Free Statement - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff, vs. STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANT GTFM, LLC'S MOTION FOR SUMMARY JUDGMENT Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

HARLEM GLOBETROTTERS INTERNATIONAL, 10 INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL 11 FOUNDATION, INC., an Arizona corporation; MANNIE L. JACKSON and CATHERINE 12 JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability 13 company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business 14 in Arizona; 15 16 17 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 18 Counter-claimant, 19 vs. 20 MEADOWLARK LEMON, a married man, 21 Counterdefendant. 22 23 24 25 26 Case 2:04-cv-00299-DGC Document 248 Defendants.

Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), by and through his attorneys, submits his Statement of Contraverting Facts in Support of his Response to Defendant GTFM, LLC's (hereinafter "GTFM") Motion for Summary Judgment as follows:

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UNDISPUTED FACTS: 1. Plaintiff agrees with ¶ 1 of GTFM's Statement of Facts ("SOF"). 2. Plaintiff agrees with ¶ 2 of GTFM's SOF. 3. Plaintiff agrees with ¶ 3 of GTFM's SOF. 4. Plaintiff agrees with ¶ 4 of GTFM's SOF. 5. Plaintiff agrees with ¶ 5 of GTFM's SOF, however, Plaintiff affirmatively disputes Footnote 1 referenced in ¶ 5. 6. Plaintiff agrees with ¶ 6 of GTFM's SOF. 7. Plaintiff agrees with ¶ 7 of GTFM's SOF. 8. Plaintiff agrees with ¶ 10 of GTFM's SOF. 9. Plaintiff agrees with ¶ 11 of GTFM's SOF. 10. Plaintiff agrees with ¶ 12 of GTFM's SOF. 11. Plaintiff agrees with ¶ 13 of GTFM's SOF. 12. Plaintiff agrees with ¶ 14 of GTFM's SOF. 13. Plaintiff agrees with ¶ 15 of GTFM's SOF. 14. Plaintiff has no personal knowledge regarding ¶ 16 of GTFM's SOF and therefore, does not dispute or agree with the statement therein. 15. Plaintiff has no personal knowledge regarding ¶ 17 of GTFM's SOF and therefore, does not Case 2:04-cv-00299-DGC -2Document 248 Filed 11/23/2005 Page 2 of 17

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dispute or agree with the statement therein. 16. Plaintiff has no personal knowledge regarding ¶ 18 of GTFM's SOF and therefore, does not dispute or agree with the statement therein. 17. Plaintiff has no personal knowledge regarding ¶ 19 of GTFM's SOF and therefore, does not dispute or agree with the statement therein. 18. Plaintiff has no personal knowledge regarding ¶ 20 of GTFM's SOF and therefore, does not dispute or agree with the statement therein. 19. Plaintiff agrees with ¶ 24 of GTFM's SOF. 20. Plaintiff agrees with ¶ 25 of GTFM's SOF. 21. Plaintiff partially agrees with ¶ 26 of GTFM's SOF to the extent that it states Plaintiff was harmed by the Alleged Infringing Goods. Plaintiff agrees that he has been harmed by the Alleged Infringing Goods however; the Plaintiff's statement was taken out of context. Plaintiff asserts he testified that he has been harmed by the Alleged Infringing Goods because GTFM used his name and likeness without his authority, he was not properly compensated for the use of his name and likeness, and he was embarrassed that GTFM was putting his name on clothing that Plaintiff did not approve of. (See Deposition of Meadowlark Lemon, attached as Exhibit "B" p.189-191). 22. Plaintiff agrees with ¶ 28 of GTFM's SOF. 23. Plaintiff agrees with ¶ 29 of GTFM's SOF. 24. Plaintiff agrees with ¶ 30 of GTFM's SOF. Case 2:04-cv-00299-DGC -3Document 248 Filed 11/23/2005 Page 3 of 17

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25. Plaintiff partially agrees with ¶ 31 of GTFM's SOF. Plaintiff agrees that prior to this lawsuit he never took any steps to ask the Globetrotters to stop using his name, image and/or likeness throughout the decades, but disputes the statement insofar as it is general and does not properly characterize the Globetrotters use of Plaintiff's name, image and/or likeness throughout the decades and the reason why he has not objected to that use until the GTFM/HGI licensing agreement. 26. Plaintiff agrees with ¶ 34 insofar as it states that the Globetrotters sent Plaintiff a check for some of the proceeds that HGI received under the HGI/GTFM licensing agreement. Plaintiff

affirmatively asserts that the check was only for five thousand dollars ($5,000) and Plaintiff did not cash the check. (See Affidavit of Meadowlark Lemon, attached as Exhibit "A" ¶ 1). Plaintiff affirmatively disputes any suggestion that the check represented all profits received from styles that included his name and/or likeness. 27. Plaintiff has no personal knowledge regarding ¶ 35-81 of GTFM's SOF and therefore, does not dispute or agree with the statements contained therein. 28. Plaintiff agrees with ¶ 82 of GTFM's SOF. 29. Plaintiff agrees with the statement in ¶ 83 that "The Expert Report seeks to disgorge all gross profits earned by GTFM from the sale of Alleged Infringing Goods in the minimum amount of $1,832,304", however Plaintiff affirmatively disputes the remainder of ¶ 83. 30. Plaintiff agrees with ¶ 84 of GTFM's SOF but also affirmatively asserts that case law allows for Plaintiff to recover damages. (See Abalos Deposition, attached as Exhibit "C" p. 30; Exhibit "M"). -4Document 248

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31. Plaintiff agrees with ¶ 85 of GTFM's SOF. 32. Plaintiff agrees with ¶ 88 of GTFM's SOF. DISPUTED FACTS: 33. Plaintiff disputes Footnote 1, which is referenced in ¶ 5 of GTFM's SOF. Plaintiff affirmatively asserts that he has rights to his player number (36) which he wore as a Harlem Globetrotter player and was retired when he was inducted into the Basketball Hall of Fame. (See Affidavit of Meadowlark Lemon, attached as Exhibit "A" ¶ 2; Transcript of Deposition of Govoner Vaughn, attached as Exhibit "D" p.38). Plaintiff further affirmatively asserts that Plaintiff's number is one of only four Harlem Globetrotters' numbers that have been retired and people associate the number 36 with Plaintiff. (See Exhibit "D" p. 38; Exhibit "A" ¶ 3). 34. Plaintiff disputes ¶ 8 of GTFM's SOF. Plaintiff affirmatively asserts that the retail stores that continue to sell off infringing merchandise are affiliated with GTFM and other FUBU related entities. (See Transcript of Deposition of Oliver Phipps (Plaintiffs' investigator), attached as Exhibit "E" p. 62; Pictures of Bag and Receipt, attached as Exhibit "F"; Email from Ira Sacks dated 9/20/2005, attached as Exhibit "G"). FUBU the Collection retail stores were making sales of infringing garments and hangtags bearing Plaintiffs' names in Manila, Philippines as late as August 2005 that were never disclosed by the FUBU Defendants. (See Exhibit "E" p. 62). The Philippines retailer indicated "FUBU the Collection" on its bags, receipts and signs and FUBU's counsel acknowledges that FUBU the Collection is a "common law mark" owned by the FUBU Defendants. (See Exhibit "F"; See Exhibit "G"). 35. Plaintiff disputes ¶ 9 of GTFM's SOF. Plaintiff affirmatively asserts that the retail sales from the -5Document 248

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retail stores do have an impact on GTFM's present and future revenues because those retail stores are affiliated with GTFM and other FUBU related entities. (See Exhibit "E" p. 62; Exhibit "F"; Exhibit "G"). 36. Plaintiff disputes ¶ 21 of GTFM's SOF. Plaintiff affirmatively asserts that GTFM did enter into the License Agreement blindly as GTFM did not perform its duty of due diligence before entering into the License Agreement with HGI. (See Deposition of Bruce Weisfeld, attached as Exhibit "H" p. 67-68; See Deposition of Lawrence Blenden, attached as Exhibit "I" p. 34-37, 4748; See Deposition of Colleen Lenihan, attached as Exhibit "J" p. 20-21). GTFM did not look at old player contracts before using Plaintiff's name and likeness and never contacted Plaintiff. (Id.). 37. Plaintiff disputes ¶ 22 of GTFM's SOF. Plaintiff affirmatively assets that GTFM never

requested to see the player contracts, and merely relied on the representations of Mannie Jackson. (See Exhibit "H" p. 67-68; See Deposition of Mannie Jackson, attached as Exhibit "K" p. 262). 38. Plaintiff disputes ¶ 23 of GTFM's SOF and affirmatively asserts that GTFM did nothing in the form of `due diligence' to ascertain whether the Licensing Agreement was an infringement of Plaintiff's rights. (See Exhibit "H" p. 67-68; Exhibit "I" p. 34-37, 47-48; Exhibit "J" p. 20-21). 39. Plaintiff disputes ¶ 27 of GTFM's SOF. Plaintiff affirmatively asserts that the Globetrotters only used Plaintiff's name and likeness to endorse companies while he was a player and the Globetrotters have not done so since Plaintiff left the organization. (See Affidavit of Edwin Mutum, ¶ 5, attached as Exhibit "L"; Exhibit "K" p. 249-250, 259).

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40. Plaintiff disputes that portion of ¶ 31 of GTFM's SOF insofar as it is general and does not properly characterize the Globetrotters use of Plaintiff's name, image and/or likeness throughout the decades and the reason why he has not objected to that use until the GTFM/HGI licensing agreement. To Plaintiff's knowledge, since Plaintiff has stopped playing for the Globetrotters, the Globetrotters have not licensed his name, image and likeness until the GTFM/HGI licensing agreement. (See Exhibit "A" ¶ 4). Since Plaintiff left the Globetrotters, the extent of the Globetrotters use of Plaintiff's name, image and/or likeness has been limited to use in connection with Globetrotters programs. (See Exhibit "A" ¶ 5). 41. Plaintiff disputes ¶ 32 of GTFM's SOF. Plaintiff affirmatively asserts that he does currently license his name, jersey number, likeness and/or image. (See Exhibit "A" ¶ 12). 42. Plaintiff disputes ¶ 33 of GTFM's SOF. Plaintiff affirmatively asserts that he submitted

evidence of lost profits as a result of the GTFM/HGI apparel in his Expert Report. (See Plaintiffs' Expert Report, attached as Exhibit "M"). 43. Plaintiff affirmatively disputes the statement in ¶ 83 that the Expert Report seeks to disgorge all gross profits earned by GTFM "despite the total absence of actual injury to plaintiffs, secondary meaning or likely confusion among consumers." Plaintiff affirmatively asserts that he submitted evidence of actual injury. (See Exhibit "M"). Plaintiff also affirmatively asserts that he

submitted evidence that he has met the elements of `secondary meaning and likely confusion'. (See Exhibit "K" p. 15, 138, 187; Exhibit "I" p. 121). 44. Plaintiff disputes ¶ 86 of GTFM's SOF. Plaintiff affirmatively asserts that he has submitted evidence that (i) his names, number, image and likeness has achieved secondary meaning or (ii) act as a source identifier. (See Exhibit "K" p. 15, 138, 187; Exhibit "I" p. 121). Plaintiff asserts Case 2:04-cv-00299-DGC -7Document 248 Filed 11/23/2005 Page 7 of 17

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that he has submitted evidence of his celebrity status and notoriety, which is proof that his name, number and likeness have achieved secondary meaning. (Id.). 45. Plaintiff disputes ¶ 87 of GTFM's SOF and affirmatively asserts that Plaintiff has submitted evidence of his reputation and notoriety. (See Exhibit "K" p. 15, 138, 187; Exhibit "I" p. 121). 46. Plaintiff disputes ¶ 89 of GTFM's SOF and affirmatively asserts that he has submitted evidence on whether purchasers of the FUBU/HGI Apparel were likely to be confused as to the source or sponsorship of the merchandise. (See Exhibit "K" p. 15, 138, 187; Exhibit "I" p. 121). Plaintiff further asserts that he has been inducted into the Basketball Hall of Fame. (See Exhibit "A" ¶ 2, 6). 47. Plaintiff disputes ¶ 90 of GTFM's SOF that Plaintiff has established that the Alleged Trademarks are protectible under the Lanham Act by submitting evidence that consumers likely bought GTFM/HGI Apparel because it contained his name and likeness. (See Exhibit "A" ¶ 2, 3, 6; (See Exhibit "K" p. 15, 138, 187; Exhibit "I" p. 121). 48. Plaintiff affirmatively disputes ¶ 91 of GTFM's SOF. Plaintiff affirmatively asserts that the Expert Report estimates the income Plaintiff lost as a result of GTFM's conduct, what a reasonable royalty would be, and damages by individual plaintiff as much as possible. (See Exhibit "M"). Plaintiff further asserts that it was GTFM who refused to provide information regarding profits broken down by individual plaintiff. (See Weisfeld Deposition, attached as Exhibit "N" p. 28-32, 34-38, 40-50, 53-62, 86-89, 92 -95, 97-100; See Blenden Deposition, attached as Exhibit "O", p. 31-33, 37-40, 45-46, 50, 52-54, 65-66, 68-69, 74-76, 78-81, 87-88, 95-96, 99-103, 116-119, 145-149, 150-152, 166-172; Exhibit "C", p. 40, 102-105, 111-114, 133135, 137-141). Case 2:04-cv-00299-DGC -8Document 248 Filed 11/23/2005 Page 8 of 17

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49. Plaintiff disputes ¶ 92 of GTFM's SOF. Plaintiff affirmatively asserts that his expert determined damages by using an appropriate standard and included sales of merchandise where either the clothing itself contained a plaintiffs' name or likeness or because it is possible that it contained an infringing hangtag. (See Exhibit "C", p. 186; Copies of Hang-tags, attached as Exhibit "P"; Pictures of Hang-tags Attached to otherwise Non-infringing Clothing (which now makes it infringing), attached as Exhibit "Q"). 50. Plaintiff disputes ¶ 93 of GTFM's SOF. Plaintiff affirmatively asserts that he has submitted evidence that otherwise non-infringing clothes had hang-tags which contained Plaintiff's name and likeness. (See Exhibit "Q"). The attachment of the hang-tags makes the clothing an infringing good. (See Exhibit "C", p. 186; Exhibit "P"). Plaintiff affirmatively asserts that apparel sold by GTFM had hangtags listing the specific players' names, including Meadowlark Lemon, which were used as marketing tools. (See Exhibit "H" p. 55-61; Exhibit "P"). 51. Plaintiff disputes ¶ 94 of GTFM's SOF. Plaintiff affirmatively asserts he has submitted evidence that hang-tags were if fact used on such styles and that the hang-tags were used as marketing tools. (See Exhibit "Q"; Exhibit "H" p. 55-61). 52. Plaintiff disputes ¶ 95 of GTFM's SOF. Plaintiff affirmatively asserts that the actual statement of Ms. Abalos was as follows: Q: Is it fair to say that a license for the plaintiffs' name, likenesses, and numbers alone without the right to use Harlem Globetrotters with it would be worth a lot less than 8 to 10 percent? A: Perhaps. -9Document 248

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(See Exhibit "C" p. 32). Plaintiff further states that he was not required to determine what a reasonable royalty rate was for the use of Plaintiff's name, number and likeness as Plaintiff used a different methodology in computing the amount of damages. (See Exhibit "C" p. 32; Exhibit "M"). 53. Plaintiff disputes ¶ 96 of GTFM's SOF. Plaintiff affirmatively asserts that he was not required to determine what a reasonable royalty rate was for the use of Plaintiff's name, number and likeness as Plaintiff used a different methodology in computing the amount of damages. (See Exhibit "C" p. 32; Exhibit "M"). 54. Plaintiff disputes ¶ 97 of GTFM's SOF. Plaintiff asserts that the Expert Report does determine the loss inflicted on Plaintiff as a result of the GTFM/HGI Apparel. (See Exhibit "C" p. 55-56; Exhibit "M"). 55. Plaintiff disputes ¶ 98 of GTFM's SOF. Plaintiff affirmatively asserts that GTFM voluntarily put Plaintiff's name and likeness on clothing and did it without caring whether they were infringing Plaintiff's rights. (See Exhibit "H" p. 67-68; Exhibit "K" p. 262; Exhibit "J" p. 22). ADDITIONAL FACTS: 56. 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 Exhibit "A" ¶ 6). 57. While playing for the Harlem Globetrotters, Plaintiff wore # 36 on his jersey. (See Exhibit "A" ¶ 2) -10Document 248 Filed 11/23/2005

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58. Plaintiff's #36 has been retired. (See Exhibit "D" p. 38; Exhibit "A" ¶ 2). Plaintiff's number is one of only four Harlem Globetrotters' numbers that have been retired. (See Exhibit "D" p. 38). 59. People associate # 36 with Plaintiff. (See Exhibit "A"¶ 3). 60. The clothing bearing Plaintiff's name, likeness, and player number sold very well, and was the highest selling of all players. (See Exhibit "K" p. 138). 61. 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 "I" p. 121). 62. When Mr. Jackson purchased the Globetrotters, he considered Meadowlark Lemon, Marques Haynes, and Curly Neal to be legends of the Harlem Globetrotters. (See Exhibit "K" p. 15). 63. The best known Globetrotters ever are Meadowlark Lemon and Marques Haynes. (See Exhibit "K", p. 187). 64. Meadowlark Lemon is the single most recognized Harlem Globetrotter. (See Exhibit "K", p. 255-256). 65. At the FUBU wholesale level, GTFM's estimate of the total wholesale of all HGI merchandise and apparel was approximately twenty million dollars. (See Exhibit "H" p. 86-87.). 66. The clothing line had a projected sales volume of twenty million dollars. (See Transcript of Deposition of Daymond Aurum, attached as Exhibit "R", p. 40-41.). 67. The Harlem Globetrotters royalty analysis from GTFM for January 2002 through November 2003 shows net sales on men's and boy's clothing line alone for the first two years of $22.6 million. (See Exhibit "R" p. 45.). 68. 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 "K" p.121-122.). -11Document 248 Filed 11/23/2005

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69. 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 "K" p. 122.). 70. Mannie Jackson stated that the HGI/GTFM licensing agreement was a "100 million dollar" deal (See ESPN article, attached as Exhibit "S"). 71. GTFM continually refused to reliably quantify sales. (See Exhibit "N" p. 28-32, 34-38, 40-50, 53-62, 86-89, 92-95, 97-100; Exhibit "O", p. 31-33, 37-40, 45-46, 50, 52-54, 65-66, 68-69, 7476, 78-81, 87-88, 95-96, 99-103, 116-119, 145-149, 150-152, 166-172; Exhibit "C", p. 40, 102105, 111-114, 133-135, 137-141). 72. Because of GTFM's refusal to reliably quantify sales, Plaintiffs' expert was unable to completely calculate compensation based solely on individual Plaintiffs. (See Exhibit "C", p. 40, 102-105, 111-114, 115, 119-121, 130, 133-135, 137-141, 144, 148-149, 155-156, 184-187, 207208). 73. Plaintiff is no longer involved with the Harlem Globetrotter organization. (See Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 13; Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim filed on October 25, 2004 ¶ 13; Exhibit "A" ¶ 7.) 74. Plaintiff never signed a contract with the original Harlem Globetrotter's owner or HGI, in which he signed away his rights in perpetuity for the use of his name and likeness. (See Exhibit "A" ¶ 8). 75. Plaintiff has no agreements/contracts with HGI or GTFM allowing license or use of his identity, attributes of identity, name, images, or likenesses. (See Exhibit "A" ¶ 9; Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 14.) -12Document 248 Filed 11/23/2005

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76. 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 Exhibit "L" ¶ 5). 77. Aside from the FUBU clothing line HGI has not been involved in utilizing the plaintiffs' names and likenesses. (See Exhibit "K" p. 249-250.). 78. Not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiff's name and likeness. (See Exhibit "K" p. 259). 79. Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. (See Exhibit "B" p. 10-13). 80. GTFM simply trusted that Mannie Jackson, as CEO and owner of the Harlem Globetrotters, had the right to use Plaintiff's name and likeness. (See Exhibit "H" p. 67-68). 81. GTFM included an indemnification agreement in their contract with HGI regarding past, present, or future Globetrotters players because GTFM did not receive every player's contract that played for the Globetrotters. (See Exhibit "I" p. 34-35). 82. 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 "K" p. 262). 83. 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 Exhibit "J" p. 20-21). 84. 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 "J" p. 22.).

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85. Simply because Mannie Jackson was the owner of the Globetrotters and was a former player, GTFM relied on Mannie Jackson's assertions that every player signed the same contract and every player had given up his rights to HGI to use his name. (See Exhibit "I" p. 35-36.). 86. Larry Blenden does not recall seeing any player contracts that were signed by the players ultimately used in the clothing line. (See Exhibit "I" p. 36-37.). 87. 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 "I" p. 47-48.). 88. It was HGI who made the assertion that HGI owned Plaintiff's name and likeness; GTFM did not make its own independent determination about whether HGI owned those rights. (See Exhibit "I" p. 24-25). 89. Larry Blenden, who is general counsel for GTFM, did not do anything outside of getting the representations from HGI to verify that indeed the Globetrotters did have a license to use Plaintiff's name, image and likeness. (See Exhibit "I" p. 24-28). 90. The contract between GTFM and HGI was singed in June 2002. (See Exhibit "I" p. 12-13). 91. HGI entered into an agreement with GTFM and others to license, develop, create, 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 Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. (See GTFM's Answer to Plaintiff's Second Amended Complaint ¶ 15; HGI's Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim filed October 25, 2004 ¶ 15 & ¶ 27). -14Document 248 Filed 11/23/2005

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92. No one from GTFM contacted Plaintiff for his input or approval regarding the apparel produced by GTFM with his name on it. (See Exhibit "H" p. 112; Exhibit "A" ¶ 10). 93. During the contract negotiations with GTFM, Mannie Jackson, on behalf of HGI, in which Mannie Jackson represented that HGI had the right to use player's names and likenesses. (See Exhibit "H" p. 65-66). Specifically, Mannie Jackson stated that all past Harlem Globetrotter players signed a contract with the original Harlem Globetrotter's owner, in which the players signed away their rights in perpetuity for the use of their names and likenesses. Id. 94. Plaintiff first became aware of HGI and GTFM's actions in producing a clothing line displaying his name and likeness in or about the end of 2003. (See Exhibit "A" ¶ 11; Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24). 95. 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's name, image, likeness, number, notoriety, and goodwill. (See Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24; Letter to Mannie Jackson, CEO of HGI, from Rosenquist & Associates dated December 23, 2003, attached as Exhibit "T"). 96. Defendants did not respond to the inquiry by the stated deadline of January 15, 2004. (See Exhibit "T"; See Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24). DATED this 23rd day of November 2005. By: /s/ Anders Rosenquist ROSENQUIST & ASSOCIATES Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. , 2005, a true and correct copy of the foregoing 2. I hereby certify that on November 23rd STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANT GTFM, LLC's MOTION FOR SUMMARY JUDGMENT was sent by postage-prepaid first-class mail, addressed to: Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants FUBU the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC Clay Townsend, Esq. Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 16th Floor Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders -16Document 248 Filed 11/23/2005

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC -17Document 248 Filed 11/23/2005 Page 17 of 17 /s/ Florence M. Bruemmer Florence M. Bruemmer Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 23rd day of November 2005, at Phoenix, Arizona.