Free Reply in Support of Motion - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: 602 257-5200 Facsimile: 602 257-5299 Karl M. Tilleman 013435 P. Bruce Converse 005868 Jason Sanders 018600 Attorneys for Defendants Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson DREIER LLP 499 Park Avenue New York, New York 10022 Telephone: 212328-6100 Facsimile: 212 328-6101 Ira S. Sacks, admitted pro hac vice

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Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et al., Plaintiffs, vs. Harlem Globetrotters International, Inc., et aI. Defendants. DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW Nos. CV-04-0299 PHX DOC and CV-04-1023 PFIX DGC

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I.

PLAINTIFF CONSENTED TO THE USE OF HIS NAME THROUGH HIS 1975 PLAYER CONTRACT. A. No Reasonable jury Could Have Found That HGI Did Not Purchase Plaintiffs Player Contract.

It remains impossible for any reasonable juror to have concluded that HUl failed to purchase plaintiffs player contract from HGI's predecessors. NatWest the 6 seller and HUT the buyer agreed that their intent in entering into the Asset Purchase Agreement was to transfer "all" of the Globetrotters' assets from NatWest to HUT, 8 including all former player contracts. Mot. at 3-4 The sellers testified, without

reservation, that they sold all of the Globetrotter assets to HGI: 10 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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0: Did Mr. Mathieson and Mr. Jackson ask you and the newco IBC for all the assets you had? A: Yes. 0: Did you give all the assets? A: That was our intention, to give them all the assets. 0: So that all assets you had went to the Harlem Globetrotters? A: Yes. 0: Would it be your testimony that if there were other license agreements, for example, that they would be included under the footnote that the Globetrotters received all assets? A: Yes, that was the intent. Mot. at 4, citing Nikolis Depo. at 40:7-17; Horton Depo. at 57:14-25 Mr. Jackson likewise testified that he bought all of the team's assets, including the player contracts: 0. Was it your intention to purchase all of the licensing rights of former and current players in that process? A: Just so you know and everyone knows, there was never any intention to buy anything other than the assets of the Harlem Globetrotters. It was an asset purchase. We bought the assets of the company.
.. .

Mot. at 4; 1/24/07 am tr. Ex. 2 to Mot. at 28:3-21

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There was absolutely no contrary extrinsic evidence from any source whether from seller or buyer

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that the player contracts were not conveyed to HGI.

The only contrary argument came from plaintiff and his counsel even though neither of them had any involvement in the sale of the Globetrotters' assets to HGI. As a stranger to that transaction, plaintiff does not have the right to alter the terms agreed upon by the sellers and the buyer even if certain provisions could be interpreted differently by nonparties. Nadal v. Childs Securities Corp., 239 N.Y.S.2d 959, 964 N.Y. App. Div. 1963 general release that was broad enough on its face to release claim by plaintiff would not justify dismissal due to allegations that the parties niust have intended a more narrow interpretation; Taylor v. State Farm, 175 Ariz. 148, 153 1993 "If, for example, parties use language that is mutually intended to have a special meaning, and that meaning is proved by credible evidence, a court is obligated to enforce the agreement according to the parties' intent, even if the language ordinarily might mean something different"; In re Redpath Computer Services, Inc., 181 B.R. 975, 980 D. Ariz. 1995 same; Restatement Second of Contracts

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& cmt c "Where the

parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning" and the "mutual understanding of the parties prevails even where the contractual term has been defined differently [eveni by statute or administrative regulation". Plaintiff erroneously claims that the fact that the court previously found the Asset Purchase Agreement to be ambiguous "alone precludes Defendants from receiving judgment as a matter of law." Resp. at 6 The court specifically ruled that because the Agreement was ambiguous, the intent of the parties to the transaction would have to be determined from the presentation of extrinsic evidence at trial. Dkt. # 425 at 14-15, citing Hudson-Port Ewen Assocs. v. Kuo, 165 A.D.2d 301, 303 N.Y. App. Div. 1991 question is for the jury where contract is ambiguous and the intent of the parties is to be proved by extrinsic evidence.
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The entire purpose of the
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construction of the contract, including the consideration of extrinsic evidence, is to 2
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reach "a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations." Hudson-Port Ewen, 165 A.D.2d at 303-04 emphasis added citation omitted. The extrinsic evidence presented at trial was so one-sided that it does not permit any conclusion other than that HUT purchased all of the Globetrotters' assets, including plaintiffs player contract. Accordingly, the Court should determine as a matter of law that HGI and Mr. Jackson acquired plaintiffs player contract. B. No Reasonable Juror Could Conclude that the FUBU Apparel Was Not the "Same Use" as the Uses to Which Plaintiff's Name, Likeness, and Image Were Put While He Was a Player.

Plaintiffs response erroneously claims, without any citation to the record, "that the Globetrotters never sold any clothing with his, or any other player's, name and number on it while he was a player." Resp. at 4 In fact, plaintiffspecifically testified that the Globetrotters had sold clothing bearing his name during his playing days: 0: A: Mr. Lemon, you've testified that the Harlem Globetrotters marketed T shirts, for example, with your name on it when you were playing. They sold them at the game, yes.

2/6/07 tr. Ex. 4 to the Motion at 134:21-24. Plaintiff also completely ignores the evidence that, during his playing days, the Globetrotters sold iron-on transfers that displayed his name and likeness: 0: Finally, Mr. Lemon, isn't it true that while you were playing for the team, the Harlem Globetrotters used your name, likeness, and image on ironon[s].
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A:

it did happen with iron-ons.

Id. at 154:20-24 Plaintiff also tries to brush aside the undisputed evidence that his name and likeness were used on "Globetrotter programs sold at the games, basketball trading cards, posters, a record album cover, a viewmaster, a thermos, a lunchbox, comic books, in a cartoon, and in a board game." irrelevant. Resp. at 10 This evidence is not

It is direct evidence that, during plaintiffs playing days, his name and
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likeness were placed on all kinds of merchandise sold to the public, including clothing. Selling merchandise, including t-shirts and iron-ons that resulted in plaintiffs name and likeness appearing on clothing sold to the public, is clearly putting the plaintiffs name and likeness to the exact same use as in the FUBU line. No reasonable jury could have concluded otherwise. Plaintiff argues that the "same use" language found in his player contract should have the narrowest meaning imaginable. Plaintiff would have this court believe that the "same use" language means that unless the Globetrotters previously had a licensing deal with a clothing retailer to sell jerseys with plaintiffs naPe on the back around the world, the Globetrotters had no right to do so with the FUBU line. That is an

unrealistic and unsupported view of the "same use" language. Placing plaintiffs name and likeness on the FUBU apparel for sale to the public is no different than placing plaintiffs name on t-shirts, iron-ons, posters, trading cards, record albums, Viewmasters, cartoons, lunchboxes, comic books, and board games sold to the public. The extensive use of plaintiffs name on merchandise during his playing days clearly brought the use of plaintiffs name on the FUBU apparel within the scope ofthe license granted in plaintiffs player contract. II. NO REASONABLE JUROR COULD CONCLUDE THAT PLAINTIFF DID NOT CONSENT TO THE USE OF HIS NAME, LIKENESS, AND IMAGE THROUGH HIS CONDUCT AND THE COLLECTIVE BARGAINING AGREEMENT. In their Motion for Judgment as a Matter of Law, Defendants set forth the undisputed evidence demonstrating that, through his actions over the past 25 years, plaintiff consented to the use of his name on the FUBU apparel. Mot. at 1-3 Plaintiff admits that, after the end of his playing days, he monitored the Globetrotters' use of his name as much as he could. Resp. at 4 Plaintiff also concedes that, although he knew through his monitoring that the Globetrotters had continued to use his name, likeness, and picture "all over" the place, he never told the Globetrotters to stop or took any steps to stop them. Mot. at 2
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Plaintiff also concedes that, even after he learned that his name was being used on some of the FUBU apparel, he said nothing. His justification is that, despite having multiple meetings with Mr. Jackson and having attended numerous functions with Mr. Jackson, he could never find the right time to say something. Resp. at 5 That is simply not believable. The real reason that plaintiff said nothing is that he knew that the use of his name on some of the FUBU apparel was absolutely consistent with the Globetrotters' prior sales oft-shirts and iron-ons bearing his name. Plaintiff claims that, although he did not immediately object to the use of his name on the FUBU apparel, "soon after" he learned about it; "he consulted with counsel who notified Defendants of his objection." Resp. at 5-6 Noticeably absent from plaintiffs argument is any supporting record citation. The reason is that the undisputed evidence in the record demonstrates that neither plaintiff nor his counsel demanded that HUT stop using plaintiffs name on the FUBU apparel until several months later when plaintiff filed his lawsuit. 108:17-23 The bottom line is that, after learning of the use of his name on some of the FUBU apparel, plaintiff had many opportunities to tell Mr. Jackson that he objected to the use of his name. Plaintiff never did. Instead, he repeatedly accepted personal benefits from Mr. Jackson without saying anything to him or anyone else with the Globetrotters objecting to the use of his name on the FUBU apparel. Plaintiffs silence is clear evidence of his consent. Plaintiff also consented to the use of his name pursuant to a Collective Bargaining Agreement. Plaintiff testified that, during his playing days, he was a 2/6/07 tr. Ex. 4 to the Motion at

member and the vice president of the players' union. 2/7/07 tr. at 15:14-25 It is undisputed that the Collective Bargaining Agreements that governed the labor relationship between the Globetrotters and the players' union while plaintiff was a team member contain royalty provisions that specifically authorized the sale of clothing manufactured, or licensed for manufacture, by the team for sale to the public. Trial
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Exs. 1, 4 and 692 at ¶ 14.12 Accordingly, the evidence demonstrates that plaintiff consented to the use of his name on the FUBU apparel. No reasonable juror could have found otherwise. III. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATFER OF LAW ON PLAINTIFF'S DAMAGES CLAIM. Defendants' Motion for New Trial demonstrates that the jury's damage verdict plainly ignored the Court's damages instruction and failed to take intp account the clear and undisputed evidence of GTFM's expenses when calculating Defendants' net profits. Plaintiffs' response to the damages section of Defendants' Motion for

Judgment as a Matter of Law makes the same arguments as those set forth in plaintiffs response to Defendants' Motion for New Trial. Accordingly, for the sake of brevity, Defendants incorporate their Reply in Support of Motion for New Trial as though fully set forth here. Defendants maintain their position that they are entitled to judgment as a matter of law on plaintiffs compensatory damages claim. At most, a nominal damages award is appropriate.

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Conclusion For the foregoing reasons, the Court should vacate the compensatory damages verdict against the Defendants and grant judgment as a matter of law to Defendants on plaintiffs claim for invasion of the right of publicity.

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DATED this 26th day of March 2007.

STEPTOE & JOHNSON LLP

By: /s/ Karl M. Tilleman Karl M. Tilleman P. Bruce Converse Jason Sanders 201 East Washington St., Suite 1600 Phoenix, Arizona 85004-2382 kti1lemansteptoe.com pbconverseestePtoe.cQrn jsandersstevtoe.com Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DREIR LLP

By:

/s! Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 [email protected]

Attorneys for Defendant GTFM, LLC

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CERTIFICATE OF SERVICE I hereby certify that on 26th day of March 2007, a true and correct

copy of the foregoing Motion was electronically transmitted to the Clerk's Office using the CM/BCE System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand: sanandädreierllp.com Florence M. Bruemmer: florencebruemmerlaw.com Edward R. Garvey: gveygmmattorneys.com, Christa 0. Westerberg: westerberggmmattorneys.com mcneilgmmattornevs.com Robert Williams Goldwater III: rgegoldwaterlaw.com Ray Kendall Harris: rharrisfclaw.com mtolliveuWfclaw.com Joel Louis Herz: jpeljoelherz.com, paralegaUWioelherz.com Alec R. Hillbo: ahillboWfclaw.com dperkinsWfclaw.com Brandon Scott Peters: bpetersäiforthepeople.com pptersgoldwaterlaw.com blundeenCägoldwaterlaw.com Anders V. Rosenquist, Jr: avrlrücox.net Ira S. Sacks: isacksädreierllp.com Clay M. Townsend: ctoyendforthepeople.com vbraeleyThforthepeopk,com lcowanforthepeople.com Jason R. Leonard: jason.lconardjrlhe1ps.com infoThgoldwaterlaw.com stacie.schuckWirlhelos.com By: /s/ Karl Tilleman Karl Tilleman

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