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 MEADOWLARK LEMON, et al., Plaintiffs, 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 LEMON' S STATEMENT OF FACTS

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HARLEM GLOBETROTTERS 16 INTERNATIONAL, INC., et al.;
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Defendants.

HARLEM GLOBETROTTERS 19 INTERNATIONAL, INC., an Arizona corporation,
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Counterclaimant, vs.

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MEADOWLARK LEMON, a married man, Counterdefendant.

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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 Lemon' s Statement of Facts ("RLSOF") in support of Defendants' response to Plaintiff Lemon' motion s for summary judgment. In this Response, "HGI" or "the Globetrotters" refers to Harlem Globetrotters International, Inc. and "GTFM" and "FUBU" refer to GTFM, 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 Defendants object to Plaintiff' Exhibits A, C, H, N, P, Q, R, T, and U,1 a variety of s unautheniticated 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 not had a 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). Defendants also object to Exhibits B, D, and E, which are Plaintiff' second amended s complaint, the HGI Defendants' answer, and GTFM' answer, respectively. These documents s
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These exhibits are summarized as follows: A: HGI Merchandise Tags C: Letter to Mannie Jackson from Anders Rosenquist, dated December 23, 2003 H: Letter to Anders Rosenquist from Ed Garvey, dated September 30, 2003 N: List of Years Plaintiffs Played/Coached with Globetrotters P: ESPN webpage article titled, "Globetrotters: A throwback original" Q: FUBU sales 6/02-5/03 spreadsheets R: Globetrotter merchandise/apparel pictures and descriptions T: Newspaper article titled, "Globetrotters call foul on Meadowlark: U: Globetrotters picture/symbol

(Lemon SOF, 10/28/05, Doc 206).

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are pleadings and not evidence sufficient to support a motion for summary judgment. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (holding only sworn, verified complaints can be cited as evidence in a motion for summary judgment). These exhibits, and any facts relying thereon, should be disregarded. Finally, Defendants object to the Lemon Statement of Fact ("SOF") ¶¶ 79, 80, 84, 86, 87, 88, 89, and 90 as completely unsupported by any citation to the record at all, and therefore in violation of Fed. R. Civ. P. 56 and LRCiv 56(1)(a). These purported facts should be disregarded.
Notwithstanding and without waiving these objections, the HGI Defendants respond to the Neal Plaintiffs'statement of facts as follows.

RESPONSES TO PLAINTIFF LEMON' STATEMENT OF FACTS S 1. Plaintiff was employed in various capacities, including playing basketball, and doing

public relations for various and different companies owning the "Harlem Globetrotters" for the period of 1957 to 1979. HGI' Answer to Plaintiff' Second Amended Complaint, Affirmative s s Defenses and Counterclaim ¶11, attached as Exhibit "D"; Plaintiff' Second Amended s Complaint ¶ 4, attached as Exhibit "B"; See Affidavit of Meadowlark Lemon ¶ 1. RLSOF 1: 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 Plaintiff Lemon played basketball and performed other tasks for the Harlem Globetrotters from 1955 to 1979. DSOF ¶ 7, Doc 196 (citing Lemon Dep. at 112, Doc 199). 2. Plaintiff was also employed by the company owning the "Harlem Globetrotters" as a

coach for the 1976-1977 season. See Exhibit "D" ¶11. RLSOF 2: 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 Plaintiff Lemon occasionally coached for the Globetrotters. (Lemon Dep. at 112, Doc 199.)

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3.

Plaintiff is no longer involved with the Harlem Globetrotter organization. See Exhibit

"B" ¶ 13; Exhibit "D" ¶ 13; See Affidavit of Meadowlark Lemon ¶ 2. RLSOF 3: Undisputed. 4. Plaintiff never signed a contract with the original Harlem Globetrotter' owner or HGI, in s

which he signed away his rights in perpetuity for the use of his name and likeness. See Affidavit of Meadowlark Lemon ¶ 4, 5, 7, 8. RLSOF 4: Dispute as a conclusion of law. Further, Plaintiff Lemon admits in his affidavit (i.e. Lemon Aff., ¶ 3 & Ex. A, 1975 contract) and elsewhere that he signed player contracts with the Globetrotters. Those contracts contained publicity provisions granting the Globetrotters the right to use Plaintiff Lemon' name, likeness, and other identifying s information beyond the contract term. DSOF ¶ 18, Doc 196 (citing Lemon Dep. at 113-15 & Ex. 4, 5, 6, 7 ¶ 15(a), Doc 199.) 5. Plaintiff has no agreements/contracts with HGI, GTFM, nor any other person, party or

entity, allowing license or use of his identity, attributes of identity, name, images, or likenesses. See Affidavit of Meadowlark Lemon ¶ 4, 5, 9; Exhibit "B" ¶ 14. RLSOF 5: Dispute as a conclusion of law. Further, Plaintiff admits in his affidavit and elsewhere that he signed player contracts with the Globetrotters. Those contracts contained publicity provisions granting the Globetrotters the right to use Plaintiff Lemon' name, likeness, s and other identifying information beyond the contract term. DSOF ¶ 18, Doc 196 (citing Lemon Dep. at 113-15 & Ex. 4, 5, 6, 7 ¶ 15(a), Doc 199.) 6. Plaintiff became aware that a FUBU clothing line of sports apparel was being

manufactured and sold featuring his name and player number when he witnessed many fans wearing the clothing at the ceremony in which Plaintiff was being inducted into the Basketball Hall of Fame and his number (36) was retired. See Affidavit of Meadowlark Lemon ¶ 10. RLSOF 6: Undisputed except the phrase "and his number (36) was retired." This phrase is not contained in the Lemon affidavit and is therefore unsupported.

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7.

While playing for the Harlem Globetrotters, Plaintiff wore # 36 on his jersey. See

Spreadsheet for Years Plaintiff' Played/Coached with the Globetrotters, attached as s Exhibit "N"; Transcript of Deposition of Govoner Vaughn. RLSOF 7: Undisputed. 8. Plaintiff' #36 has been retired. See Transcript of Deposition of Govoner Vaughn, p. 38, s

attached as Exhibit "O". Plaintiff' number is one of only four Harlem Globetrotters' numbers s that have been retired. Id. RLSOF 8: Undisputed, except other Globetrotters players have worn the number 36 in recent years, including Donnie Boyce in 2001, William Pippen in 2004, and Gordon Malone in 2005. DSOF ¶ 10, Doc 196 (citing Syracuse Aff., 10/26/05, ¶ 9, Doc 208). 9. People associate # 36 with Plaintiff. See Affidavit of Meadowlark Lemon ¶ 15. RLSOF 9: Disputed. Lacks foundation and contains hearsay, and is a conclusory, selfserving statement insufficient to support a motion for summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 n, g (9th Cir. 1997). Also, the Lemon affidavit contains no paragraph 15. 10. Plaintiff first became aware of HGI and GTFM' actions in producing a clothing line s

displaying his name and likeness in or about the end of 2003. See Affidavit of Meadowlark Lemon ¶ 11; See Exhibit "B" ¶ 24. RLSOF 10: Undisputed. 11. On December 23, 2003, Plaintiff sent a letter to HGI and Mannie Jackson, requesting any

and all documentation which they are relying on that gives Defendants or any other entity authorization to use Plaintiff' name, image, likeness, number, notoriety, and goodwill. See s Exhibit "B" ¶ 24; Letter to Mannie Jackson, CEO of HGI, from Rosenquist & Associates dated December 23, 2003, attached as Exhibit "C"; See Exhibit "D" ¶ 24. RLSOF 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), but immaterial.

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12.

Defendants did not respond to the inquiry by the stated deadline of January 15, 2004.

See Exhibit "C"; Exhibit "B" ¶ 24; Exhibit "D" ¶ 24. RLSOF 12: 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. 13. On September 15, 2004, counsel for HGI finally responded to the December 23, 2003,

and stated that HGI was relying on the excerpted paragraph from Plaintiff' 1975 contract as the s authority to use/license Plaintiff' name, likeness, and player number on a clothing line. See s Letter from Garvey & Stoddard dated September 30, 2004, attached as Exhibit "H". That excerpted paragraph from Plaintiff' 1975 Contract states that the Harlem Globetrotters only s have the right to use Plaintiff' name, likeness, and player number to the extent they are put to s the same uses as they were put prior to the termination of the contract. See Exhibit "H". RLSOF 13: 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 they are relying in part on Plaintiff Lemon' 1975 contract as license and authority to use s Plaintiff' name and likeness. E.g., DSOF ¶ 18, Doc 196 (citing Lemon Dep. at 113-15 & Ex. 4, s 5, 6, 7 ¶ 15(a), Doc 199.) 14. GTFM initially contacted HGI in February 2001, regarding possibly doing a license

transaction. See Transcript of Deposition of Larry Blenden, attached as Exhibit "G", p. 9-11. RLSOF 14: Undisputed. 15. 13. RLSOF 15: Undisputed. 16. HGI entered into an agreement with GTFM and others to license, develop, create, The contract between GTFM and HGI was singed in June 2002. See Exhibit "G" p. 12-

produce, manufacture, market, promote, sell, and distribute apparel products, goods, and other merchandise, and under the agreement HGI authorized the use of the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who thereafter play for the

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Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. See GTFM' Answer to Plaintiff' Second Amended Complaint ¶ 15, attached as s s Exhibit "E"; See Exhibit "D" ¶ 15 & ¶ 27. RLSOF 16: 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 an agreement in June 2002 that, inter alia, granted GTFM a worldwide license to use the mark and designs of the Harlem Globetrotters to manufacture, market, and sell apparel and related items, and that GTFM could use the name and other information of former Globetrotter players other than Wilt Chamberlain and Magic Johnson. DSOF ¶¶ 67, 68, Doc 196 (citing Syracuse Aff. ¶ 10 & Ex. 1 at GTFM 140-41, Doc 208.) 17. HGI has profited from the sales of the clothing bearing Plaintiff' name and likeness. See s

ESPN article, attached as Exhibit "P"; Spreadsheet of FUBU Sales, attached as Exhibit "Q". RLSOF 17: 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 does not dispute it received a licensing fee from the License Agreement, and that some of the merchandise produced in accordance with that agreement contained Plaintiff' name and likeness. DSOF ¶ s 73, Doc 196 (citing Syracuse Aff., ¶ 10, Ex. 1 at GTFM 152-53), DSOF ¶ 79 (citing Weisfeld Dep. at 54, Doc 199.). 18. GTFM paid a licensing fee to HGI. See Transcript of Deposition of Mr. Weisfeld,

attached as Exhibit "F", p. 95-96. RLSOF 18: Undisputed. 19. HGI was paid a total of $1,723,000 in royalties from GTFM through September 19, 2003.

See Transcript of Deposition of Mannie Jackson, p. 131, attached as Exhibit "L". RLSOF 19. Undisputed. 20. In the contract between GTFM and HGI, there are no specific player' names listed to be s

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used in the clothing line (specifically named the Platinum FUBU Harlem Globetrotters Line).
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See Exhibit "G" p. 19-20. RLSOF 20: Undisputed. 21. Bruce Weisfeld is president of GTFM and most of the related companies including

GTFM, Inc. and FUBU. See Exhibit "F" p. 7-8. Mr. Weisfeld is also a lawyer. See Exhibit "F" p. 62. RLSOF 21: Dispute in part as unsupported by the record citation, but immaterial. Mr. Weisfeld is president of GTFM, LLC, GTFM, Inc., and related companies, including FUBU. (Weisfeld Dep. at 7-8.) 22. GTFM, Inc. is the holding company for the trademark FUBU. See Exhibit "F" p. 9.

Other than holding the trademark FUBU, GTFM, Inc. and FUBU do not have any connection, operationally or financially, with the Harlem Globetrotters. See Exhibit "F" p. 8-9. RLSOF 22: Undisputed. 23. FUBU the Collection, LLC participated in the design and marketing of the clothing line.

SOF ¶ 25, 29. RLSOF 23: Dispute as unsupported by deposition, affidavit, or other information in the record as required by LRCiv 56(1)(a). 24. GTFM began selling the Harlem Globetrotters apparel sometime in 2001 or 2002. See

Exhibit "F" p. 25-26. RLSOF 24: Dispute as unsupported by record citation, which does not discuss the date when GTFM began selling the Apparel to retailers. Given that the date of the license agreement was June 1, 2002, the merchandise could not have been sold in 2001. DSOF ¶ 67, Doc 196 (citing Syracuse Aff. ¶ 10 & Ex. 1, Doc 208). Dispute is immaterial. 25. The clothing line bearing Plaintiff' name and jersey number have been marketed, s

offered for sale and sold in interstate commerce in the United States. See Exhibit "D" ¶ 27; Samples of Clothing, attached as Exhibit "R". RLSOF 25: Dispute as unsupported by deposition, affidavit, or other information in the

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record as required by LRCiv 56(1)(a), and therefore lacks foundation. HGI does not dispute that the Globetrotters FUBU Apparel was sold in the United States, and that a small portion of the Apparel contained Plaintiff' name. DSOF ¶ 79, Doc 196 (citing Weisfeld Dep. at 54, Doc s 201.) HGI disputes any inference that Plaintiff Lemon possesses ownership in the jersey number he wore as a Globetrotter. DSOF ¶ 12, Doc 196 (citing Jackson Aff., ¶ 19, Doc 204). 26. The Harlem Globetrotter' apparel sold by GTFM had hangtags listing the specific s

players names, including Meadowlark Lemon, which were used as marketing tools. See Exhibit "F" p. 55-61; Sample Copies of Hang Tags, attached as Exhibit "A". RLSOF 26: Disputed as unsupported by the record citation. Mr. Weisfeld testified that "I don' know when or actually if [the hangtags] were used" (Weisfeld Dep. at 57, Lemon SJ Ex t F, Doc 206) and that while all of the Apparel would have tags, it was "not necessarily these tags" (id. at 60, Lemon SJ Ex F, Doc 206). 27. GTFM' purpose of including the individual players names on the hang tags of the s

clothing was so that the consumer knew a little bit more of the product and about the organization and merchandise when is was purchased. See Exhibit "G" p. 124-125. RLSOF 27: Dispute. The Neal Plaintiffs have no information about whether and to what extent the hangtags were used. (Weisfeld Dep. at 57, 60, Lemon SJ Ex F, Doc 206.) 28. At the FUBU wholesale level, GTFM' estimate of the total wholesale of all HGI s

merchandise and apparel was approximately twenty million dollars. See Exhibit "F" p. 86-87. RLSOF 28: Undisputed. 29. The clothing line had a projected sales volume of twenty million dollars. See Transcript

of Deposition of Daymond Aurum, attached as Exhibit "I", p. 40-41. RLSOF 29: Disputed as unsupported by the record citation, but immaterial. Mr. Aurum testified that "I don' know the projected sales volume." (Aurum Dep. at 40, Lemon SJ Ex I, t Doc 206.) 30. The Harlem Globetrotters royalty analysis from GTFM for January 2002 through
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November 2003 shows net sales on men' and boy' clothing line alone for the first two years of s s $22.6 million. See Exhibit "I" p. 45. RLSOF 30: Undisputed. 31. The FUBU Globetrotters jerseys and warm up suits became an immediate hit and sold

over $60 million retail in the first two years. See Exhibit "L" p.121-122. RLSOF 31: The HGI Defendants do not dispute that this was Mr. Jackson' s understanding of retail sales. 32. The FUBU Globetrotters clothing line was available worldwide in over 5,000 retail stores

in thirty countries with retail sales of over $35 million the first ten months of the three-year deal. See Exhibit "L" p. 122. RLSOF 32: The HGI Defendants do not dispute that this was Mr. Jackson' s understanding of retail sales. 33. The clothing bearing Plaintiff' name, likeness, and player number sold very well, and s

was the highest selling of all players. See Exhibit "L" p. 138. RLSOF 33: Dispute in part as unsupported by the record citation, i.e. that Apparel bearing Mr. Lemon' name, likeness, and player number was the highest selling of all players. s Mr. Jackson testified as follows: Q: So there' ­ the new guys were selling in the clothing stores just as s good as guys like Meadowlark Lemon, Curly Neal, Marques Haynes? A: I think Marques Haynes and Curly Neal ­ Meadowlark Lemons [sic] sold very well. They sold well. That was the highest group of the ­ highest ratio of the group. (Jackson Dep. at 138, Lemon SJ Ex. L, Doc 206.) Dispute is immaterial. 34. When the computer animated drawings of the apparel containing Plaintiff' and other s

player' names were generated, they were shown to GTFM for approval, and, in some instances, s to HGI for approval. See Exhibit "F" p. 97-99. RLSOF 34: Dispute in part as unsupported by the record citation. Mr. Weisfeld' s
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testimony reflects that generally, computer assisted drawings of the Apparel were shown to GTFM management for approval and in some instances to Mr. Jackson. Mr. Weisfeld' s testimony was not limited solely to Apparel containing Plaintiff' and other player' names. s s (Weisfeld Dep. at 98-99, Lemon SJ Ex F, Doc 206.) 35. Some of the apparel created by GTFM was shown to HGI before it was actually sold.

See Exhibit "F" p. 111. RLSOF 35: Undisputed. 36. Mr. Aurum, on behalf of FUBU the Collection, LLC, determined styles of the clothing in

the line and marketing as far as what type of advertising should be done. See Exhibit "I" p. 1011. RLSOF 36: Undisputed. 37. Samples of the clothing line would be looked at by Mr. Aurum, on behalf of FUBU the

Collection, LLC, and he would approve or disapprove the various styles. See Exhibit "I" p. 1820. RLSOF 37: Dispute in part as unsupported by the record citation, but immaterial. Mr. Aurum testified that he would have approved or disapproved various styles only "in some cases." (Aurum Dep. at 19, Lemon SJ Ex. I, Doc 206.) 38. No one from GTFM contacted Plaintiff for his input or approval regarding the apparel

produced by GTFM with his name on it. See Exhibit "F" p. 112; See Affidavit of Meadowlark Lemon ¶ 12. RLSOF 38: Undisputed. 39. HGI will continue to use Plaintiff' name, image, jersey number, likeness, goodwill and s

notoriety as a Harlem Globetrotter for its own commercial benefit. See Exhibit "D" ¶ 19. RLSOF 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 does not dispute it will continue to use Plaintiff' information to the extent it is legally authorized to do. s

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40.

HGI purported to terminate the contract between HGI and GTFM because GTFM was

not paying royalties under the agreement. See Exhibit "G" p. 45. RLSOF 40: Dispute as unsupported by the record citation, but immaterial. Mr. Blenden testified that he believed the Globetrotters purported to terminate the contract. (Blenden Dep. at 45, Lemon SJ Ex G, Doc 206.) Defendants do not dispute that the License Agreement is no longer in effect, having expired on November 20, 2004. DSOF ¶ 90, Doc 106 (citing Syracuse Aff. ¶ 10, Ex. 1 at GTFM 140, 161, Doc 208.) 41. Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line bearing

Plaintiff' name. See Exhibit "G" p. 46. s RLSOF 41: Dispute as unsupported by the record citation, but immaterial. Mr. Blenden testified as follows: Q: A: Q: Is GTFM still selling [the Apparel] wholesale to the retailers? Not to my knowledge. Do you know if retailers still have it, are still selling it? I don' know, but it is possible. t

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A:

(Blenden Dep. at 46, Lemon SJ Ex G, Doc 206.) 42. When GTFM learned about the player dispute, the company' reaction was that the s

indemnity clause from their contract with HGI would probably take care of the issue. See Exhibit "F" p. 16. GTFM did not contact HGI when GTFM learned of the player dispute. Id. RLSOF 42: Undisputed. 43. After the filing of the lawsuit, Mr. Larry Blenden handled the issue regarding whether to

make an effort to stop selling the apparel that is the subject of this lawsuit on behalf of GTFM with HGI. See Exhibit "F" p. 17-19. RLSOF 43: Undisputed.

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44.
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This was GTFM' first contract with HGI. See Exhibit "F" p. 102. s
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RLSOF 44: Undisputed. 45. During the contract negotiations with GTFM, Mannie Jackson, on behalf of HGI, in

which Mannie Jackson represented that the HGI had the right to use player' names and s likenesses. See Exhibit "F" p. 65-66. Specifically, Mannie Jackson stated that all past Harlem Globetrotter players signed a contract with the original Harlem Globetrotter' owner, in which s the players signed away their rights in perpetuity for the use of their names and likenesses. Id. RLSOF 45: Undisputed. 46. GTFM simply trusted that Mannie Jackson, as CEO and owner of the Harlem

Globetrotters, had the right to use Plaintiff' name and likeness. See Exhibit "F" p. 67-68. s RLSOF 46: 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 Globetrotters, s] 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 SJ Ex F, Doc 206.) 47. GTFM included an indemnification agreement in their contract with HGI regarding past,

present, or future Globetrotter' players because GTFM did not receive every player' contract s s that played for the Globetrotter' See Exhibit "G" p. 34-35. s. RLSOF 47: Undisputed. 48. GTFM asked for an indemnity in their contract with HGI because HGI represented to

GTFM that all of the player contracts were "standard" player contracts and GTFM was not interested in reviewing all of approximately six hundred player contracts including Plaintiff' s contract. See Exhibit "L" p. 262. RLSOF 48: Undisputed. 49. Only a sample player contract was attached to the contract between GTFM and HGI, and

GTFM never expressed any concern that there were many players but they were only provided with one contract. See Transcript of Deposition of Colleen Lenihan, p. 20-21, attached as Exhibit "K".

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RLSOF 49: Dispute 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, Lemon SJ Ex K, Doc 206.) 50. GTFM never raised any concerns about there being different player contracts for the

different players, other than the sample contract provided to them by HGI. See Exhibit "K" p. 22. RLSOF 50: Undisputed. 51. Simply because Mannie Jackson was the owner of the Globetrotters and was a former

player, GTFM relied on Mannie Jackson' assertions that every player signed the same contract s and every player had given up his rights to HGI to use his name. See Exhibit "G" p. 35-36. RLSOF 51: Dispute as incomplete. Mr. Blenden additionally testified that he relied on the reputation of the Globetrotters as an organization, as well as Mr. Jackson' reputation as a s "very respected man in the business community." (Blenden Dep. at 35-36, Lemon SJ Ex G, Doc 206.) 52. Larry Blenden does not recall seeing any player contracts that were signed by the players

ultimately used in the clothing line. See Exhibit "G" p. 36-37. RLSOF 52: Undisputed. 53. Lawrence Blenden is general counsel for GTFM. See Exhibit "G" p. 8. RLSOF 53: Undisputed. 54. It was HGI who made the assertion that HGI owned Plaintiff' name and likeness; GTFM s

did not make its own independent determination about whether HGI owned those rights. See Exhibit "G" p.24-25. RLSOF 54: Undisputed. 55. Larry Blenden, who is general counsel for GTFM, did not do anything outside of getting

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the representations from HGI to verify that indeed the Globetrotters did have a license to use
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Plaintiff' name, image and likeness. See Exhibit "G" p. 24-28. s RLSOF 55: Dispute as unsupported by the record citation. Mr. Blenden testified: Q: Did GTFM do anything outside of getting the representations from the Globetrotters to verify that indeed the Globetrotters did have the, as their licensed property, the items listed in paragraph B? Mr. Sacks: Object to form. A: I don' recall. t

(Blenden Dep. at 28, Lemon SJ Ex G, at 24-28.) 56. Larry Blenden' duties with GTFM include overseeing legal matters and some of the s

licenses and basically managing the legal affairs of the company. See Exhibit "G" p. 51. RLSOF 56: Undisputed. 57. No one from GTFM contacted any player directly, especially since it was warranted and

represented to GTFM that HGI already had the right to use the players names and likenesses. See Exhibit "G" p. 47-48. RLSOF 57: Undisputed. 58. Mr. Aurum, on behalf of FUBU the Collection, LLC, did not make any effort to contact

any of the former players of the Harlem Globetrotters about their approval of the FUBU clothing line. See Exhibit "I" p.23-24. RLSOF 58: Undisputed, except Mr. Aurum did not testify that his actions were "on behalf of FUBU the Collection LLC." 59. Before the filing of this lawsuit, Mannie Jackson told GTFM that some of the Plaintiffs

were looking to him for some money. See Exhibit "G" p.43. RLSOF 59: Dispute as unsupported by the record citation, but immaterial. Mr. Blenden actually testified: "I didn' have any notice of any claims or that anyone was making a claim, but t maybe before the lawsuit was filed I think Mannie mentioned that some of the Globetrotters

25

were looking to him for some money." (Blenden Dep. at 43, Lemon SJ Ex. G, Doc 206.)
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60.

After some of the Plaintiffs approached Mannie Jackson regarding payment of money,

Mr. Jackson told GTFM that he was going to give the players some money. See Exhibit "G" p. 44. RLSOF 60: Dispute as unsupported by the record citation, but immaterial. Mr. Blenden actually testified: Q: After you had the discussion with Mannie about players were [sic] asking him for money, do you know if he gave the players any money? A: Q: Do I know for sure if he gave the players any money? Or in general did he tell you that he was going to?

A: Did he actually tell me that he was going to give the players some money; he may have mentioned that he was going to give the players some money. But he also told us that he typically would give the players money, the older fellows. (Blenden Dep. at 44, Lemon SJ Ex G, Doc 206.) 61. Daymond Aurum is CEO of FUBU the Collection, LLC. See Exhibit "I", p.7. Mr.

Aurum is in charge of marketing, looking over distribution, and product placement on artists. Id. RLSOF 61: Undisputed. 62. Before entering into the contract with HGI, Mr. Aurum, on behalf of FUBU the

Collection, LLC, attended meetings regarding the formulation of the clothing line, and approved the idea of the Harlem Globetrotters clothing line because he though it would be a good next step to FUBU' Platinum Line. See Exhibit "I" p. 7-8. s RLSOF 62: Undisputed. 63. Michael Syracuse is the chief financial office of HGI. See Transcript of Deposition of

Michael Syracuse, p.9, attached as Exhibit "J". RLSOF 63: Undisputed. 64. Mr. Syracuse is responsible for the financial integrity and accounting records of HGI.

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See Exhibit "J" p. 11. RLSOF 64: Undisputed. 65. Prior to the filing of this lawsuit, Mr. Syracuse may have been aware that a dispute had

arisen with Plaintiff over using his name and a possible lawsuit was looming, and then on October 31, 2003, he sent a letter to Plaintiff stating that the program regarding FUBU merchandise was established as a good will nature and that he was not entitled to any payments. See Exhibit "J" p. 21-38. RLSOF 65: Dispute SOF ¶ 65 to the extent it implies a causal connection between Mr. Syracuse' possible awareness that a dispute had arisen with Plaintiff over the use of his name s and a potential lawsuit, and the letter Mr. Syracuse sent to Plaintiff. Mr. Syracuse testified that he wrote the letter before becoming aware of claims being made by Plaintiffs. (Syracuse Dep. at 22, Lemon SJ Ex. J, Doc 206.) 66. Specifically, the October 31, 2003 letter 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". See Exhibit "J" p. 39-40. Plaintiff received a check for approximately $5,000.00, which he did not cash. RLSOF 66: Dispute the first three sentences to the extent they imply the quoted portion constitutes the entire content of the letter. The full letter is attached as Exhibit 24 to Mr. Syracuse' deposition, Doc 208. Dispute the second sentence as unsupported by deposition, s affidavit, or any other information in the record as required by LRCiv 56(1)(a). Defendants do not dispute that HGI sent Mr. Lemon a check for approximately $5,000 related to the Apparel. (Syracuse Aff. ¶ 12 & Ex. K, Doc 208.) 67. Other than the FUBU clothing line and a bobble head licensing agreement, there have not

been any other merchandising agreements where players or former players received money from HGI. See Exhibit "J" p. 85. RLSOF 67: Undisputed.

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68.

Mannie Jackson is the owner and CEO of HGI. See Exhibit "L", p. 9. RLSOF 68: Dispute in part, but immaterial. Mr. Jackson is the CEO and a shareholder

of HGI. DSOF ¶ 2, Doc 196 (citing Jackson Dep. at 9, Doc 196; Jackson Aff., 10/26/05, ¶¶ 4, 5, Doc 204.) 69. Larry Blenden stated that some of the "big" names from the past Harlem Globetrotters

players would be Meadowlark Lemon, Curly Neal, Geese Ausby, and Marcus Haynes. See Exhibit "G" p. 121. RLSOF 69: Undisputed. 70. When Mr. Jackson purchased the Globetrotters, he considered Meadowlark Lemon,

Marques Haynes, and Curly Neal to be legends of the Harlem Globetrotters. See Exhibit "L" p. 15. RLSOF 70: Undisputed. 71. The best known Globetrotters ever are Meadowlark Lemon and Marques Haynes. See

Exhibit "L" p. 187. RLSOF 71: Undisputed to the extent SOF ¶ 71 represents only Mr. Jackson' opinion. s 72. Meadowlark Lemon is the single most recognized Harlem Globetrotter. See Exhibit "L"

p. 255-256. RLSOF 72: Dispute as incomplete and lacking foundation for anything other than Mr. Jackson' opinion. "He' probably the single most recognized Harlem Globetrotter." (Jackson s s Dep. at 256, Lemon SJ Ex L, Doc 206.) 73. The Harlem Globetrotters are known for their competitive team, contributions to charity,

and being good to kids. See Exhibit "L" p. 31-32. RLSOF 73: Undisputed. 74. Before entering into the agreement with GTFM, HGI did not contact Plaintiff or any

other former players or seek out their permission in any way. See Exhibit "L" p. 204. RLSOF 74: Undisputed.
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75.

At no time from October 15, 1975 through October 14, 1980, was any clothing,

especially sports ware, being sold with the individual player names on it. See Affidavit of Edwin Mutum, ¶ 5, attached as Exhibit "S" RLSOF 75: Dispute. Plaintiff Lemon did not disclose the name of this witness in discovery or in his Fed. R. Civ. P. 26(a)(1) initial disclosures, and this testimony should be stricken. 76. Aside from the FUBU clothing line and some bobble head dolls, HGI has not been

involved in utilizing the plaintiffs names and likenesses. See Exhibit "L" p. 249-250. RLSOF 76: Dispute. Mr. Jackson additionally testified that Plaintiff' name was used in s 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 (DSOF ¶ 32, Doc 196 (citing 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 Plaintiff Lemon is aware (DSOF ¶ 38, Doc 196 (citing Lemon Dep. at 191, Doc 199)). Historically, the Globetrotters have used Plaintiff' name and likeness for a variety of merchandise and promotion activities. s DSOF ¶¶ 24-31, Doc 196 (citing evidence in the record). 77. Not even the clothing sold in the arenas at Harlem Globetrotters events contains

Plaintiff' name and likeness. See Exhibit "L" p. 259. s RLSOF 77: Dispute in part. Mr. Jackson testified that the FUBU Apparel was not sold at Globetrotters events, although other apparel is. (Jackson Dep. at 258-59, Lemon SJ Ex L, Doc 206.) 78. In interviews for the book "Spinning the Globe: The Rise, Fall, and Return to Greatness

of the Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff. See Affidavit of Meadowlark Lemon ¶ 13. RLSOF 78: Disputed. SOF ¶ 78 is a conclusion of law and not a statement of fact. Further, Plaintiff Lemon does not identify in his Statement of Facts, and has never identified,

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what allegedly defamatory statements Mr. Jackson made to Mr. Green. SOF ¶ 78 is also immaterial, since Mr. Lemon did not plead in his complaint that Mr. Jackson made defamatory statements to Mr. Green. 79. The book "Spinning the Globe" is sold on the Harlem Globetrotters website. RLSOF 79: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 80. Mannie Jackson has received a monetary benefit from the book "Spinning the Globe" and

the defamatory statements made against Plaintiff. RLSOF 80: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 81. In a statement that was published in the Arizona Republic on January 17, 2004, Mannie

Jackson made a defamatory statement about Plaintiff. See Article Titled "Globetrotters Call Foul on Meadowlark", attached as Exhibit "T". Specifically, while talking about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter' Mannie Jackson stated s, "he wanted to be the show. We have a strong brand policy instead of a star system, and he wanted more money than I could afford." Id. RLSOF 81: Dispute as unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). Further dispute the legal conclusion that "Mannie Jackson made a defamatory statement about Plaintiff." Further dispute as incomplete. Defendants do not dispute that Mr. Jackson was quoted in the Arizona Republic, but the full statement reported was as follows: "What bothers me is the confusion that has taken place, and I don' get the t sense that they are clearing it up," Jackson said. "He and I talked about him doing it with the Globetrotters, but ultimately he needed to do it on his own, Jackson said. "I wanted him to work to pass the torch to the young fellows. But he wanted to be the show. We have a strong brand policy instead of a star system, and he wanted more money than I could afford."

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Jackson would not disclose how much Lemon sought. "I pray for him that he pulls it off," said Jackson, who played with Lemon in the ` 60s. "If I had the time, I would go out and see a 71-year-old man play. But I think he will find the touring and the business is different from the outside." DSOF ¶ 125, Doc 196 (citing Lemon Dep., Ex. 9, Doc 199.) 82. HGI has a copyright on a red, white and blue signature ball with the Harlem

Globetrotter' block letters on it. See Exhibit "L" p. 241. See Picture of HGI' Trademark, s s attached as Exhibit "U". RLSOF 84: Dispute as unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). Further dispute the description of the logo, but immaterial. The Globetrotters have a registered trademark in their "HAND AND BALL" logo of a red, white, and blue basketball spinning on a finger. (Jackson Aff. ¶ 20.) 83. HGI does not have a copyright on just a plain red, white and blue basketball. See Exhibit

"L" p. 242. RLSOF 83: Undisputed. 84. Plaintiff' logo is a caricature of himself spinning a red, white and blue ball on his s

fingertip. RLSOF 84: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 85. Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. See

Transcript of the Deposition of Meadowlark Lemon, p. 10-13, attached as Exhibit "M". RLSOF 85: Undisputed. 86. The GTFM/FUBU clothing line increased the value of HGI. RLSOF 86: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 87. Prior to this clothing line, Mannie Jackson purchased the Harlem Globetrotters out of

bankruptcy in 1993.
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RLSOF 87: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). Defendants do not dispute that Mannie Jackson & Associates and HGI purchased the Harlem Globetrotters in 1993. (Nikolais Dep. at 11, 19-20 & Ex. 1.) 88. The majority of HGI stock was purchased by a company headed by Roy Disney for

approximately $76 million dollars. RLSOF 88: Dispute as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). Defendants do not dispute that Mannie Jackson recently sold a majority of his HGI stock to HGI Holdings, Inc. 89. Arizona is a community property state. RLSOF 89: Dispute as a conclusion of law, and as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 90. Mannie Jackson' statements and defamatory conduct were made on behalf of the s

community and benefited the community. RLSOF 90: Dispute as a conclusion of law, and as completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). SOF ¶ 90 also does not clarify what statements and conduct are referred to, or who the "community" is. 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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