1 Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 2 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 3 Attorneys for Plaintiff

4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA

6 MEADOWLARK LEMON, a married man, Case No. CV 04-299 PHX-DGC and CV 04 7 Plaintiff, 1023 PHX-DGC

8 vs.

9 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM STATEMENT OF CONTRAVERTING 10 GLOBETROTTERS INTERNATIONAL FACTS IN SUPPORT OF PLAINTIFF FOUNDATION, INC., an Arizona corporation; MEADOWLARK LEMON’S RESPONSE TO 11 MANNIE L. JACKSON and CATHERINE DEFENDANTS HARLEM JACKSON, husband and wife; FUBU THE GLOBETROTTERS INTERNATIONAL, 12 COLLECTION, LLC, a New York limited liability INC., HARLEM GLOBETROTTERS company doing business in Arizona; GTFM, LLC, a INTERNATIONAL FOUNDATION, AND 13 New York limited liability company doing business MANNIE L. & CATHERINE JACKSON’S in Arizona; MOTION FOR SUMMARY JUDGMENT 14 Defendants. 15

16 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 17 Counter-claimant, 18 vs. 19 MEADOWLARK LEMON, a married man, 20 Counterdefendant. 21

22 Plaintiff Meadowlark Lemon (hereinafter “Mr. Lemon” or “Plaintiff”), hereby submits his 23 Statement of Contraverting Facts in Support of his Response to Defendants Harlem Globetrotters 24 International, Inc., Harlem Globetrotters International Foundation, and Mannie L. & Catherine Jackson’s 25 Motion for Summary Judgment (hereinafter collectively as “Defendants”) as follows: 26

Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 1 of 28

1 UNDISPUTED FACTS:

2 1. Plaintiff agrees with ¶ 1 of Defendant’s Statement of Facts (“Defendants’ SOF).

3 2. Plaintiff agrees with ¶ 3 of Defendants’ SOF. 4 3. Plaintiff agrees with ¶ 6 of Defendants’ SOF but affirmatively asserts that Arizona is a 5 Community Property state. 6 4. Plaintiff agrees with ¶ 7 of Defendants’ SOF. 7

8 5. Plaintiff agrees with ¶ 8 of Defendants’ SOF.

9 6. Plaintiff agrees with ¶ 18 of Defendants’ SOF.

10 7. Plaintiff agrees with ¶ 24 of Defendants’ SOF.

11 8. Plaintiff agrees with ¶ 26 of Defendants’ SOF. 12 9. Plaintiff agrees with ¶ 27 of Defendants’ SOF and to clarify, Plaintiff affirmatively asserts that 13 that Plaintiff only appeared in the endorsement advertisements while he was a Globetrotter 14 player. 15 10. Plaintiff agrees with ¶ 28 of Defendants’ SOF and to clarify, Plaintiff affirmatively asserts that 16

17 that Plaintiff only appeared in the television programs and movies while he was a Globetrotter

18 player.

19 11. Plaintiff agrees with ¶ 29 of Defendants’ SOF.

20 12. Plaintiff agrees with ¶ 31 of Defendants’ SOF. 21 13. Plaintiff agrees with ¶ 33 of Defendants’ SOF. 22 14. Plaintiff agrees with ¶ 34 of Defendants’ SOF. 23 15. Plaintiff agrees with ¶ 38 of Defendants’ SOF. 24 16. Plaintiff agrees with ¶ 39 of Defendants’ SOF. 25

26 17. Plaintiff agrees with ¶ 41 of Defendants’ SOF.

-2- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 2 of 28

1 18. Plaintiff agrees with ¶ 43 of Defendants’ SOF.

2 19. Plaintiff agrees with ¶ 53 of Defendants’ SOF.

3 20. Plaintiff agrees with ¶ 60 of Defendants’ SOF. 4 21. Plaintiff agrees with ¶ 61 of Defendants’ SOF. 5 22. Plaintiff agrees with ¶ 62 of Defendants’ SOF. 6 23. Plaintiff agrees with ¶ 63 of Defendants’ SOF. 7

8 24. Plaintiff agrees with ¶ 65 of Defendants’ SOF.

9 25. Plaintiff agrees with ¶ 66 of Defendants’ SOF.

10 26. Plaintiff agrees with ¶ 67 of Defendants’ SOF.

11 27. Plaintiff agrees with ¶ 68 of Defendants’ SOF. 12 28. Plaintiff agrees with ¶ 69 of Defendants’ SOF. 13 29. Plaintiff agrees with ¶ 70 of Defendants’ SOF but affirmatively asserts he does not have 14 knowledge whether the Globetrotters’ belief that they possessed the right to former players’ 15 names and likenesses was “strong”. 16

17 30. Plaintiff agrees with ¶ 72 of Defendants’ SOF.

18 31. Plaintiff agrees with ¶ 73 of Defendants’ SOF.

19 32. Plaintiff agrees with ¶ 74 of Defendants’ SOF.

20 33. Plaintiff agrees with ¶ 77 of Defendants’ SOF. 21 34. Plaintiff agrees with ¶ 78 of Defendants’ SOF. 22 35. Plaintiff agrees with ¶ 80 of Defendants’ SOF. 23 36. Plaintiff agrees with ¶ 81 of Defendants’ SOF. 24 37. Plaintiff agrees with ¶ 83 of Defendants’ SOF. 25

26 38. Plaintiff agrees with ¶ 85 of Defendants’ SOF.

-3- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 3 of 28

1 39. Plaintiff agrees with ¶ 86 of Defendants’ SOF.

2 40. Plaintiff agrees with ¶ 89 of Defendants’ SOF, however Plaintiff is without knowledge regarding

3 whether HGI ceased making payments to the players and the Foundation “as a result” of 4 Plaintiffs’ filing suit. 5 41. Plaintiff agrees with ¶ 90 of Defendants’ SOF. 6 42. Plaintiff agrees with ¶ 92 of Defendants’ SOF. 7

8 43. Plaintiff agrees with ¶ 93 of Defendants’ SOF.

9 44. Plaintiff agrees with ¶ 94 of Defendants’ SOF.

10 45. Plaintiff agrees with ¶ 96 of Defendants’ SOF but asserts that Defendants’ expert also did not

11 determine if consumers were confused by the merchandise, whether apparel was sold because 12 Plaintiff’s information was on it, Plaintiff’s name, image, or player number recognition, 13 diminution of Plaintiff’s publicity value, demographics of the consumers who bought the 14 apparel, and offered no opinion on whether Defendants willfully and intentionally infringed 15 Plaintiff’s rights. (See Defendants’ Expert Report, attached as Exhibit “FF”). 16

17 46. Plaintiff agrees with ¶ 98 of Defendants’ SOF.

18 47. Plaintiff agrees with ¶ 99 of Defendants’ SOF.

19 48. Plaintiff agrees with ¶ 100 of Defendants’ SOF.

20 49. Plaintiff agrees with ¶ 101 of Defendants’ SOF. 21 50. Plaintiff agrees with ¶ 102 of Defendants’ SOF. 22 51. Plaintiff agrees with ¶ 104 of Defendants’ SOF. 23 52. Plaintiff agrees with ¶ 105 of Defendants’ SOF. 24 53. Plaintiff agrees with ¶ 106 of Defendants’ SOF. 25

26 54. Plaintiff agrees with ¶ 107 of Defendants’ SOF.

-4- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 4 of 28

1 55. Plaintiff agrees with ¶ 108 of Defendants’ SOF.

2 56. Plaintiff agrees with ¶ 114 of Defendants’ SOF.

3 57. Plaintiff agrees with ¶ 116 of Defendants’ SOF. 4 58. Plaintiff agrees with ¶ 117 of Defendants’ SOF. 5 59. Plaintiff agrees with ¶ 118 of Defendants’ SOF. 6 60. Plaintiff agrees with ¶ 119 of Defendants’ SOF. 7

8 61. Plaintiff agrees with ¶ 120 of Defendants’ SOF.

9 62. Plaintiff agrees with ¶ 122 of Defendants’ SOF.

10 63. Plaintiff agrees with ¶ 123 of Defendants’ SOF.

11 64. Plaintiff agrees with ¶ 125 of Defendants’ SOF. 12 65. Plaintiff agrees with ¶ 126 of Defendants’ SOF. 13 66. Plaintiff agrees with ¶ 127 of Defendants’ SOF. 14 67. Plaintiff agrees with ¶ 128 of Defendants’ SOF. 15 68. Plaintiff agrees with ¶ 145 of Defendants’ SOF. 16

17 69. Plaintiff agrees with ¶ 146 of Defendants’ SOF.

18 70. Plaintiff agrees with ¶ 155 of Defendants’ SOF.

19 71. Plaintiff agrees with ¶ 157 of Defendants’ SOF.

20 72. Regarding ¶ 56 of Defendants’ SOF, Plaintiff agrees that he has not filed a publicity-related 21 lawsuit against Defendants since Mannie Jackson has owned the Globetrotters. However, prior 22 to that time Plaintiff was a young player and was represented by different attorneys during his 23 time with the Globetrotters and he does not know whether a lawsuit was possibly filed against 24 Defendants on his behalf at that time. To the best of Plaintiff’s knowledge, he does not believe 25

26 that he has filed a lawsuit against Defendants prior to this.

-5- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 5 of 28

1 DISPUTED FACTS:

2 73. Since the sale of the Globetrotters and the transfer of assets of HGI, Plaintiff is without sufficient

3 information regarding ¶ 2 of Defendants’ SOF and therefore does not agree with or dispute the 4 allegations therein. 5 74. Plaintiff disputes ¶ 4 of Defendants’ SOF and affirmatively asserts that Plaintiff’s old contracts 6 speak for themselves. (See Plaintiff’s Player Contract, attached as Exhibit “B”; Plaintiff’s 7

8 Independent Contractor Agreement, attached as Exhibit “C”). It does not matter what Mannie

9 Jackson “believed” because he acted in bad faith by not looking at Plaintiff’s old contracts and

10 instead relying on some “standard player contract.”

11 75. Plaintiff agrees with the first sentence of ¶ 5 of Defendants’ SOF, which states, “the Harlem 12 Globetrotters International Foundation was created in 1998 and is an Arizona-based non-profit 13 corporation. However, Plaintiff disagrees with the remainder of ¶ 5 and affirmatively asserts that 14 Plaintiffs no of no former “needy” players that have been helped by the Foundation. (See 15 Thorton Deposition Transcript, attached as Exhibit “D” at p. 50; Sanders Deposition Transcript, 16

17 attached as Exhibit “E” at p. 128; Haynes Deposition Transcript, attached as Exhibit “F” p. at

18 97-98, 107; Foundation Report, attached as Exhibit “G”; Mannie Jackson Deposition Transcript,

19 attached as Exhibit “H” at 199).

20 76. Plaintiff disputes ¶ 9 of Defendants’ SOF and affirmatively asserts that Plaintiff’s number is 21 retired and Plaintiff has not needed to object to the recycling of his player number because it has 22 not been recycled. (See Affidavit of Meadowlark Lemon dated 11/23/05, attached as Exhibit “I” 23 ¶ 2; Transcript of Deposition of Govoner Vaughn, attached as Exhibit “J” p. 26-27, 38, 101-103). 24 77. Plaintiff disputes ¶ 10 of Defendants’ SOF and affirmatively asserts that Plaintiff is the only 25

26 Globetrotter player to have worn #36. (See Exhibit “J”).

-6- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 6 of 28

1 78. Plaintiff is without sufficient information to agree with or dispute ¶ 11 of Defendants’ SOF.

2 However, Plaintiff affirmatively asserts that he only wore #36 as a Globetrotter player and never

3 wore any other number. (See Exhibit “I” at ¶ 2). 4 79. Plaintiff disputes ¶ 12 of Defendants’ SOF and affirmatively asserts that Plaintiff owns the rights 5 to #36 as that is the only number he wore as Globetrotter player, the number was retired when 6 Plaintiff was inducted into the Basketball Hall of Fame, and the number has acquired secondary 7

8 meaning since the public associates #36 with Plaintiff. (See Exhibit “I” at ¶ 2, 3).

9 80. Plaintiff disputes ¶ 13 of Defendants’ SOF and affirmatively asserts that a ‘standard player

10 contract’ does not exist. (See Michael Syracuse Deposition Transcript, attached as Exhibit “K”

11 at p.67-69). 12 81. Plaintiff disputes ¶ 14 of Defendants’ SOF because Plaintiff does not know what is “typical” 13 when Defendants state that “Typically Plaintiffs would sign a new contract…” Furthermore, 14 Plaintiff affirmatively asserts the fact that the contracts differed depending on whether they 15 covered the regular season, the summer, or Europe, or whether they were for multi-year terms or 16

17 contained a renewal option, is further evidence that no ‘standard player contract’ existed.

18 82. Plaintiff disputes ¶ 15 of Defendants’ SOF and affirmatively asserts that his player contract and

19 independent contractor agreement did not contain “a paragraph authorizing the Globetrotters to

20 use Plaintiff’s name, photo and likeness for publicity and other purposes in perpetuity.” (See 21 Exhibit “B”; Exhibit “C”). 22 83. Plaintiff is without knowledge regarding ¶ 16 of Defendants’ SOF and therefore does not agree 23 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts. 24 However, Plaintiff would like to point out that the language in each of the paragraphs that 25

26 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence

-7- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 7 of 28

1 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22).

2 84. Plaintiff is without knowledge regarding ¶ 17 of Defendants’ SOF and therefore does not agree

3 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts. 4 However, Plaintiff would like to point out that the language in each of the paragraphs that 5 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence 6 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22). 7

8 85. Plaintiff is without knowledge regarding ¶ 19 of Defendants’ SOF and therefore does not agree

9 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts.

10 However, Plaintiff would like to point out that the language in each of the paragraphs that

11 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence 12 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22). 13 86. Plaintiff is without knowledge regarding ¶ 20 of Defendants’ SOF and therefore does not agree 14 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts. 15 However, Plaintiff would like to point out that the language in each of the paragraphs that 16

17 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence

18 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22).

19 87. Plaintiff is without knowledge regarding ¶ 21 of Defendants’ SOF and therefore does not agree

20 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts. 21 However, Plaintiff would like to point out that the language in each of the paragraphs that 22 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence 23 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22). 24 88. Plaintiff is without knowledge regarding ¶ 22 of Defendants’ SOF and therefore does not agree 25

26 with or dispute the allegations therein. Plaintiff has no knowledge of other players’ contracts.

-8- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 8 of 28

1 However, Plaintiff would like to point out that the language in each of the paragraphs that

2 Defendants excerpted from the Plaintiffs’ contracts is different and therefore is further evidence

3 that there is no ‘standard player contract.’ (See Defendants’ SOF ¶ 16-22). 4 89. Plaintiff agrees with ¶ 23 of Defendants’ SOF insofar as Plaintiff admits he made the statement 5 contained therein at his deposition. However, Plaintiff DISPUTES the first sentence of ¶ 23, 6 which states “compensation paid to players in the standard contracts was full compensation for 7

8 playing as well as using players’ name in any kind of merchandising or anything else regarding

9 the Harlem Globetrotters.” Plaintiff affirmatively asserts that he did receive additional

10 compensation for doing commercials. (See Meadowlark Lemon Deposition Transcript, attached

11 as Exhibit “L” at p. 125-131). 12 90. Plaintiff disputes the allegation in ¶ 25 of Defendants’ SOF that the Globetrotters sold trading 13 cards with Plaintiffs’ name and likeness. Nowhere on pages 126-127 of Plaintiff’s deposition, 14 which is cited by Defendants as evidence of the trading cards, does Plaintiff state that the 15 Globetrotters sold trading cards with his name and likeness. However, Plaintiff does agree with 16

17 the remainder of ¶ 25.

18 91. Plaintiff disputes that he stated on page 127 of his deposition that “the programs are re-run or

19 sold at retail today” as Defendants assert in the last sentence of ¶ 30 of Defendants’ SOF.

20 Therefore, Plaintiff is without knowledge whether the programs are re-run or sold at retail today 21 and does not agree with or dispute that allegation. Additionally, Plaintiff agrees with the 22 remainder of ¶ 30. 23 92. Defendants have not previously disclosed any evidence regarding ¶ 32 of Defendants’ SOF and 24 therefore, Plaintiff is without knowledge regarding the matters therein. As a result, Plaintiff does 25

26 not agree with or dispute the statements in ¶ 32 of Defendants’ SOF.

-9- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 9 of 28

1 93. Defendants have not previously disclosed any evidence regarding ¶ 37 of Defendants’ SOF and

2 therefore Plaintiff is without knowledge regarding the allegations contained therein. As a result,

3 Plaintiff does not agree with or dispute the allegations in ¶ 37 of Defendants’ SOF. 4 94. ¶ 40 of Defendants’ SOF does not concern Plaintiff and Plaintiff does not have any knowledge 5 regarding Plaintiff Neal’s activities. Therefore, Plaintiff does not agree with or dispute the 6 allegations in ¶ 40 of Defendants’ SOF. 7

8 95. ¶ 42 of Defendants’ SOF does not concern Plaintiff and Plaintiff does not have any knowledge

9 regarding Plaintiff Hall’s activities. Therefore, Plaintiff does not agree with or dispute the

10 allegations in ¶ 40 of Defendants’ SOF.

11 96. ¶ 44-48 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any knowledge 12 regarding Plaintiffs Neal, Sanders, Haynes, Rivers, and Thorton’s activities. Therefore, Plaintiff 13 does not agree with or dispute the allegations in ¶ 44-48 of Defendants’ SOF. 14 97. Plaintiff disputes that portion of ¶ 49 of Defendants’ SOF which asserts that Plaintiff “has not 15 asked the Globetrotters to stop using his name and likeness since he left the team.” Plaintiff 16

17 affirmatively asserts he is currently asking the Globetrotters to stop using his name and likeness

18 through this litigation. Additionally, Plaintiff asserts that Defendants have not entered into a

19 licensing agreement which licensed the use of Plaintiff’s name and likeness since he quit playing

20 for the Globetrotters and therefore had no reason to ask them to stop prior to bringing this 21 lawsuit. (See Affidavit of Ed Mutum, attached as Exhibit “M” at ¶ 5; Exhibit “H” at p. 249-250). 22 Plaintiff agrees with the remainder of ¶ 49. 23 98. ¶ 50-52 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any knowledge 24 regarding Plaintiffs Haynes, Thorton, Rivers, Hall, Sanders, and Neal’s activities. Therefore, 25

26 Plaintiff does not agree with or dispute the allegations in ¶ 50-52 of Defendants’ SOF.

-10- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 10 of 28

1 99. ¶ 54-55 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any knowledge

2 regarding Plaintiffs Neal and Haynes’ activities. Therefore, Plaintiff does not agree with or

3 dispute the allegations in ¶ 54-55 of Defendants’ SOF. 4 100. Plaintiff is without knowledge regarding whether Clyde Austin, Lou Dunbar, and Herbert 5 Ausbie “participated, cashed their checks, and have no objection to the promotion in anyway” 6 and therefore Plaintiff does not agree with or dispute that portion of ¶ 57 of Defendants’ SOF. 7

8 Plaintiff does agree that those persons are not parties in this lawsuit.

9 101. Plaintiff is without knowledge regarding what the ‘hundreds of Globetrotters alumni’

10 have done and therefore, Plaintiff does not agree with or dispute ¶ 58 of Defendants’ SOF.

11 102. Plaintiff disputes ¶ 59 of Defendants’ SOF and affirmatively asserts that it is impossible 12 that Defendants’ relied on Plaintiff’s contract for licensing and promotion activities because 13 Plaintiff’s contract was not readily available to Defendants as it was in a large storage warehouse 14 when the lawsuit first began. Therefore, at the outset of litigation, Defendants were unable to 15 provide Plaintiff with a copy of his old player contract. Furthermore, none of Plaintiffs’ 16

17 contracts were looked at prior to Defendants entering into the sublicense agreement with GTFM,

18 and only a blank contract was attached to the HGI/GTFM sublicensing agreement. (See Bruce

19 Weisfeld Deposition Transcript, attached as Exhibit “N” at p. 65-68; Larry Blenden Deposition

20 Transcript, attached as Exhibit “O” at p. 24-28, 34-36; Exhibit “H” at p. 262). Plaintiff also 21 affirmatively asserts that Defendants have not provided any evidence during discovery, and do 22 not cite to any supporting documents in their Statement of Facts, regarding an alleged 23 sublicensing agreement between Defendants and the manufacturer of the team’s program. 24 Therefore, Plaintiff also disputes that portion of ¶ 59. Plaintiff does agree that if the 25

26 Globetrotters do have a sublicensing agreement with the manufacturer of the team’s program,

-11- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 11 of 28

1 Defendants would have to change that agreement if the team did not have the right to license

2 Plaintiff’s name.

3 103. Plaintiff disputes ¶ 64 of Defendants’ SOF affirmatively asserts that Mr. Jackson 4 promotes individual players over ‘the brand’ as evidenced by the fact that Defendants use 5 specific player names in promoting the programs, have a “wall of fame,” and have named 6 “legendary players.” (See Exhibit “J” at p. 26-27, 38, 101-103). 7

8 104. ¶ 71 of Defendants’ SOF is pure speculation and therefore Plaintiff does not possess

9 knowledge regarding the statements contained therein.

10 105. Plaintiff disputes ¶ 75 of Defendants’ SOF and affirmatively asserts that Mannie Jackson

11 profited individually from the HGI/GTFM license agreement because he was the sole 12 shareholder, and after the licensing agreement, Mannie Jackson sold 80% of his shares for $70 13 million. (See Article titled “New Partnership to Increase Globetrotters Brand Worldwide,” 14 attached as Exhibit “P”). 15 106. Plaintiff disputes ¶ 76 of Defendants’ SOF and asserts that it is not common knowledge 16

17 in the merchandising industry that most merchandise is manufactured overseas. Defendants have

18 not cited anything to support that proposition. Furthermore, Plaintiff affirmatively asserts that it

19 does not matter what Mannie Jackson subjectively believes is highly offensive as the correct

20 standard is it only matters what the ‘reasonable person’ would find highly offensive. 21 107. Plaintiff disputes ¶ 79 of Defendants’ SOF and affirmatively asserts that a large 22 percentage of the total Apparel included information related to Plaintiffs. (See Exhibit “A”). 23 108. Plaintiff disputes ¶ 82 of Defendants’ SOF and affirmatively asserts that Plaintiff’s name, 24 as used on infringing hangtags, was used for marketing purposes. (See Exhibit “N” at p. 55-61; 25

26 Samples of Hangtags, attached as Exhibit “Q”).

-12- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 12 of 28

1 109. Although Plaintiff agrees that Mr. Jackson made the statements in ¶ 84 of Defendants’

2 SOF, Plaintiff disputes the truthfulness of the statements. Plaintiff affirmatively asserts that

3 Defendants’ received a 10% royalty for the first $1 million, and only received an 8% royalty 4 after that. (See HGI/GTFM Sublicensing Agreement). Plaintiff also disputes that 8% ‘was 5 market’ and asserts that Defendants have produced no evidence to Plaintiffs regarding what 6 “market” was. 7

8 110. ¶ 87 of Defendants’ SOF does not pertain to Plaintiff and he is without knowledge

9 regarding the actions of Plaintiffs Neal, Rivers, Thorton, and Sanders. Therefore, Plaintiff does

10 not agree with or dispute the allegations in ¶ 87 of Defendants’ SOF.

11 111. Plaintiff disputes ¶ 88 of Defendants’ SOF and affirmatively asserts that Plaintiff is the 12 only person who holds the right to license his name and likeness and therefore, Defendants have 13 an obligation to turn over all profits earned from their illegal use of Plaintiff’s name and likeness 14 on all of the apparel, including jerseys. (See Exhibit “B”; Exhibit “C”; Exhibit “I” at ¶ 8-9). 15 112. Plaintiff disputes the statement in ¶ 91 of Defendants’ SOF which states that GTFM is no 16

17 longer selling any Apparel. Plaintiff affirmatively asserts that retailers are still selling the

18 Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiff’s name. (See Exhibit “O” at

19 p. 46). Plaintiff agrees with the remainder of ¶ 91.

20 113. Plaintiff disputes ¶ 95 of Defendants’ SOF and affirmatively asserts that Plaintiff has 21 presented ample evidence that the Apparel is likely to cause consumer confusion. (See Exhibit H 22 at p. 15, 138, 187; Exhibit “O” at p. 121; Exhibit “I” at ¶ 2, 6). 23

24 114. Plaintiff disputes ¶ 97 of GTFM’s SOF. Plaintiff affirmatively asserts that the actual

25 statement of Ms. Abalos was as follows: 26

-13- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 13 of 28

1 Q: Is it fair to say that a license for the plaintiffs’ name, likenesses, and numbers alone

2 without the right to use Harlem Globetrotters with it would be worth a lot less than 8 to

3 10 percent? 4

5 A: Perhaps.

6 (See Abalos Deposition Transcript, attached as Exhibit “R” at p. 32). Plaintiff further states that

7 he was not required to determine what a reasonable royalty rate was for the use of Plaintiff’s

8 name, number and likeness as Plaintiff used a different methodology in computing the amount of 9 damages. (See Exhibit “R” at p. 32; Exhibit “A”). Furthermore, Defendants’ expert also did not 10 render an opinion on what a reasonable royalty rate would have been for the use of Plaintiff’s 11 name and likeness on the Apparel. (See Exhibit “FF”). 12 115. Plaintiff disputes ¶ 103 of Defendants’ SOF and affirmatively asserts that Plaintiff has 13

14 suffered economic damages as a result of the HGI/GTFM licensing agreement. (See Exhibit

15 “A”). Furthermore Plaintiff affirmatively asserts that Plaintiff seeks more than just Defendants’

16 profits. (See Plaintiff’s Second Amended Complaint filed on October 1, 2004).

17 116. ¶ 109-111 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any 18 knowledge regarding Plaintiff Haynes’ activities. Therefore, Plaintiff does not agree with or 19 dispute the allegations in ¶ 109-111 of Defendants’ SOF. 20 117. ¶ 112-113 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any 21 knowledge regarding Plaintiff Halls’ activities. Therefore, Plaintiff does not agree with or 22

23 dispute the allegations in ¶ 112-113 of Defendants’ SOF.

24 118. Plaintiff disputes ¶ 115 of Defendants’ SOF and affirmatively asserts that Plaintiff does

25 currently license his name and likeness and has recently entered into licensing agreements. (See

26 Exhibit “I” at ¶ 12). Plaintiff agrees with the remainder of ¶ 115.

-14- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 14 of 28

1 119. Plaintiff disputes the statement in ¶ 121 of Defendants’ SOF that states Mannie Jackson

2 and Meadowlark Lemon did not reach an agreement because Mr. Lemon’s demands did not fit

3 the company’s best interests and he requested too much money from the Globetrotters. Plaintiff 4 affirmatively alleges that Mannie Jackson did not want to pay Mr. Lemon, as evidenced by his 5 failure to pay the Plaintiffs adequate royalties. Plaintiff agrees with the remainder of ¶ 121. 6 120. Plaintiff disputes the statement in ¶ 124 of Defendants’ SOF that states Meadowlark 7

8 Lemon’s team uniforms were similar to the Globetrotters’ uniforms. Plaintiff agrees with the

9 remainder of ¶ 124.

10 121. ¶ 129-133 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any

11 knowledge regarding Plaintiff Neal’s activities. Therefore, Plaintiff does not agree with or 12 dispute the allegations in ¶ 129-133 of Defendants’ SOF. 13 122. ¶ 134-136 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any 14 knowledge regarding Plaintiff Thorton’s activities. Therefore, Plaintiff does not agree with or 15 dispute the allegations in ¶ 134-136 of Defendants’ SOF. 16

17 123. ¶ 137-142 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any

18 knowledge regarding Plaintiff Rivers’ activities. Therefore, Plaintiff does not agree with or

19 dispute the allegations in ¶ 137-142 of Defendants’ SOF.

20 124. ¶ 143-144 of Defendants’ SOF do not concern Plaintiff and Plaintiff does not have any 21 knowledge regarding Plaintiff Sanders’ activities. Therefore, Plaintiff does not agree with or 22 dispute the allegations in ¶ 143-144 of Defendants’ SOF. 23 125. Plaintiff disputes ¶ 147 of Defendants’ SOF and affirmatively alleges that he has recently 24 licensed his name and likeness and is currently involved in licensing agreements. (See Exhibit L 25

26 at 9, 23; Exhibit “I” at ¶ 12).

-15- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 15 of 28

1 126. Plaintiff disputes ¶ 148 of Defendants’ SOF and affirmatively alleges that he has

2 produced ample evidence that his ‘mark’ is recognized among the segment of society that

3 purchased the Apparel, especially since it was basketball sports apparel and Plaintiff has been 4 inducted into the Basketball Hall of Fame. (See Exhibit “H” at p. 15, 138, 187; Exhibit “O” at p. 5 121; Exhibit “I” at ¶ 2, 6). 6 127. Plaintiff disputes ¶ 149 of Defendants’ SOF and affirmatively alleges that he has 7

8 produced ample evidence showing that the Apparel with his former player number has caused

9 confusion and led consumers to believe Plaintiff approved the Apparel. (See Exhibit “H” at p.

10 15, 138, 187; Exhibit “O” at p. 121; Exhibit “I” at ¶ 2, 6).

11 128. Plaintiff disputes ¶ 150 of Defendants’ SOF and affirmatively alleges that he has 12 produced evidence showing consumers mistakenly believed he endorsed the Apparel. (See 13 Exhibit “H” at p. 15, 138, 187; Exhibit “O” at p. 121; Exhibit “I” at ¶ 2, 6). 14 129. Plaintiff disputes ¶ 151of Defendants’ SOF and affirmatively alleges that he has produced 15 evidence showing that consumers were likely confused as to whether Plaintiff endorsed the 16

17 Apparel. (See Exhibit “H” at p. 15, 138, 187; Exhibit “O” at p. 121; Exhibit “I” at ¶ 2, 6).

18 130. Plaintiff disputes ¶ 152 of Defendants’ SOF and affirmatively alleges that he has

19 produced evidence indicating that his name was used for advertising the Apparel, and that the

20 Apparel containing his information contributed to sales. (See Exhibit “N” at 55-61; Exhibit “Q”; 21 Exhibit “H” at p. 15, 138, 187; Exhibit “O” at p. 121; Exhibit “I” at ¶ 2, 6). 22 131. Plaintiff disputes ¶ 153 of Defendants’ SOF and affirmatively alleges that he has 23 produced evidence showing that Defendants intended to profit by confusing consumers and using 24 Plaintiff’s name specifically for marketing purposes. (See Exhibit “N” at 55-61; Exhibit “Q”). 25

26

-16- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 16 of 28

1 132. Plaintiff disputes ¶ 154 of Defendants’ SOF and affirmatively asserts that Plaintiff has

2 produced evidence suggesting that the Defendants willfully and deliberately infringed on

3 Plaintiff’s rights. (See Exhibit “I” at ¶ 8-9; Exhibit “N” at p. 65-66; Exhibit “O” at p. 24-28, 34- 4 36; Exhibit “H” at p. 262). 5 133. Plaintiff disputes ¶ 165 of Defendants’ SOF and affirmatively alleges that Plaintiff 6 produced evidence that comments made by Mannie Jackson brought Plaintiff in disrepute, 7

8 contempt, and ridicule and that Plaintiff’s reputation was damages as a result of such comments.

9 (See Article Titled “Globetrotters Call Foul on Meadowlark”, attached as Exhibit “S”; Excerpts

10 of Book, attached as Exhibit “T” at 338-339, 343, 347, 351, 354, 356, 362-363).

11 134. Plaintiff is without sufficient knowledge regarding ¶ 35 of Defendants’ SOF as 12 Defendants have never disclosed any evidence regarding a purported licensing agreement with 13 A&E Television. Furthermore, Plaintiff never saw the purported program and is without 14 knowledge whether his name and likeness were included in the broadcast. Therefore, Plaintiff 15 does not agree with or dispute the allegations in ¶ 35. 16

17 135. Plaintiff is without sufficient knowledge regarding ¶ 36 of Defendants’ SOF as

18 Defendants have never disclosed any evidence regarding a purported 2005 PBS broadcast.

19 Furthermore, Plaintiff never saw the purported program and is without knowledge whether his

20 name and likeness were included in the program. Therefore, Plaintiff does not agree with or 21 dispute the allegations in ¶ 36. 22 ADDITIONAL FACTS: 23 136. Plaintiff has submitted evidence of his reputation and notoriety. (See Exhibit “H” at p. 24 15, 138, 187; Exhibit “O” at p. 121). 25

26 137. Plaintiff has submitted evidence on whether purchasers of the FUBU/HGI Apparel were

-17- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 17 of 28

1 likely to be confused as to the source or sponsorship of the merchandise. (See Exhibit “H” at p.

2 15, 138, 187; Exhibit “O” at p. 121). Plaintiff further asserts that he has been inducted into the

3 Basketball Hall of Fame. (See Exhibit “I” at ¶ 2, 6). 4 138. Plaintiff has established that the Alleged Trademarks are protectible under the Lanham 5 Act by submitting evidence that consumers likely bought GTFM/HGI Apparel because it 6 contained his name and likeness. (See Exhibit “I” at ¶ 2, 3, 6; Exhibit “H” at p. 15, 138, 187; 7

8 Exhibit “O” at p. 121).

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

10 Exhibit “I” at ¶ 2).

11 140. People associate # 36 with Plaintiff. (See Exhibit “I” at ¶ 3). 12 141. The clothing bearing Plaintiff’s name, likeness, and player number sold very well, and 13 was the highest selling of all players. (See Exhibit “H” at p. 138). 14 142. Larry Blenden stated that some of the “big” names from the past Harlem Globetrotters 15 players would be Meadowlark Lemon, Curly Neal, Geese Ausby, and Marcus Haynes. (See 16

17 Exhibit “O” at p. 121).

18 143. When Mr. Jackson purchased the Globetrotters, he considered Meadowlark Lemon,

19 Marques Haynes, and Curly Neal to be legends of the Harlem Globetrotters. (See Exhibit “H” at

20 p. 15). 21 144. The best-known Globetrotters ever are Meadowlark Lemon and Marques Haynes. (See 22 Exhibit “H” at p. 187). 23 145. Meadowlark Lemon is the single most recognized Harlem Globetrotter. (See Exhibit “H” 24 at p. 255-256). 25

26

-18- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 18 of 28

1 146. Plaintiff has submitted evidence that (i) his names, number, image and likeness has

2 achieved secondary meaning or (ii) acts as a source identifier. (See Exhibit “H” at p. 15, 138,

3 187; Exhibit “O” at p. 121). Plaintiff has submitted evidence of his celebrity status and 4 notoriety, which is proof that his name, number and likeness have achieved secondary meaning. 5 (Id.). 6 147. Plaintiff currently licenses his name, jersey number, likeness and/or image. (See Exhibit 7

8 “I” at ¶ 12).

9 148. Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. (See Exhibit

10 “L” at p. 10-13).

11 149. Plaintiff is the only Globetrotter player to have worn number thirty-six. (See Exhibit 12 “J”). 13 150. At the FUBU wholesale level, GTFM’s estimate of the total wholesale of all HGI 14 merchandise and apparel was approximately twenty million dollars. (See Exhibit “N” at p. 86- 15 87). 16

17 151. The clothing line had a projected sales volume of twenty million dollars. (See Daymond

18 Aurum Deposition Transcript, attached as Exhibit “U” at p. 40-41).

19 152. The Harlem Globetrotters royalty analysis from GTFM for January 2002 through

20 November 2003 shows net sales on men’s and boy’s clothing line alone for the first two years of 21 $22.6 million. (See Exhibit “U” at p. 45.). 22 153. The FUBU Globetrotters jerseys and warm up suits became an immediate hit and sold 23 over $60 million retail in the first two years. (See Exhibit “H” at p. 121-122). 24

25

26

-19- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 19 of 28

1 154. The FUBU Globetrotters clothing line was available worldwide in over 5,000 retail stores

2 in thirty countries with retail sales of over $35 million the first ten months of the three-year deal.

3 (See Exhibit “H” at p. 122.). 4 155. Mannie Jackson stated that the HGI/GTFM licensing agreement was a “100 million 5 dollar” deal. (See ESPN article, attached as Exhibit “V”). 6 156. Plaintiff’s continued promotion of himself in the basketball/sports community by doing 7

8 speaking engagements and by having his own basketball team, the Meadowlark Lemon Harlem

9 Allstars, Plaintiff has made it clear that he is no longer associated with the Globetrotters

10 organization. (See Exhibit “L” at p. 9-13, 23).

11 157. Plaintiff became aware that a FUBU clothing line of sports apparel was being 12 manufactured and sold featuring his name and player number when he witnessed many fans 13 wearing the clothing at the ceremony in which Plaintiff was being inducted into the Basketball 14 Hall of Fame and his number (36) was retired. (See Exhibit “I” at ¶ 6). 15 158. Plaintiff first became aware of HGI and GTFM’s actions in producing a clothing line 16

17 displaying his name and likeness in or about the end of 2003. (See Exhibit “I” at ¶ 11; Plaintiff’s

18 Second Amended Complaint filed on October 1, 2004 ¶ 24).

19 159. On December 23, 2003, Plaintiff sent a letter to HGI and Mannie Jackson, requesting any

20 and all documentation which they are relying on that gives Defendants or any other entity 21 authorization to use Plaintiff’s name, image, likeness, number, notoriety, and goodwill. (See 22 Plaintiff’s Second Amended Complaint filed on October 1, 2004 ¶ 24; Letter to Mannie Jackson, 23 CEO of HGI, from Rosenquist & Associates dated December 23, 2003, attached as Exhibit “W”). 24 160. Defendants did not respond to the inquiry by the stated deadline of January 15, 2004. 25

26 (See Exhibit “W”; See Plaintiff’s Second Amended Complaint filed on October 1, 2004 ¶ 24).

-20- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 20 of 28

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

2 especially sports ware, being sold with the individual player names on it. (See Exhibit “M” at ¶

3 5). 4 162. Aside from the FUBU clothing line HGI has not been involved in utilizing the plaintiffs’ 5 names and likenesses. (See Exhibit “H” at p. 249-250). 6 163. Not even the clothing sold in the arenas at Harlem Globetrotters events contains 7

8 Plaintiff’s name and likeness. (See Exhibit “H” at p. 259).

9 164. Because of Defendants’ refusal to reliably quantify sales, Plaintiffs’ expert was unable to

10 completely calculate compensation based solely on individual Plaintiffs. (See Exhibit “R” at p.

11 40, 102-105, 111-114, 115, 119-121, 130, 133-135, 137-141, 144, 148-149, 155-156, 184-187, 12 207-208; See also ¶ 147 - 152, supra). 13 165. Plaintiff is no longer involved with the Harlem Globetrotter organization. (See Plaintiff’s 14 Second Amended Complaint filed on October 1, 2004 ¶ 13; Answer to Plaintiff’s Second 15 Amended Complaint, Affirmative Defenses and Counterclaim filed on October 25, 2004 ¶ 13; 16

17 Exhibit “I” at ¶ 7.)

18 166. The contract between GTFM and HGI was singed in June 2002. (See Exhibit “O” at p.

19 12-13).

20 167. HGI entered into an agreement with GTFM and others to license, develop, create, 21 produce, manufacture, market, promote, sell, and distribute apparel products, goods, and other 22 merchandise, and under the agreement HGI authorized the use of the names and likenesses of 23 any and all players who have played for the Harlem Globetrotters, or who thereafter play for the 24 Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. 25

26 (See GTFM’s Answer to Plaintiff’s Second Amended Complaint ¶ 15; HGI’s Answer to

-21- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 21 of 28

1 Plaintiff’s Second Amended Complaint, Affirmative Defenses and Counterclaim filed October 25,

2 2004 ¶ 15 & ¶ 27).

3 168. Defendants did not have the right to use Plaintiff’s name and likeness in the HGI/GTFM 4 clothing line under Plaintiff’s old contract. (See Exhibit “B”; Exhibit “C”; Exhibit “I” at ¶ 8-9). 5 169. During the contract negotiations with GTFM, Mannie Jackson, on behalf of HGI, 6 represented that HGI had the right to use player’s names and likenesses. (See Exhibit “N” at p. 7

8 65-66). Specifically, Mannie Jackson stated that all past Harlem Globetrotter players signed a

9 contract with the original Harlem Globetrotter’s owner, in which the players signed away their

10 rights in perpetuity for the use of their names and likenesses. Id.

11 170. Plaintiff received a check from the Harlem Globetrotters International Foundation, which 12 was only for five thousand dollars ($5,000) and Plaintiff did not cash the check. (See Exhibit “I” 13 at ¶ 1). The check did not represent all profits received from styles that included Plaintiff’s name 14 and/or likeness. (See Exhibit “A”). 15 171. Plaintiff never signed a contract with the original Harlem Globetrotter’s owner or HGI, in 16

17 which he signed away his rights in perpetuity for the use of his name and likeness. (See Exhibit

18 “I” at ¶ 8).

19 172. Plaintiff has no agreements/contracts with HGI or GTFM allowing license or use of his

20 identity, attributes of identity, name, images, or likenesses. (See Exhibit “B”; Exhibit “C”; 21 Exhibit “I” at ¶ 9; Plaintiff’s Second Amended Complaint filed on October 1, 2004 ¶ 14.) 22 173. In the book “Spinning the Globe: The Rise, Fall, and Return to Greatness of the Harlem 23 Globetrotters,” which was authored by Ben Green, Mannie Jackson made defamatory statements 24 about Plaintiff, and told lies about the Plaintiffs and other Globetrotter players, and made false 25

26 implications about Plaintiff by only telling half-truths. (See Exhibit “T”).

-22- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 22 of 28

1 174. In interviews for the book “Spinning the Globe: The Rise, Fall, and Return to Greatness

2 of the Harlem Globetrotters,” which was authored by Ben Green, Mannie Jackson made

3 defamatory statements about Plaintiff. (See Affidavit of Meadowlark Lemon dated 10/28/05, 4 attached as Exhibit “X” at ¶ 13.) 5 175. The book “Spinning the Globe” is sold on the Harlem Globetrotters website. 6 176. Mannie Jackson has received a monetary benefit from the book “Spinning the Globe” and 7

8 the defamatory statements made against Plaintiff.

9 177. In a statement that was published in the Arizona Republic on January 17, 2004, Mannie

10 Jackson made a defamatory statement about Plaintiff. (Exhibit “S”). Specifically, while talking

11 about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter’s, 12 Mannie Jackson stated “he wanted to be the show. We have a strong brand policy instead of a 13 star system, and he wanted more money than I could afford.” Id. 14 178. Mannie Jackson is the owner and CEO of HGI. (See Exhibit “H” at p. 9). 15 179. Arizona is a community property state. 16

17 180. Mannie Jackson’s statements and defamatory conduct were made on behalf of the

18 community and benefited the community.

19 181. Mannie Jackson was 100% owner of HGI prior to the recent sale and to Plaintiff’s

20 knowledge is still currently the owner of the Foundation. (See Corporate Filing, attached as 21 Exhibit “Y”). 22 182. Mannie Jackson participated in the negotiation of the agreement with GTFM. (See HGI 23 Memorandum, Doc. 216, Jackson Affidavit at ¶ 9). 24 183. GTFM relied on Mannie Jackson’s personal representations when deciding to enter the 25

26 licensing agreement and to not perform any due diligence as to HGI’s authority to license

-23- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 23 of 28

1 Plaintiff’s name and likeness. (See Exhibit “N” at p. 65-68; Exhibit “O” at p. 24-28, 34-36;

2 Exhibit “H” at p. 262).

3 184. Mannie Jackson negotiated and signed the HGI/GTFM licensing agreement. (See HGI 4 Memorandum, Doc. 216, Jackson Affidavit at ¶ 9). 5 185. Mannie Jackson sent letters to Plaintiffs regarding the diversion of money to the 6 Foundation. (See GTFM Sales Report and Cover letter, attached as Exhibit “Z”). 7

8 186. Mannie Jackson’s daughter is the only employee of the Foundation and she is paid by the

9 Foundation. (See Exhibit “H” at p. 200-201).

10 187. Mannie Jackson himself made the decision to place merchandise revenue in the

11 Foundation. (See Jackson Letter to Alumni dated 9/4/2003, attached Exhibit “AA”). 12 188. Mannie Jackson made a $70 million profit from the sale of the Globetrotters and he 13 caused HGI to become insolvent by withdrawing over $9 million. (See Exhibit “P”; Exhibit “R” 14 at p. 226-227). 15 189. Mannie Jackson, and his long time employees, Lenihan and Syracuse, control the 16

17 Foundation. (See Foundation Filing, Exhibit “BB”).

18 190. Alumni director, Governor Vaughn, and Coach Lou Dunbar do not know what the

19 Foundation does or who it has helped. (See Exhibit “J” at p. 6-7; Dunbar Deposition Transcript,

20 attached as Exhibit “CC” at p. 82-83). 21 191. Ms. Jackson testified that she does various charity work but when asked if she did any for 22 the Foundation she answered “absolutely not,” and, incredibly, she doesn’t even know who is on 23 the board. (See Catherine Jackson Deposition Transcript, attached as Exhibit “DD” at p. 15). 24

25

26

-24- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 24 of 28

1 192. Ms. Jackson’s charity, Arizona Foundation for Women, was paid $4,500.00 from the

2 Foundation in 2002 and 2003 according to Foundation cash disbursement report filed with the

3 State of Arizona. (See Exhibit “DD” at 37; Foundation Report, attached as Exhibit “G”). 4 193. The Foundation clearly was the recipient of revenues directly attributable to the sale of 5 HGI/GTFM clothes bearing Plaintiff’s name and likeness. (See Exhibit “Z”; Exhibit “K” at 42, 6 86; Exhibit “H” at 147-148). 7

8 194. None of the Plaintiffs, including Mr. Lemon, has any idea what the Foundation does with

9 the money it makes off of their names and likenesses. (See Exhibit “D at 50; Exhibit “E” at 128;

10 Exhibit “F” at 97-98, 107).

11 195. Public records reveal a list of numerous recipients of the Foundation’s largesse, which 12 was earned from Plaintiffs’ names, yet not one payment was made to any needy former player. 13 (See Exhibit “G”). 14 196. Mannie Jackson could not name a single former Globetrotter player helped by the 15 Foundation (See Exhibit “H” at 199). 16

17 197. The Foundation has controlled millions of dollars at the discretion and control of Mannie

18 Jackson. (See Foundation Receipt Report, attached as Exhibit “EE”).

19 198. Catherine Jackson has been married to Mannie Jackson for twenty-seven years and they

20 were married at the time the team was purchased. (See Exhibit “DD” at p. 9, 19-20). 21 199. Mannie and Catherine Jackson have filed joint tax returns since they were married. (See 22 Exhibit “DD” at p. 33). 23 200. While Catherine Jackson testified she didn’t know if marital funds were used to buy the 24 Globetrotters team in 1993, she stated in her deposition “WE didn’t even own the company back 25

26 then.” (See Exhibit “DD” at p. 30, 35-36).

-25- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 25 of 28

1 201. Plaintiff’s prior contracts with the Globetrotters did not give the Defendants license to

2 use Plaintiff’s name and likeness as Defendants did in the HGI/GTFM clothing line. (See

3 Exhibit “B”; Exhibit “C”). 4 202. Plaintiff’s expert report sets forth evidence of Plaintiff’s actual damages and Plaintiff’s 5 entitlement to Defendants’ profits received under the HGI/GTFM licensing agreement. (See 6 Plaintiff’s Expert Report, attached as Exhibit “A”). 7

8 th 9 DATED this 30 day of November 2005.

10

11 By: /s/ Anders Rosenquist ROSENQUIST & ASSOCIATES 12 Anders Rosenquist, Jr. Florence M. Bruemmer 13 Attorneys for Plaintiff 14

15

16

17

18

19

20

21

22

23

24

25

26

-26- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 26 of 28

1 CERTIFICATE OF SERVICE

2 Florence M. Bruemmer declares as follows: 3 4 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 5 attorney with Rosenquist & Associates.

6 2. I hereby certify that on November 30th , 2005, a true and correct copy of the foregoing STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF 7 MEADOWLARK LEMON’S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS 8 INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON’S MOTION FOR SUMMARY JUDGMENT was 9 sent by postage-prepaid first-class mail, addressed to:

10 Joel L. Herz, Esq. Law Offices of Joel L. Herz 11 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 12 Telephone: (520) 529-8080 13 Attorneys for Defendants FUBU the Collection, LLC 14 GTFM of Orlando, LLC d/b/a FUBU Company Store

15 Safia A. Anand, Esq. DREIR, LLP 16 499 Park Avenue 17 New York, NY 10022 Attorneys for Defendants FUBU 18 the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC 19 Clay Townsend, Esq. 20 Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 21 16th Floor 22 Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, 23 Thorton, Hall, Haynes and Sanders

24 Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 25 15333 North Pima Road, #225 26 Scottsdale, Arizona 85260

-27- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 27 of 28

1 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders 2 Ray K. Harris 3 Fennemore Craig 4 2003 North Central Avenue Suite 2600 5 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem 6 Globetrotters Int’l, Inc., Harlem Globetrotters Int’l Foundation, and Jackson 7 8 Edward R. Garvey Christa Westerberg 9 Garvey McNeil & McGillivray 634 West Mail Street 10 Suite 101 Madison, WI 53703 11 Attorneys for Defendants Harlem Globetrotters Int’l, Inc., Harlem Globetrotters Int’l 12 Foundation, and Jackson 13 by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States 14 Postal Service mail box.

15 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. 16 th 17 Executed this 30 day of November 2005, at Phoenix, Arizona.

18

19 /s/ Florence M. Bruemmer Florence M. Bruemmer 20

21

22

23

24

25

26

-28- Case 2:04-cv-00299-DGC Document 283 Filed 11/30/2005 Page 28 of 28