72, CBA 1983, and Appendices Bates stamp #11241164). Thornton, former president of the union and signatory to the 1983 CBA is clear: the CBA "over-rid whatever the individual contract was," (Ex. 1R, Thornton Tr.42) and "we would receive 25% of all negotiated deals." (Id. at 41). Additionally, Thornton states in an affidavit that the 12(a) publicity provision in paragraph 1, Appendix E, was never incorporated in the CBA, or any other document. (Exhibit 73, Thornton Aff. ¶6).

7 8 9 10 11 12 13 14 15 16 17 PRRNSOF ¶4: Jackson testified that "he" is the owner of HGI. (Exhibit 1A, Jackson Tr.9). 18 19 20 21 22 23 24 25 26 27 28
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RNSOF ¶3.

Dispute as unsupported by deposition, affidavit or other authenticated information in the

record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). The HGI Defendants do not dispute that IBC transferred assets to HG, Inc. after IBC filed for bankruptcy in 1991. (Horton Dep. at 10-11). PRRNSOF ¶3: Exhibit 5A was authenticated. See ¶10 supra.

RNSOF ¶4.

Dispute as unsupported by deposition, affidavit or other authenticated information in the

record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Defendant Jackson was one person involved with the formation of HGI in 1993; however, it was Mannie Jackson and Associates and HGI that purchased the Globetrotters in 1993. (Nikolais Dep. at 11, 19-20 & Ex.1).

Exhibit 5D Asset Purchase Agreement was signed by Jackson and authenticated. (¶10 supra, PSOF ¶3, 4, 5).

RNSOF ¶5: Dispute as unsupported by deposition, affidavit or other authenticated information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that the

aforementioned schedules do not specifically list Plaintiffs' names or contracts, but the player contracts and other intangible assets are mentioned in the agreement. (Nikolais Dep. at 11 and Ex. 1 at 1323, 1325, 1374, 1377, 1387; Horton Dep. at 56-57).

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PRRNSOF ¶5: Horton and Nikolis testified that Plaintiffs' names and contracts are not listed, but specifically list Dunbar. (Exhibit 1I, Horton Tr.25, 26, 29-30; and Exhibit 1H, Nikolis Tr.14, 34). See also HGI's admission that Plaintiffs are not listed. HGI's RNSOF ¶5.

RNSOF ¶6. The HGI Defendants do not dispute that Plaintiffs have not signed player contracts with 7 8 9 10 11 12 13 14 15 16 17 RNSOF ¶7: If Plaintiffs intend to refer to the 1993 Asset Purchase Agreement, undisputed. 18 19 20 21 22 23 24 25 26 27 28
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Harlem Globetrotters International, Inc., but dispute any implication that HGI does not possess, or did not acquire, the rights to use Plaintiffs' names and likenesses. (E.g., Horton Dep. at 54, 57 (confirming NatWest's intent to sell HGI all the assets of HG.)) The HGI Defendants do not know what Plaintiffs refer to when they state "nor were Plaintiffs contacted for their authority" and do not respond to this portion of the SOF ¶6. PRRNSOF ¶6: Plaintiffs assertion that "nor were Plaintiffs' contacted for their authority" refers to PSOF ¶6 which references deposition testimony of Mannie Jackson and others that Plaintiffs were not contacted.

PRRNSOF ¶7: Plaintiffs were referring to Exhibit 5D, the Asset Purchase Agreement.

RNSOF ¶8. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that HGI entered into a License Agreement with GTFM, LLC on June 1, 2002, or that Plaintiffs' names are not specifically mentioned as "Licensed Property." PRRNSOF ¶8: See ¶11 supra.

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RNSOF ¶9.

Dispute as unsupported by deposition, affidavit, or any other information in the record as

required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that the Apparel was sold in interstate commerce and overseas. PRRNSOF ¶9: Exhibit 9C is supported by deposition testimony. See ¶16 supra.

RNSOF ¶10. Dispute as unsupported by deposition, affidavit, or any other information in the record as 7 8 9 10 11 12 13 14 15 16 17 required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Further disputed, as to whether due diligence was 18 19 20 21 22 23 24 25 26 27 PRRNSOF ¶13: Undisputed. 28
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required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a).

Further, Defendants dispute the substance of this

statement, as Mr. Weisfeld testified that "I don't know when or actually if [the hangtags] were used" and that while all of the Apparel would have tags, it was "not necessarily these tags." (Weisfeld Dep. at 57, 60, Lemon SJ Ex F, Doc 206.) PRRNSOF ¶10: Exhibit 12 is supported by the Phipps Affidavit which is Exhibit 13A. Weisfield's testimony as to his ignorance of the use of the tags was clarified by Blenden, Jackson and C. Jackson. See ¶20 supra.

RNSOF ¶11. Dispute as unsupported by deposition, affidavit, or any other information in the record as

conducted or required is a legal conclusion. PRRNSOF ¶11: The assertion is supported by the referenced deposition excerpts.

Additionally see PSOF ¶¶11, 14, 15, 16, 17, 18, 19, 60, 64 and 67.

RNSOF ¶12. Undisputed. PRRNSOF ¶12: Undisputed.

RNSOF ¶13. Undisputed.

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RNSOF ¶14. Disputed in part, but immaterial. No sample player contract was attached to the License Agreement. (Syracuse Aff. ¶10, Ex. 1 at GTFM 169, Doc 208). Defendants do not dispute that a sample player contract was provided to GTFM during negotiations for the License Agreement. (Lenihan Dep. at 20, Doc 201). PRRNSOF ¶14. The assertion is material to Plaintiffs assertions that no due diligence was done. Plaintiffs corrected PSOF ¶14 to state that a sample was "not attached." Lenihan had

7 8 9 10 11 12 13 14 15 16 17 PSOF ¶15, now corrected). 18 19 20 21 22 23 24 25 26 27 28
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testified that a sample contract was "included in our agreement with FUBU." (Exhibit 1C, Lenihan Tr. 20-21). This was not true. See Exhibit 6.

RNSOF ¶15. Disputed in part as unsupported by the record citation, but immaterial. Mr. Weisfeld testified, "I think in [Mr. Jackson's] capacity as CEO and owner of the Globetrotters, when he said that he had the right to use those names and pass those along to us, we trusted him." (Weisfeld Dep. at 67, Lemon Ex F, Doc 206.) PRRNSOF ¶15. Plaintiffs assertion is supported by deposition testimony of Blenden. (See Exhibit 1G, Blenden Tr. 35-36). This excerpt was erroneously designated 1F (1F Weisfeld in

RNSOF ¶16. Undisputed. PRRNSOF ¶16. Undisputed.

RNSOF ¶17. Undisputed. PRRNSOF ¶17. Undisputed.

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RNSOF ¶18. Undisputed that HGI did not contact Plaintiffs or former players for permission to enter into the agreement. PRRNSOF ¶18. Undisputed.

RNSOF ¶19. Undisputed. PRRNSOF ¶19. Undisputed.

7 8 9 10 11 12 13 14 15 16 17 PRRNSOF ¶21: This assertion was a stipulation to FUBU's assertion at FUBU Motion 18 19 20 21 22 23 24 25 26 27 mailing of this document to Plaintiffs. (See Exhibit 1A, Jackson Tr. 147). PSOF ¶22 refers 28
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RNSOF ¶20. Undisputed. PRRNSOF ¶20. Undisputed.

RNSOF ¶21. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a), and as a legal conclusion. None of the plaintiffs have registered their names, likenesses, or numbers with the U.S. Patent & Trademark Office. (Abalos Dep. at 44, Doc 201.)

Doc#180, p. 5, line 4; Weisfeld Decl. ¶5.

RNSOF ¶22. Disputed as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Further dispute any implication that the three shirts and

one cap displaying Harlem Globetrotter trademarks that were purchased in the Philippines and elsewhere in Asia contained the names of likenesses of any of the Plaintiffs. (Gallo Dep. at 28 ­ 29, Phipps Dep. at 60.) PRRNSOF ¶22: Exhibit 9A containing the approximate 45,000 garments was Exhibit 15 to Thornton's Deposition. HGI's Jackson and Syracuse confirmed the preparation and

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to the Manila, Philippines purchase of FUBU Globetrotter clothing bearing the number 22 and the Legends hangtag. (Exhibit 13). Additionally, Gallo testified that the Manila

purchases bore the Legends' hangtags and have Plaintiffs' names, nicknames, and numbers. Gallo also photographed the garments and has provided the same as exhibits. (Exhibit 1P Gallo Tr. 5; Exhibit 13, Phipps Aff.). See also ¶14 supra.

RNSOF ¶23. Undisputed. PRRNSOF ¶23: Undisputed.

RNSOF ¶24. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). The HGI Defendants do no dispute that HGI sent Plaintiffs checks related to the Apparel with a letter, a portion of which is quoted in SOF ¶ 24. (Syracuse Aff. ¶ 12 & Ex. K, Doc 208.) PRRNSOF ¶24: Thornton states in an affidavit it is a true and authentic copy. (Exhibit 73D). Plaintiffs' Exhibits 9A and B are supported by deposition testimony. (See ¶¶14 and 15 supra.) HGI admits that HGI sent Plaintiffs' checks with the letter. (RNSOF ¶24.)

18 19 RNSOF ¶25. Dispute that Mr. Jackson was referring to the FUBU agreement with the phrase "100 million 20 21 22 23 24 25 26 27 28
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dollar deal," but immaterial.

The record citation indicates Mr. Jackson's testimony that Harlem

Globetrotters International, Inc. is a "100 million dollar business." PRRNSOF ¶25: Jackson confirmed the accuracy of his quote in his deposition and did not qualify the statement or distinguish it from the FUBU licensing deal about which he was being interviewed. (Exhibit 1A, Jackson Tr. 121). Jackson admitted the quote. (See ¶12 supra.)

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RNSOF ¶26. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Plaintiffs were not entitled to payment under the License Agreement, but dispute any inference that HGI sent money to Plaintiffs in response to their letter. (Jackson Dep. at 139-41, Lemon SJ Ex. L, Doc 206). Almost a year prior to sending these checks, on December 31, 2002, HGI sent Plaintiffs Neal and Haynes checks for a similar program for bobblehead dolls. (Syracuse Aff., ¶¶ 4-5 & Ex. A, B, Doc 208.) Further dispute in part: for the

7 8 9 10 11 12 13 14 15 16 17 program until October 31, 2003. See PSOF ¶100 disputing HGI's SOF ¶88. Exhibit 9A was 18 19 20 21 22 23 24 25 26 27 assertion. 28
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FUBU promotion, Plaintiffs were offered 8% of the Globetrotters' royalty for sales of Apparel containing their information, not 8% of HGI's total royalty. (Lenihan Dep. at 32, Doc 201.) The Globetrotters" royalty was 10% on the first $10 million, then 8% thereafter. (Syracuse Aff. ¶10, Ex. 1 at GTFM 152-53, Doc 208.) PRRNSOF ¶26: Plaintiffs assertion is supported by Plaintiffs' Affidavits as to their belief that the payments received in late October were because of Plaintiffs' demand letter sent September 29, 2003 (Exhibit 11). Plaintiffs don't dispute HGI's clarification that Plaintiffs were offered (paid) 8% of the HGI royalty. Plaintiffs' assertion is supported by deposition testimony that Plaintiffs did not receive any money or correspondence related to the FUBU

also authenticated. (See ¶ 14 supra.)

RNSOF ¶27. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a), but immaterial. Defendants do not dispute that Jackson wrote to the players on September 4, 2003, to announce that HGI would give "approximately $30,000" of revenues earned form FUBU to Globetrotters charities and for emergency expenses for former players. PRRNSOF ¶27: HGI does not dispute the assertion. This assertion as well as Exhibit 9C is supported by deposition testimony. (See ¶16 supra.) HGI does not otherwise dispute this

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RNSOF ¶28. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). HGI Defendants do not dispute that net sales of men's and boy's apparel was approximately $22 million at the time referenced, but dispute any inference that the figure is inconsistent with the representations of Mannie Jackson described in SOF ¶ 27. PRRNSOF ¶28: HGI does not dispute the approximate sales. (Exhibit 9A and B were

produced by the Plaintiffs and authenticated by Jackson as to royalties being paid to the 7 8 9 10 11 12 13 14 15 16 17 testimony. 18 19 20 21 22 23 24 25 26 27 name a single player that was helped by the Foundation. (Exhibit 1A Jackson Tr. at 198-199). 28
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Foundation). HGI does not dispute payments to the Foundation. Plaintiffs' assertion and Exhibit 9D are supported by deposition testimony. Declaration ¶26, Doc#273). (See ¶16 supra. and Townsend

RNSOF ¶29. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that royalties earned from sales of FUBU merchandise were paid to Defendant Harlem Globetrotters International, Inc. and that HGI in turn gave some of its royalties to HGIF. (Syracuse Aff., Exs. I, K Doc. 208.) PRRNSOF 29: This assertion and Exhibits 9A and B are supported by deposition

(See ¶¶14 and 15 supra and Townsend Declaration ¶¶23, 24, Doc#273).

Additionally, HGI does not dispute that royalties from FUBU merchandise sales were given to the Foundation.

RNSOF ¶30. Dispute in part as unsupported by the record citation.

Mr. Jackson testified that

approximately half a dozen former players had received a benefit from the Foundation but could not recall names. Mr. Jackson further testified that the information was documented. (Jackson Dep. at 199, Lemon SJ Ex. L, Doc 206.) PRRNSOF ¶30: Plaintiffs assertion was supported by Jackson's testimony that he could not

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It is unclear which portion of PSOF ¶30 is disputed by HGI. Jackson testified re: the bobblehead program: "the plan was to bring funds into our Foundation" (Ex. 1A Jackson Tr. at 280). Plaintiffs' assertion that Jackson could not name a single former player that the Foundation helped is accurate (Exhibit 1A Jackson Tr. at 199): Q: A: Q: A: Q: A: Q: A. Q: A. Who are they? I can't give them by name. Can you give me any? I can give you names, yes. Who? I can't give them to you now, I don't have them now. You have access to the information? Yes. But don't know any? I don't remember.

RNSOF ¶31. Undisputed. PRRNSOF ¶31: Undisputed.

RNSOF ¶32. Dispute, but immaterial. Mr. Vaughn has been employed by Harlem Globetrotters Inc., not Jackson, since 2000. (Vaughn Dep. at 5) PRRNSOF ¶32: Undisputed that Vaughn testified that he had been employed by "Harlem Globetrotters Inc." (Plaintiff believes that HGI means to refer to "Harlem Globetrotters International Inc.") (Exhibit 1D, Vaughn Tr. at 5).

RNSOF ¶33. Dispute as unsupported by deposition, affidavit, or any other information in the record as 23 24 25 26 27 28
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required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a) for Plaintiffs Neal, Rivers, Thornton, Hall, and Sanders. Dispute for all Plaintifffs as to what is meant by "Jackson's foundation." If Plaintiffs intend to refer to Harlem Globetrotters International Foundation, Inc., dispute that Plaintiffs' names were used to raise

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money for the Foundation. HGI does not dispute that it gave some of the royalties it received from the FUBU agreement to HGIF. Syracuse Aff., Ex. K, Doc 208). PRRNSOF ¶33: Plaintiffs assertion is supported by Plaintiffs Thornton's Affidavit (Exhibit 73D; PSOF ¶¶29, 30, 31, 61) citing deposition and testimony. All HGI disputes is Plaintiffs' assertion that Plaintiffs' names were "used to raise money for" the Foundation. Mannie Jackson's letter to the Plaintiffs clearly states "the purpose of the programs is to raise money

7 8 9 10 11 12 13 14 15 16 17 42, Ex. 54, Doc 199). 18 19 20 21 22 23 24 25 26 27 28
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for the Foundation." (Exhibit 48). This assertion is supported by deposition testimony and affidavit. (See PSOF ¶61). HGI still disputes that "Plaintiffs' names were used to raise money for the Foundation" at RNSOF ¶33, whereas Plaintiffs' Exhibit 9A breaks down the exact amount of revenues derived from the use of Plaintiffs' names going to the Foundation.

RNSOF ¶34. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Curly Neal had a contract with IBC that terminated in 1989 and was governed by the laws of Delaware, but it was a public relations contract, not a player contract. Curly Neal's last player contract with IBC terminated in 1983. (Neal Dep. at

PRRNSOF ¶34:

Plaintiffs assertion is supported by Exhibit 3A Neal's Contract, and See ¶3 supra. HGI's distinction between "player"

supporting deposition testimony.

contract and "public relations" contract (Exhibit 3A) is immaterial in that ¶16 of 3A is clear that this last contract superceded all previous contracts. Plaintiffs' assertion and Exhibit 3A are supported by deposition testimony. (See ¶3 supra.) HGI's distinction between a

"public relations contract" and "player contract" is irrelevant.

RNSOF ¶35. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). HGI Defendants do not dispute that Haynes' last

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Globetrotters' player contract, with Harlem Globetrotters, Inc., terminated in 1980 and was governed by the laws of Illinois. (Haynes Dep. at 22-23, Ex. 22, Doc 196.) PRRNSOF ¶35: Plaintiffs assertion is supported by Exhibit 3B and by deposition testimony of Haynes. See ¶4 supra.

RNSOF ¶36. Dispute as unsupported by deposition, affidavit, or any other information in the record as 7 8 9 10 11 12 13 14 15 16 17 the laws of California. (Thornton Dep. at 27, Ex. 8, Doc. 201.) 18 19 20 21 22 23 24 25 26 27 See ¶8 supra. 28
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required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Hall's last Globetrotters player contract, with Harlem Globetrotters, Inc., terminated in 1974 and was governed by the laws of Illinois. (Hall Dep. at 28-29, Ex. 16, Doc 198). PRRNSOF ¶36: Plaintiffs assertion is supported by Exhibit 3C and by deposition

testimony. See ¶5 supra.

RNSOF ¶37. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). HGI Defendants do not dispute that Plaintiff Thornton's last Globetrotters player contract, with Harlem Globetrotters, Inc., terminated in 1982, and was governed by

PRRNSOF ¶37:

Plaintiffs' assertion is supported by Exhibit 3D and by deposition

testimony. See ¶6 supra.

RNSOF ¶38. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). HGI Defendants do not dispute that Plaintiff River's last Globetrotters player contract, with Harlem Globetrotters, Inc. terminated in 1985 and was governed by the laws of California. (Rivers Dep. at 46, Ex. 12, Doc. 201.) PRRNSOF ¶38: Plaintiffs' assertion is supported by Exhibit 3F and deposition testimony.

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1 2 3 4 5 6 PRRNSOF ¶39: Plaintiffs assertion is supported by Exhibit 3E and deposition testimony. 7 8 9 10 11 12 13 14 15 16 17 revenues, Plaintiff Rivers testified that such contract extension was never executed and was not his contract. 18 19 20 21 22 23 24 25 26 27 (Jackson Dep. at 256, Lemon SJ Ex L, Doc 206), one of the top-selling items of merchandise sold at arenas 28
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RNSOF ¶39. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). HGI Defendants do not dispute that Plaintiff Sanders' last player contract terminated in 1992, was with HG, Inc. and was governed by the laws of Minnesota. (Sanders Dep. at 53, Ex. 23, Doc. 198.)

See ¶7 supra.

RNSOF ¶40. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a) for Plaintiffs Haynes, Hall, Thornton, Lemon, and Sanders. Further Defendants strongly dispute this statement for Plaintiffs Rivers and Neal as completely unsupported by the record citation, and as a blatant misrepresentation of the testimony given by Plaintiffs Rivers and Neal. When asked if he had been compensated for use of his name on the Scooby-Doo cartoon, Plaintiff Rivers replied, "No." (Rivers Dep. at 28, Doc 201). When asked about an unexecuted contract extension that would have provided compensation for endorsements, merchandise appearances and television

(Rivers Dep. at 46, Doc 201). The record citation that Plaintiffs offer for Mr. Neal's testimony does not discuss payments for endorsements, merchandise appearances, and cartoon appearances. PRRNSOF ¶40: Plaintiffs assertions are supported by deposition and affidavit. See PSOF ¶47, with the clarification that the referenced $30,000 for Rivers endorsements was in negotiation and not actually paid in that manner. (Exhibit 1L, Rivers Tr. 46; PSOF ¶¶66, 87; Exhibits 21, 40, 45, 48, and 66).

RNSOF ¶41. Dispute. Mr. Jackson additionally testified that Plaintiffs' names were used in programs

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were the Globetrotters play (Syracuse Aff. ¶ 7 & Ex. C-H, Doc 208), and Plaintiffs' names are used in other merchandising and promotional contexts (e.g., Syracuse Aff. ¶¶17-19, Doc 208), as Plaintiffs are generally aware (DSOF ¶¶ 39, 40, 42, Doc 196 (citing Haynes Dep. at 68, Doc 196; Rivers Dep. at 69-70, Doc 201; Thornton Dep. at 135-36, Doc 201; Hall Dep. at 48-49, Doc 198; Sanders Dep. at 86-87, Doc 198; Hall Dep. at 48-49.). Historically, the Globetrotters have used Plaintiffs' names and likenesses for a variety of merchandise and promotion activities. (DSOF ¶¶ 24-31, Doc 196 (citing evidence in the record)).

7 8 9 10 11 12 13 14 15 16 17 Globetrotter events, although other apparel is. (Jackson Dep. at 258-59, Lemon SJ Ex L, Doc 206.) 18 19 20 21 22 23 24 25 26 27 merchandise they purchased was actually authorized or manufactured by FUBU. (Phipps Dep. at 116-117, 28
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PRRNSOF ¶41: Disputed. Plaintiffs' assertion is supported by deposition and affidavit. Jackson testified that he has never used Plaintiffs names and likenesses on any clothing line similar to FUBU's but only on some small items of the "type sold at games" which Jackson called "trash." (See PSOF ¶¶42, 51, 71). Plaintiffs also dispute that their names were used on "other merchandising and promotional contexts" such as FUBU. (See PSOF ¶¶90, 41, 42). Historically the Globetrotters have used Plaintiffs after consent and payment. (PSOF ¶¶47, 51, 66, 68, 73, 74 and 87).

RNSOF ¶42. Dispute in part. Mr. Jackson testified that the FUBU Apparel was not sold at Harlem

PRRNSOF ¶42: Disputed. Jackson is clear that no apparel bearing Plaintiffs' names and likenesses has been sold. Additionally, Jackson testified that under the Licensing

Agreement with NiceMan that lasted until 1998 and specifically the NiceMan line of apparel, t-shirts, and sweatshirts "did not" include any of the Plaintiffs names and likenesses. (Exhibit 1A Jackson Tr.259). Jackson said no apparel was sold bearing Plaintiffs names. (PSOF ¶71).

RNSOF ¶43. Dispute as unsupported by the record citation. Neither Phipps nor Gallo testified that the

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Gallo at 31.) FUBU witnesses did not know if retailers were still selling the Apparel. (Blenden Dep. at 46, Lemon SJ Ex G, Doc 206.) PRRNSOF ¶43: Plaintiffs' assertion is supported by deposition testimony and exhibits thereto. Phipps and Gallo purchased FUBU garments bearing Plaintiffs names, nicknames, numbers and likenesses up through the time of Phipps Affidavit in November 2005. (Exhibit 13 Phipps Affidavit and Exhibits). Phipps and Gallo had no personal knowledge as

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to manufacturer--just that the FUBU garments bearing Plaintiffs' marks were being marketed and sold as "FUBU the Collection."

RNSOF ¶44. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). If Plaintiffs intend to refer to Haynes' last player contract, dated 1975, Defendants dispute as an incomplete recitation of the contract language. That language did not limit uses of Plaintiff Haynes' name to "promotion," and dispute that the "with respect to commitments made by HGI prior to such termination" is conjunctive with "the same uses they were put to prior to such termination." The entire excerpt reads: Marques further agrees that each such interview, appearance and picture and/or his name and/or facsimile of his signature and/or his likeness may be used by HGI in any manner it may desire for the advertising and promotion of any of HGI's athletic teams or other activities or the advertising and promotion of the sale of any commercial products or services by HGI or by any other person, firm or corporation which may be licensed or otherwise authorized by HGI to so use such interview, appearance, picture, Marques' name, facsimile of his signature or likeness. The authorization granted in this paragraph by Marques shall not terminate upon the termination of this Agreement or Marques' employment hereunder no matter what the reason, but shall continue in full force and effect thereafter with respect to commitments made by HGI prior to such termination, with respect to interviews and appearances made and pictures taken prior to such termination and with respect to his name, facsimile of his signature and likeness to the extent they are put to the same uses as they were put prior to such termination. (Haynes Dep. at 22-23, Ex. 22 ¶ 15(a), Doc 196.) HGI Defendants further dispute the recitation of ¶ 18 as incomplete. It states: "HGI shall have the right to sell, assign and transfer this Agreement or to loan Marques' services to any basketball team operating under the name Harlem Globetrotters owned and

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operated by HGI or any successor to the business of HGI. This Agreement may not be sold, assigned or transferred nor may Marques' services be loaned, except as provided in this paragraph 18, without the prior written consent of Marques." (Haynes Dep. Exh. 22, ¶ 18 Doc 196) (emphasis added)). PRRNSOF ¶44: Plaintiffs' assertion is supported by deposition testimony and affidavit. (See PSOF¶81 disputing HGI's SOF ¶16; see also ¶4 supra regarding Haynes authentication of his contract as Exhibit 22 to his deposition). Plaintiff Haynes disputes HGI's

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Globetrotters purported perpetual rights "during the term of its license." This language is 28
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interpretation of his contract.

RNSOF ¶45. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). In Plaintiff's intend to refer to Neal's public relations contract dated September 20, 1988, Defendant's dispute Plaintiff's mischaracterization of the contract language. Paragraph 9 does not limit HG's use of rights to the term of the contract. Further, Neal would receive 75% only for "non-Globetrotter advertisements." PRRNSOF ¶45: Neal's Contract states 25% of Globetrotter related revenues. (Exhibit 3A, ¶11). Plaintiffs' assertion is further supported by PSOF ¶83.

RNSOF ¶46. Dispute as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Further disputed as a legal conclusion. Defendants are unable to determine which contracts Plaintiffs are referring to, but if Plaintiffs intend to refer to Plaintiff Sanders and Rivers' last Globetrotters contracts, Defendants do not dispute that the obligations of players to participate in "live and recorded radio and television programs and commercial announcements, interviews and personal appearances, etc." terminate at the end of the contract term. (Rivers Dep. Ex. 12, Doc 201; Sanders Dep. Ex. 9, Doc 198). PRRNSOF ¶46: The "standard" 12(a) provision requires that players "enable" the

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in the "standard" Rivers contract sent to Plaintiffs by HGI'S Garvey who stated it was the one "signed by every player who ever walked on a basketball court for the Harlem Globetrotters." (Exhibits 8, 78).

RNSOF ¶47. Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a) for Plaintiffs Haynes, Hall, Thornton and Sanders.

7 8 9 10 11 12 13 14 15 16 17 money. (Neal Dep. at 175-76.) 18 19 20 21 22 23 24 25 26 27 would like to be paid for additional sales of FUBU bearing his name, except that Mr. Dunbar did not testify 28
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Further Defendants dispute this statement for Plaintiffs Rivers and Neal as unsupported by the record citation, and as a blatant misrepresentation of the testimony given by Plaintiffs Rivers and Neal. When asked if he had been compensated for use of his name on the Scooby-Do cartoon, Plaintiff Rivers replied, "No." (Rivers Dep. at 28, Doc 201). When asked about an unexecuted contract extension that would have provided compensation for endorsements, merchandise appearances and television revenues, Plaintiff Rivers testified that such contract extension was never executed and was not his contract. (Rivers Dep. at 46, Doc 201). Similarly, Plaintiffs' record citation indicates that Mr. Neal only testified about re-runs or repeat telecasts of Wide World of Sports, for which he was not paid, and Converse, for which he was paid. Mr. Neal could not identify the source of the money or the terms or conditions under which he received the

PRRNSOF ¶47: Disputed. Additional support for Plaintiffs' assertion is at PSOF ¶¶66 and 87. Rivers testimony was that the terms of the contract extension letter (Exhibit 10) relating to merchandise was consistent with his history of Globetrotter dealings. The letter was generated by the Globetrotters, not Rivers' wishful thinking. (Exhibit 1L, Rivers Tr.101). Rivers was paid for Converse and Love Boat. (Id. at 29, 30).

RNSOF ¶48. Dispute in part as unsupported by deposition, affidavit, or any other information in the record as required by Fed.R.Civ.P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Mr. Dunbar

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that he had any legal right to such payment. HGI Defendants note that when Plaintiffs filed this suit in February 2004, GTFM ceased sending HGI royalty payments, and as a consequence, HGI ceased sending checks to players whose names and information was used on the Apparel. DSOF ¶89 (Syracuse Aff. ¶15, Doc 208.) Further, Defendants do not dispute that Dunbar may have been on the UBPS negotiating committee, but dispute Plaintiff's statement that the committee "secured additional merchandising rights supplemental to individual contracts." Dunbar merely testified that it was his "...belief that players in

7 8 9 10 11 12 13 14 15 16 17 Globetrotter organizations since 1977. (Id. at 11). The "union decertification" reference is 18 19 20 21 22 23 24 25 26 27 28
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fairness should be entitled to additional monies for merchandising, appearances or endorsements." (Dunbar Dep. at 37). Defendants dispute that there were no formal actions to disband the UBPA; at the time of the bankruptcy and MJA and HGI's purchase of the Globetrotters in 1993, there was no evidence that a union was in existence. (Nikolais Dep. at 32; Horton Dep. at 52; Jackson Aff., 11/22/05, ¶ 3.) One of the documents cited in the purchase agreement was "union decertification." (Nikolais Dep. at 11 & Ex. 1 at 1377.) PRRNSOF ¶48: There is no evidence the union was NOT in existence as HGI has falsely posited. Dunbar said it was "never disbanded." (Exhibit 1M, Dunbar Tr. 44: "we didn't do anything to disband it."). Dunbar ought to know ­ he has been with the various

on books and records schedules that were never produced, and the "point man" attorney Nikolis testified to no knowledge about the union "at all" or its decertification. (Exhibit 1H, Nikolis Tr. 32). Additionally, federal bankruptcy law prohibits the unilateral

termination or alteration of a collective bargaining agreement without satisfying all the conditions of 11 U.S.C.A. §1113(f). HGI has produced no evidence that the Collective Bargaining Agreement was "decertified".

DATED this _9th_ day of December, 2005.

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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 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.

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ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on December _9th__, 2005, a true and correct copy of the Plaintiffs' Response in Opposition to Defendant HGI'S Motion for Partial 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 __9th_, 2005, a true and correct copy of Plaintiffs' Response in Opposition to Defendant HGI'S Motion for Partial 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.
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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 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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