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 No. CV '04 0299 PHX DGC

7 MEADOWLARK LEMON, a married man, 8 9

Plaintiff, vs. HARLEM GLOBETROTTERS

10 INTERNATIONAL, INC., an Arizona

11 INTERNATIONAL FOUNDATION, INC., an 12 and CATHERINE JACKSON, husband and wife; 13 limited liability company doing business in

corporation; HARLEM GLOBETROTTERS

Arizona corporation; MANNIE L. JACKSON

STATEMENT OF FACTS PURSUANT TO LOCAL RULE 1.10(l)(1) IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

FUBU THE COLLECTION, LLC, a New York Arizona; GTFM, LLC, a New York limited Defendants.

14 liability company doing business in Arizona; 15 16 17 HARLEM GLOBETROTTERS 18 corporation, 19 20 vs. 21 MEADOWLARK LEMON, a married man, 22 23 24 25 26

INTERNATIONAL, INC., an Arizona Counter-claimant,

Counterdefendant. Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), by and through his attorneys and pursuant to Local Rule 1.10(l)(1) of the United States District Court for the District of Arizona, submits his Statement of Facts in Support of Motion for Summary Judgment
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against Harlem Globetrotters International, Inc. (hereinafter collectively with other party Defendants as "Defendants" or individually "HGI") and GTFM, LLC and FUBU the Collection, LLC (hereinafter collectively with other party Defendants as "Defendants" or individually "GTFM") as follows: 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's Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim ¶11, attached as Exhibit "D"; Plaintiff's Second Amended Complaint ¶ 4, attached as Exhibit "B"; See Affidavit of Meadowlark Lemon ¶ 1. 2. Plaintiff was also employed by the company owning the "Harlem Globetrotters" as a coach for the 1976-1977 season. See Exhibit "D" ¶11. 3. Plaintiff is no longer involved with the Harlem Globetrotter organization. See Exhibit "B" ¶ 13; Exhibit "D" ¶ 13; See Affidavit of Meadowlark Lemon ¶ 2. 4. 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 Affidavit of Meadowlark Lemon ¶ 4, 5, 7, 8. 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. 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
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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. 7. While playing for the Harlem Globetrotters, Plaintiff wore # 36 on his jersey. See Spreadsheet for Years Plaintiff's Played/Coached with the Globetrotters, attached as Exhibit "N"; Transcript of Deposition of Govoner Vaughn. 8. Plaintiff's #36 has been retired. See Transcript of Deposition of Govoner Vaughn, p. 38, attached as Exhibit "O". Plaintiff's number is one of only four Harlem Globetrotters' numbers that have been retired. Id. 9. People associate # 36 with Plaintiff. See Affidavit of Meadowlark Lemon ¶ 15. 10. 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. Meadowlark Lemon ¶ 11; See Exhibit "B" ¶ 24. 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's name, image, likeness, number, notoriety, and goodwill. See Exhibit "B" ¶ 24; Letter to Mannie Jackson, CEO of HGI, from See Affidavit of

Rosenquist & Associates dated December 23, 2003, attached as Exhibit "C"; See Exhibit "D" ¶ 24. 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.
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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's 1975 contract as the authority to use/license Plaintiff's name, likeness, and player number on a clothing line. See Letter from Garvey & Stoddard dated September 30, 2004, attached as Exhibit "H". That excerpted paragraph from Plaintiff's 1975 Contract states that the Harlem Globetrotters only have the right to use Plaintiff's name, likeness, and player number to the extent they are put to the same uses as they were put prior to the termination of the contract. See Exhibit "H". 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. 15. The contract between GTFM and HGI was singed in June 2002. See Exhibit "G" p. 1213. 16. 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, attached as Exhibit "E"; See Exhibit "D" ¶ 15 & ¶ 27.

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17. HGI has profited from the sales of the clothing bearing Plaintiff's name and likeness. See ESPN article, attached as Exhibit "P"; Spreadsheet of FUBU Sales, attached as Exhibit "Q". 18. GTFM paid a licensing fee to HGI. See Transcript of Deposition of Mr. Wiesfeld, attached as Exhibit "F", p. 95-96. 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". 20. In the contract between GTFM and HGI, there are no specific player's names listed to be used in the clothing line (specifically named the Platinum FUBU Harlem Globetrotters Line). See Exhibit "G" p. 19-20. 21. Bruce Wiesfeld is president of GTFM and most of the related companies including GTFM, Inc. and FUBU. See Exhibit "F" p. 7-8. Mr. Wiesfeld is also a lawyer. See Exhibit "F" p. 62. 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. 23. FUBU the Collection, LLC participated in the design and marketing of the clothing line. SOF ¶ 25, 29. 24. GTFM began selling the Harlem Globetrotters apparel sometime in 2001 or 2002. See Exhibit "F" p. 25-26.
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25. The clothing line bearing Plaintiff's name and jersey number have been marketed, offered for sale and sold in interstate commerce in the United States. See Exhibit "D" ¶ 27; Samples of Clothing, attached as Exhibit "R". 26. The Harlem Globetrotter's apparel sold by GTFM had hangtags listing the specific 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". 27. GTFM's purpose of including the individual players names on the hang tags of the 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. 28. 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 "F" p. 86-87. 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. 30. 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 "I" p. 45. 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.

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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. 33. The clothing bearing Plaintiff's name, likeness, and player number sold very well, and was the highest selling of all players. See Exhibit "L" p. 138. 34. When the computer animated drawings of the apparel containing Plaintiff's and other player's names were generated, they were shown to GTFM for approval, and, in some instances, to HGI for approval. See Exhibit "F" p. 97-99. 35. Some of the apparel created by GTFM was shown to HGI before it was actually sold. See Exhibit "F" p. 111. 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. 10-11. 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. 18-20. 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.

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39. HGI will continue to use Plaintiff's name, image, jersey number, likeness, goodwill and notoriety as a Harlem Globetrotter for its own commercial benefit. See Exhibit "D" ¶ 19. 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. 41. Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiff's name. See Exhibit "G" p. 46. 42. When GTFM learned about the player dispute, the company's reaction was that the 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. 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. 44. This was GTFM's first contract with HGI. See Exhibit "F" p. 102. 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's names and 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's owner, in which the players signed away their rights in perpetuity for the use of their names and likenesses. Id.
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46. 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 "F" p. 6768. 47. GTFM included an indemnification agreement in their contract with HGI regarding past, present, or future Globetrotter's players because GTFM did not receive every player's contract that played for the Globetrotter's. See Exhibit "G" p. 34-35. 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. 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". 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. 51. 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 "G" p. 35-36.
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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. 53. Lawrence Blenden is general counsel for GTFM. See Exhibit "G" p. 8. 54. 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 "G" p.24-25. 55. 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 "G" p. 24-28. 56. Larry Blenden's duties with GTFM include overseeing legal matters and some of the licenses and basically managing the legal affairs of the company. See Exhibit "G" p. 51. 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. 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. 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.

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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. 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. 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's Platinum Line. See Exhibit "I" p. 7-8. 63. Michael Syracuse is the chief financial office of HGI. See Transcript of Deposition of Michael Syracuse, p.9, attached as Exhibit "J". 64. Mr. Syracuse is responsible for the financial integrity and accounting records of HGI. See Exhibit "J" p. 11. 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. 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.
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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. 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. 68. Mannie Jackson is the owner and CEO of HGI. See Exhibit "L", p. 9. 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. 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. 71. The best known Globetrotters ever are Meadowlark Lemon and Marques Haynes. See Exhibit "L" p. 187. 72. Meadowlark Lemon is the single most recognized Harlem Globetrotter. See Exhibit "L" p. 255-256. 73. The Harlem Globetrotters are known for their competitive team, contributions to charity, and being good to kids. See Exhibit "L" p. 31-32. 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.

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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" 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. 77. Not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiff's name and likeness. See Exhibit "L" p. 259. 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. 79. The book "Spinning the Globe" is sold on the Harlem Globetrotters website. 80. Mannie Jackson has received a monetary benefit from the book "Spinning the Globe" and the defamatory statements made against Plaintiff. 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's, Mannie Jackson stated "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.

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82. HGI has a copyright on a red, white and blue signature ball with the Harlem Globetrotter's block letters on it. Trademark, attached as Exhibit "U". 83. HGI does not have a copyright on just a plain red, white and blue basketball. See Exhibit "L" p. 242. 84. Plaintiff's logo is a caricature of himself spinning a red, white and blue ball on his fingertip. 85. Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. See See Exhibit "L" p. 241. See Picture of HGI's

Transcript of the Deposition of Meadowlark Lemon, p. 10-13, attached as Exhibit "M". 86. The GTFM/FUBU clothing line increased the value of HGI. 87. Prior to this clothing line, Mannie Jackson purchased the Harlem Globetrotters out of bankruptcy in 1993. 88. The majority of HGI stock was purchased by a company headed by Roy Disney for approximately $76 million dollars. 89. Arizona is a community property state. 90. Mannie Jackson's statements and defamatory conduct were made on behalf of the community and benefited the community DATED this 28th day of October 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. 2. I hereby certify that on October 28, 2005, a true and correct copy of the foregoing STATEMENT OF FACTS IN SUPPORT OF 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
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Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders 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 28th day of October 2005, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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