Free Response - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' Inc., l, Harlem Globetrotters International Foundation, Inc., and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON' S RESPONSE TO PLAINTIFF NEAL' S STATEMENT OF FACTS

12 MEADOWLARK LEMON, et al., 13 14

Plaintiffs, vs. HARLEM GLOBETROTTERS

15 INTERNATIONAL, INC., et al.; 16 17 18 INTERNATIONAL, INC., an Arizona 19

Defendants. HARLEM GLOBETROTTERS corporation, Counterclaimant,

20 vs.

21 MEADOWLARK LEMON, a married man, 22 23 24 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1736336.1/43458.007 Document 266 Filed 11/28/2005 Page 1 of 20

Counterdefendant. Pursuant to District Court of Arizona LRCiv 56.1(a), Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie & Catherine Jackson (collectively, "HGI Defendants") submit the following Response to Plaintiff Neal' s

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Statement of Facts ("RNSOF") in support of Defendants' response to Plaintiff Neal, Haynes, Rivers, Thornton, Hall, and Sanders' motion for summary judgment. In this Response, "HGI" or "the Globetrotters" refers to Harlem Globetrotters International, Inc. and "GTFM" and "FUBU" refer to GGTFM, LLC. "License Agreement" refers to the June 1, 2002 license agreement entered into by HGI and GTFM, and "Apparel" refers to apparel produced in accordance with that agreement. GENERAL OBJECTIONS The HGI Defendants generally object to Plaintiffs' Exhibits 2A, 2B, 3A, 3B, 3C, 3D, 3E, 3F, 4A, 4B, 4C, 5A, 5B, 5C, 5D, 6,7,8,9A, 9B, 9C, 9D, 10, 11, and 12 ,1 a variety of unauthenticated documents, and any facts relying thereon. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a). "It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment. . . . This court has consistently held that documents which have had no proper foundation to authenticate them cannot support a motion for summary judgment." Canada v. Blain' Helicopters., Inc., 831 F.2d 920, 925 (9th Cir. 1987) (internal quotation marks s and citations omitted). The HGI Defendants object to the Neal Plaintiffs' statement of facts as untimely filed with the Court, and in fact, as not properly filed with the Court at all. (Order, 10/7/05, Doc 173; LRCiv 56.1(a).) The Neal Plaintiffs purported to file their statement of facts on October 28,
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These exhibits are summarized as follows: 5C: Revised Bill of Sale 5D: Asset Purchase Agreement 6: FUBU Licensing Agreement 7: Mannie Jackson Statement 8: Ed Garvey Letter 9A: HGI FUBU Sales Report to Plaintiffs 9B: HGI FUBU Payments to Plaintiffs 9C: Alumni Letter 9D: FUBU Royalty Analysis 10. Rivers Demand Letter 11. Plaintiff' Demand Letter s 12. Hang Tag

2A: Collective Bargaining Agreement from 1997 [sic] 2B: Collective Bargaining Agreement from 1984 3A: Curly Neal' Player Contract s 3B: Marques Haynes' Player Contract 3C: Showboat Hall' Player Contract s 3D: Dallas Thornton' Player Contract s 3E: Twiggy Sander'Player Contract 3F: Gator Rivers' Player Contract 4A: Order Confirming Bankruptcy Plan 4B: Debtor' Amended Joint Plan s 4C: Debtor' Amended Joint Disclosure s 5A: IBC Agreement 5B: HG Bill of Sale to HGI

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2005, as Docket # 74 in Case No. CV-04-1023 DGC.2 The document is actually a copy of a proposed summary judgment order, and not Plaintiffs' proposed facts. Notwithstanding and without waiving these objections, the HGI Defendants respond to the Neal Plaintiffs' statement of facts as follows. RESPONSES TO THE NEAL PLAINTIFFS'STATEMENT OF FACTS 1. Plaintiffs were variously employed as players and player-coaches for Harlem

Globetrotters entities from 1946 (Hayes)[sic] through 1991 (Sanders), most having terminated their employment decades before the License Agreement of 2002 (FUBU Motion p. 6, lines 815) citing to Plaintiffs' deposition), wherein HGI granted FUBU a license to manufacture and distribute merchandise. 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); 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.

The Neal Plaintiffs filed their motion for summary judgment and statement of facts under the wrong case number, as they failed to use the "lead" case number as required by LRCiv 7.1(a)(3). Consequently, all other references to these documents will refer to the docket number in case number Case No. CV-04-1023 PHX DGC.

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2.

The United Basketball Players Association (hereinafter "UBPA"), organized to represent

players for the Harlem Globetrotters, entered into several Collective Bargaining Agreements (CBA' including agreements in 1977 and 1983, with various amendments pursuant to which s), Harlem Globetrotters, Inc. (a corporate name utilized by various owners) agreed to pay royalties on merchandise sales to the players (Exhibit "2", CBA, article 14.12), and provided rights considered "minimal" and supplemental to, and superceding, the individual players contracts (Exhibit "2 (B)" CBA, Article 2.1). The term was though [sic] August 31, 1986, with annual automatic renewals. (Id., Article 16.1) RNSOF 2: 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 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 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).) 3. Harlem Globetrotter, Inc. (unrelated to Defendant Jackson' HGI) bought the Harlem s

Globetrotters from International Broadcasting Corp ("IBC"), a corporation that filed for bankruptcy on August 30, 1991. (Exhibit "5 (A)"). 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 tranferred assets to HG, Inc. after IBC filed for bankruptcy in 1991. (Horton Dep. at 10-11.)

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4.

Jackson formed HGI in 1993 and entered into the Asset Purchase Agreement of August

1, 1993 (Exhibit "5 (D)" - Asset Purchase Agreement). 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). 5. The Asset Purchase Agreement includes a schedule of "Player and Personnel Contracts"

(schedule "2.1 (I)" to Exhibit "5 (D)" Bates Stamp # 1386), and a schedule of trademarks and "Intellectual Property Rights" (schedule "2.1 (F)" to Exhibit "5 (D)" 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 (# 7 (b) of schedule 2.1 (i)). 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 that 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). 6. Plaintiffs never entered into any agreement with HGI at all orally or in writing, nor were

Plaintiffs contacted for their authority. (Exhibit "1" (A) Jackson Tr.204, (D) Vaughn Tr.62 stating "I' certain that they were not asked", (K) Neal Tr. 168, Hayes Tr. 57). m RNSOF 6: The HGI Defendants do not dispute that Plaintiffs have not signed player contracts with Harlem Globetrotters International, Inc., but dispute any implication that HGI does not possess, or did not acquire, the rights to use Plaintiffs' names and likenesses. (E.g., Horton Dep. at 54, 57 (confirming NatWest' intent to sell HGI all the s assets of HG.)) The HGI Defendants do not know what Plaintiffs refer to when they state

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"nor were Plaintiffs contacted for their authority" and do not respond to this portion of the SOF ¶6. 7. The parties to the Agreement and their attorneys testified that Plaintiffs' names and

contracts were never brought up during the negotiations and execution of the Agreement (Horton tr. 29, 30). RNSOF 7: If Plaintiffs intend to refer to the 1993 Asset Purchase Agreement, undisputed. 8. FUBU (as GTFM, LLC), entered into a License Agreement with HGI on June 1, 2002.

Plaintiffs names are not specifically mentioned as "Licensed Property." (FUBU Motion p.3, 1.20) (Sacks Decl. Ex A, section 1.3(b)). 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." 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 (Exhibit "9 (C)"). 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. 10. Much of the Harlem Globetrotters apparel sold by FUBU had hang tags listing the

specific player' names, including Plaintiffs' which where used as marketing tools (Exhibit s , "12"). RNSOF 10: 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, Defendants dispute the substance of this statement, as Mr. Weisfeld testified that "I don' know when t

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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.) 11. FUBU representatives never conducted any due diligence as to Plaintiffs' rights, and

relied solely on the representations of Jackson (Exhibit "1 (A)" Jackson Tr. p. 261, Weisfeld Tr. 68, stating contracts were "boxed up" and "not accessible" "due to the bankruptcy.) RNSOF 11: 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). Futher dispute, as whether due diligence was conducted or required is a legal conclusion. 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, Sacks Decl. Ex. A section 1.9(a) (viii). RNSOF 12: Undisputed. 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 "1 (A)" Jackson Tr. p. 262). RNSOF 13: Undisputed. 14. Only a sample player contract was attached to the contract between FUBU and HGI, and

FUBU never expressed any concern as to its enforceability as to Plaintiffs. (Exhibit "1 (C)" Lenihan, Tr. p. 20-21). 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) 15. Simply because Mannie Jackson was the owner of the Globetrotters and was former

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player, FUBU relied on Mannie Jackson' assertions that every player singed [sic] the same s
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contract and every player had given up his rights to HGI to use his name (Exhibit "1 (F)" Weisfeld Tr. p. 35-36). RNSOF 15: Disputed in part as unsupported by the record citation, but immaterial. Mr. Weisfeld testified, "I think in [Mr. Jackson' capacity as CEO and owner of the s] 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.) 16. Larry Blenden does not recall seeing any player contracts that were signed by the

Plaintiffs. (Exhibit "1 (G)", Blenden Tr. p. 36-37). RNSOF 16: Undisputed. 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 "1 (G)", Blenden Tr. p. 47-48), "1 (Q)" Haynes Tr. p. 92). RNSOF 17: Undisputed. 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 "1 (A)", Jackson Tr. p. 204). RNSOF 18: Undisputed that HGI did not contact Plaintiffs or former players for permission to enter into the agreement. 19. Aurum did not make any effort to contact any of the Plaintiffs about their permission or

approval of the FUBU clothing line. (Exhibit "1 (E)", Aurum Tr. p. 23-24). RNSOF 19: Undisputed. 20. Aurum is CEO of FUBU the collection LLC. (Exhibit "1 (E)", Aurum Tr. p. 7). Aurum

is in charge of marketing, distribution, and product placement. Id. RNSOF 20: Undisputed. 21. "Some" of the FUBU/HGI apparel contained Plaintiffs' trademarks (FUBU Motion, p. 5,

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L.4) Weisfeld Decl. Paragraph 5).
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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.) 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 "1 (O)" Phipps Tr. 58,59; "1 (P)" Gallo Tr. 1-19). RNSOF 22: 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 dispute any implication that the three shirts and one cap displaying Harlem Globetrotter trademarks that were purchased in the Phillipines and elsewhere in Asia contained the names or likenesses of any of the Plaintiffs. (Gallo Dep. at 28 ­ 29, Phipps Dep. at 60.) 23. Michael Syracuse is the chief financial office of HGI and is responsible for financial

matters and accounting records of HGI (Exhibit "1 (B)" p. 9 and 11). RNSOF 23: Undisputed. 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 "9 (B)"). But, checks were written to Plaintiffs for FUBU sales (Exhibit "9 (A) (B)"). 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 not 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.)

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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 "1(A)" Jackson Tr. p. 121, Exhibit "7"). RNSOF 25: Dispute that Mr. Jackson was referring to the FUBU agreement with the phrase "100 million dollar deal," but immaterial. The record citation indicates Mr. Jackson' testimony that Harlem Globetrotters International, Inc. is a "100 million dollar s business." 26. Plaintiffs were never paid a dime under the License Agreement before Plaintiffs sent a

demand letter on September 29, 2003 (Exhibit "11"). Then, Plaintiffs received a check for 8% of HGI' 8% royalty while being told "you are not entitled to any money "(Exhibit "9 (A)", s Jackson letter to Plaintiffs). The FUBU licensing agreement was actually for 10% of the first $10 million (Exhibit "9 (D)" Article II). 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 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.) 27. Jackson wrote to the former players (including Plaintiffs) on September 4, 2003 that the

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total would be "approximately $30,000.00" (Exhibit "9 (C)").
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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 $30,000.00" of revenues earned from FUBU to Globetrotters charities and for emergency expenses for former players. 28. The FUBU sales reported to HGI as of November 2003 were actually $22,661,645.50

(Exhibit "9 (D)"). 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' and boy' apparel was approximately $22 million at the s s time referenced, but dispute any inference that the figure is inconsistent with the representations of Mannie Jackson described in SOF ¶ 27. 29. Revenues from sales of FUBU merchandise bearing Plaintiffs' names went to Harlem

Globetrotters International Foundation, Inc. (Exhibit "9 (A) (B)). 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.) 30. Jackson stated that the Foundation helped former players experiencing hardships but

could not name a single former player that he had helped (Exhibit "1(A)", Jackson Tr. p. 198, 199). 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.)

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31.

Governor 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 "1 (D)", Vaughn Tr. p. 6 & 7). RNSOF 31: Undisputed. 32. Vaughn has been employed by Jackson since 2000 (Exhibit "1 (D)", Vaughn Tr. p. 5). RNSOF 32: Dispute, but immaterial. Mr. Vaughn has been employed by Harlem Globetrotters Inc., not Jackson, since 2000. (Vaughn Dep. at 5) 33. Plaintiffs never agreed to allow their names to be used to raise money for Jackson' s

Foundation (Exhibit "1 (L)", Haynes Tr. p. 107-108, and p. 98) and don' know what it does. t RNSOF 33: 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 Neal, Rivers, Thornton, Hall, and Sanders. Dispute for all Plaintiffs as to what is meant by "Jackson' foundation." If Plaintiffs intend to refer to Harlem Globetrotters International s Foundation, Inc., dispute that Plaintiffs' names were used to raise money for the Foundation. HGI does not dispute that it gave some of the royalities it received from the FUBU agreement to HGIF. (Syracuse Aff., Ex. K, Doc 208.) 34. "Curly" Neal' last player contract terminated 1989, and was with IBC, owned by IBC s

and governed by the laws of Delaware (Exhibit " 3 (A)" page 1,2, and paragraph 7). 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' last player contract with IBC terminated in 1983. (Neal Dep. at s 42, Ex. 54, Doc 199).

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35.

Marques Haynes' last player contract terminated 1980, as was with Harlem Globetrotters,

Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois (Exhibit "3 (B)" p. 1, p.1, and paragraph 20). 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 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.) 36. Showboat Hall' last player contract terminated 1974, and was with Harlem s

Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois (Exhibit "3 (C)" para 2, p. 1, and para 1b). RNSOF 36: 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 Hall' last Globetrotters player contract, with Harlem Globetrotters, Inc., s terminated in 1974 and was governed by the laws of Illinois. (Hall Dep. at 28-29, Ex. 16, Doc 198.) 37. "Big D" Dallas Thornton' last player contract terminated in 1982, and was with Harlem s

Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California (Exhibit "3 (D) para 2, p. 1, and para 1b). 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' last Globetrotters player contract, with Harlem s Globetrotters, Inc., terminated in 1982, and was governed by the laws of California. (Thornton Dep. at 27, Ex. 8, Doc. 201.)

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38.

"Gator" River' last player contract terminated 1985, and was with Harlem Globetrotters, s

Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California (Exhibit "3 (F)" para 2, p.1, and para 1b). 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' last Globetrotters player contract, with Harlem s Globetrotters, Inc. terminated in 1985 and was governed by the laws of California. (Rivers Dep. at 46, Ex. 12, Doc. 201.) 39. "Twiggy" Sanders last player contract terminated 1992, and was with Harlem

Globetrotters, Inc., owned by IBC and governed by the laws of Minnesota (Exhibit "3 (E)" para 2, p. 1, and para 17). 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.) 40. Since the inception of Plaintiffs' relationships with various "Harlem globetrotters"

entities, Plaintiffs have received payments for endorsements, merchandise appearances and cartoon appearances while employed under the player contracts (Exhibit "1 (L)" Rivers Tr. 102, "1 (K)" Neal Tr. 168). 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

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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). The record citation that Plaintiffs offer for Mr. Neal' testimony does not discuss s payments for endorsements, merchandise appearances, and cartoon appearances. 41. Aside from the FUBU clothing line and some bobble head dolls, HGI has not licensed or

utilized the Plaintiffs' names and likenesses (Exhibit "1 (A)" Jackson Tr. p 249-250). RNSOF 41: Dispute. Mr. Jackson additionally testified that Plaintiffs' names were used in programs (Jackson Dep. at 256, Lemon SJ Ex L, Doc 206), one of the top-selling items of merchandise sold at arenas where the Globetrotters play (Syracuse Aff. ¶ 7 & Ex. C-H, Doc 208), and Plaintiffs' names are used in other merchandising and promotional contexts (e.g., Syracuse Aff. ¶¶ 17-19, Doc 208), as Plaintiffs are generally aware (DSOF ¶¶ 39, 40, 42, Doc 196 (citing Haynes Dep. at 68, Doc 196; Rivers Dep. at 69-70, Doc 201; Thornton Dep. at 135-36, Doc 201; Hall Dep. at 48-49, Doc 198; Sanders Dep. at 86-87, Doc 198; Hall Dep. at 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)). 42. Not even the clothing sold in the arenas at Harlem Globetrotters events contains

Plaintiffs' name and likeness (Exhibit "1 (A)" Jackson Tr. p. 259). RNSOF 42: Dispute in part. Mr. Jackson testified that the FUBU Apparel was not sold at Harlem Globetrotter events, although other apparel is. (Jackson Dep. at 258-59, Lemon SJ Ex L, Doc 206.) 43. Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line bearing

Plaintiff' names (Exhibit "1 (O)", Phipps Tr. p. 19,58,59, 76, 83, "1 (P)" Gallo Tr. p. 1-19). s RNSOF 43: Dispute as unsupported by the record citation. Neither Phipps nor Gallo testified that the merchandise they purchased was actually authorized or manufactured by

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FUBU. (Phipps Dep. at 116-117, 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.) 44. Haynes contract states that it may not be assigned without his prior written consent

(paragraph 18) and that the employer rights to use his name may be used for promotion, but only "with respect to commitments made by HGI prior to such termination" and for "the same uses they were put to prior to such termination." (paragraph 15 a, Exhibit "3 (B)" and "1 (Q)" Haynes Tr. p. 102). 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

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recitation of ¶ 18 as incomplete. It states: "HGI shall have the right to sell, assign and
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transfer this Agreement or to loan Marques' services to any basketball team operating under the name Harlem Globetrotters owned and operated by HGI or any successor to the business of HGI. This Agreement may not be sold, assigned or transferred nor may Marques' services be loaned, except as provided in this paragraph 18, without the prior written consent of Marques." (Haynes Dep. Exh. 22, ¶ 18 Doc 196) (emphasis added)). 45. Neal' contract states that rights granted to "HG" are only for the term of the contract s

(paragraph 9) and that Neal will receive 75% of "non-Globetrotter" services (paragraph 11, Exhibit "3 (A)"). 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' intend to s refer to Neal' public relations contract dated September 20, 1988, Defendant' dispute s s Plaintiff' mischaracterization of the contract language. Paragraph 9 does not limit HG' s s use of rights to the term of the contract. Further, Neal would receive 75% only for "nonGlobetrotter advertisements." 46. The publicity provisions in player contracts are coupled with obligations to appear,

interview, etc. ­ obligations that terminated when the contracts terminated (i.e. Exhibit "3 (E)" Sanders para. 12, Rivers "3 (F)" para 12 (a)). 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 dispute 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).

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47.

Rivers consistently received payments for merchandise (i.e. converse) endorsements and

appearances, including $30,000 for same in Rivers last year (1985) because "that has always been the position that we' been under." (Exhibit "1 (2)" Rivers p. 101, 102 and Exhibit "10" ve Rivers letters). Other Plaintiffs were paid for merchandise in addition to salaries in player contracts (Neal testimony at Exhibit "1 (K)" p. 175). 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. 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-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 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 reruns 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 money. (Neal Dep. at 175-76.) 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 "1 (M)" Dunbar Tr. p. 96) Dunbar was also on the UBPA negotiating committee that secured additional merchandising rights supplemental to individual contracts (Exhibit "1 (A)", p. 37, 41) and there is no evidence that formal actions was ever taken to disband the UBPA (Id, p.45). RNSOF 48: Dispute in part as unsupported by deposition, affidavit, or any other

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information in the record as required by Fed. R. Civ. P. 56 and LRCiv 56(1)(a). Defendants do not dispute that Mr. Dunbar would like to be paid for additional sales of FUBU bearing his name, except that Mr. Dunbar did not testify 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 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' purchase s 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.)

RESPECTFULLY SUBMITTED this 28th day of November, 2005. By: s/ Edward R. Garvey____________ Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913

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Attorneys for Defendants Harlem Globetrotters Int' l, Inc., Harlem Globetrotters Int' Foundation, and l Mannie L. & Catherine Jackson 1. I hereby certify that on November 28, 2005, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Edward R. Garvey ­ [email protected] Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Joel Louis Herz - [email protected], [email protected] Ira S. Sacks ­ [email protected] Anders Rosenquist, Jr. ­ [email protected] Clay Townsend ­ [email protected], [email protected] Robert W. Goldwater, III ­ [email protected] 2. I hereby certify that on November 28, 2005, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan Colling & Gilbert PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802

s/ Melody Tolliver

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