Nike, Inc. et al v. Reebok International Ltd.
Filing
13
FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - AFFIDAVIT of Julian W. Friedman in Opposition re: 5 MOTION for Temporary Restraining Order [re:2]. MOTION for Temporary Restraining Order [re:2].. Document filed by Reebok International Ltd.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Friedman, Julian) Modified on 4/4/2012 (ldi).
EXHIBIT A
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CASE NO. 12 CIV 2275 (PKC)(4LE)
3
KENNETH GAMBLE
1
2
K E N N E T H
G A M B L E,
3
NIKE, INC., and NIKE
USA, INC.,
Plaintiff,
4
v.
REEBOK INTERNATIONAL
LTD.,
Defendant.
Canton, Massachusetts
5
:
:
:
:
:
:
:
:
:
(Business Address) 1895 JW Foster Blvd.
been duly sworn, was examined and testified
6
7
as follows:
EXAMINATION BY MR. FOSTER:
Q.
8
Transcript of the deposition of KENNETH GAMBLE
9
(VIA TELEPHONE), called for Oral Examination in
02021, after having
Mr. Gamble, you have counsel with you
in the room?
10
A.
Yes, sir.
the above-captioned matter, said deposition taken
11
Q.
Anyone else with you?
by and before SILVIA P. WAGE, a Certified
12
A.
That's it.
Shorthand Reporter, Certified Realtime Reporter,
13
Q.
All right.
Registered Professional Reporter, and Notary
14
person most knowledgeable +within Reebok of the
Public for the State of New York, New Jersey and
15
Reebok NFL Players Association license agreement?
Pennsylvania, at the offices of STILLMAN &
16
A.
Yes, sir.
FRIEDMAN, P.C., 425 Park Avenue, 26th Floor, New
17
Q.
Would you take a look at a document
York, New York, on Monday, April 2, 2012,
18
that you have in your -- some pile in front of
commencing at 10:44 a.m.
19
you, it's marked in the lower right-hand corner
20
with little tiny letters and numbers, RBK 31
21
through 37.
HUDSON REPORTING & VIDEO, INC.
22
please?
124 West 30th Street, 2nd Fl.
23
New York, New York 10001
24
the copy of our licensing agreement with the NFL
TEL: 212-273-9911
25
Players, Inc.
New York
Connecticut
Fax: 212-273-9915 JOB NO. 6084
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
A.
Mr. Gamble, are you the
Can you get that document out,
One second.
New York
Connecticut
Yes, it looks like it's
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
4
KENNETH GAMBLE
1
Q.
And this agreement expired by
2
its term on February 28, 2010; is that correct?
3
2
3
Okay.
5
KENNETH GAMBLE
1
Q.
All right.
So let me just ask you,
specifically, about player movement.
4
A.
2010, no, that's not correct.
4
5
Q.
Excuse me.
5
require any special authorization from the
6
Thank you.
6
Players Association to mark team jerseys or
7
This agreement expired on its term on
7
T-shirts for players that were traded or teams
8
that signed free agents?
8
February 28, 2012, correct?
A.
The terms expired 2/28/12,
Q.
agreement, correct?
A.
Prior to 2/28/12?
Q.
Yes.
A.
No.
12
And this was a group license
9
11
yes.
11
12
Correct.
Prior to February 28, 2012, did Reebok
10
9
10
Let's try that one again.
Q.
So under your Players Association
13
A.
Yes, sir.
13
license, you were free to mark -- because you had
14
Q.
And this was an agreement for the use
14
this group license, you were free to mark team
15
of players names and groups of six or more,
15
apparel with players names under the scope of
16
correct?
16
your team license -- your group license, right?
17
A.
Yes, sir.
18
Q.
All right.
17
And you are familiar with
A.
Yes, sir.
18
Q.
Okay.
So, as of February 28, 2012,
19
the NFL Players Association Group Licensing
19
Reebok had no authority to mark any players names
20
Assignment, which is the last page in this
20
on any team apparel without getting some kind of
21
document that I've identified and that we're
21
special approval, right?
22
going to mark as Exhibit 5?
22
A.
23
Yes, yes, sir I'm familiar with that.
A.
That was -- that's not true.
We
23
still have or actually still have rights under
24
(Deposition Exhibit No. 5, License
24
this agreement as part of our sell off period.
25
Agreement, was marked for identification.)
25
But because we have been transparent all the way
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
6
KENNETH GAMBLE
1
7
KENNETH GAMBLE
1
2
through the process with the NFL, not as much
2
A.
Yes, sir.
3
with the PA because we haven't really been in a
3
Q.
Okay.
4
situation where we've had to have conversations
4
moved from one team to another team after
5
with them, we have been reaching out to the
5
February 28th, it's your view that Reebok would
6
League to let them know what our intentions are,
6
have the right to take that players name, let's
7
what we are planning on doing and they've been
7
say, Tim Tebow under your sell off rights and
8
reciprocating.
8
mark apparel?
And, in this instance, we wanted to do the
9
A.
9
And so even a player that had
Peyton Manning, Randall Marshall, Tim
10
same with the Players Association because we
10
Tebow, yes, I believe we had the right to do
11
wanted to make sure they are aware of how we were
11
that.
12
going to attack all the player movements that
12
13
were going happen in the month of March.
13
the Players Association that you felt you had
14
those rights under the sell off provision?
Q.
14
15
So let me -- just help me understand
that a little bit.
A.
15
So are you saying, as far as you were
16
Q.
16
Okay.
And so -- okay.
Did you tell
I did not, specifically have that
conversation with them, no.
17
concerned, Reebok could take a Jets jersey and
17
Q.
Okay.
18
puts somebody's name on it after February 28,
18
A.
But I believe that they understood
19
2012?
19
our contract or they, at least, should have
understood our contract.
20
A.
Yes, sir.
20
21
Q.
And the basis for that is what again,
21
22
exactly?
A.
23
24
Q.
Okay.
And did you get advice from
22
Okay.
March 15th?
24
Hudson Reporting & Video
Nationwide 1-800-310-1769
A.
No, sir.
25
That's the sell off period?
New York
Connecticut
legal counsel concerning this matter prior to
23
Would be in that license agreement,
Section 17E, I believe it is.
25
Q.
Q.
You do have lawyers in-house at
New Jersey
Pennsylvania
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
8
KENNETH GAMBLE
1
2
9
KENNETH GAMBLE
1
Reebok, don't you?
Q.
Okay.
A.
2
And David Baxter was only involved to
3
A.
Yes, sir.
3
4
Q.
Okay.
4
the extent that we -- that he agreed to the
5
financial terms that were part of this agreement.
5
agreement with the NFL Players Association?
A.
6
7
Did you negotiate the license
I was part of the negotiating team,
Q.
6
yes.
Okay.
Were you involved in the
7
negotiation of the earlier license agreement with
the NFL Players Association?
8
Q.
Who else was part of that team?
8
9
A.
At one point David Baxter, as well as
9
A.
No, sir.
10
Q.
Do you know who was involved in that?
I do not.
All right.
10
another in-house counsel Sara Stewart, who was
11
checking the document.
11
A.
12
Q.
Is David Baxter a lawyer?
12
Q.
13
A.
No, sir.
13
14
Q.
Okay.
I'm sorry.
I may have
Mr. Gordan's declaration in this case?
14
A.
I have.
Q.
Okay.
15
misunderstood what you just told me, so I just
15
16
wanted to clarify.
16
So the team that negotiated the Exhibit 5
Have you seen
Do you have that in front of
you?
17
A.
I do not.
18
with the NFL Players Association was you, David
18
Q.
Mr. Gordan indicated in his
19
Baxter and Sara Stewart had some involvement?
19
declaration that the NFL players -- and I'm going
17
20
A.
20
to quote -- "NFL Players has not authorized the
21
negotiation team.
Sara Stewart wasn't part of
21
use of Tim Tebow's name on any newly introduced
22
Q.
Okay.
22
Tebow New York Jets Reebok products."
23
A.
She was the legal counsel who would
23
24
make sure that we had all the detail covered that
24
25
all of our points were in the document.
Is that a true statement, as far as you're
25
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
concerned?
A.
New York
Connecticut
That is a true statement.
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
10
KENNETH GAMBLE
1
Q.
2
A.
Yes, I do.
3
players did not authorize Reebok to use
3
Q.
Okay.
4
Mr. Tebow's name on any Jets apparel?
4
2
A.
5
Okay.
11
KENNETH GAMBLE
1
So you understood that the NFL
My conversations with Mr. Gordan were
So the one that is marked with
39 at the end, do you have that in front of you?
5
Yes, sir.
Q.
This is an e-mail from you to
never about Tim Tebow.
7
Mr. Gordan happened between the dates of 3/9 and
7
Mr. Gordan.
8
3/13 and at that point Tim Tebow was not part of
8
get a moment."
9
any conversation.
9
dated March 9th, Friday?
Q.
10
A.
Yes, sir.
11
Q.
Seven in the morning?
10
11
My conversations with
A.
6
6
Your focus was on Peyton Manning,
right?
A.
You leave a phone number.
It's
12
A.
Yes.
13
initially, and then all the other player movement
13
Q.
Why were you asking -- first of all,
14
that was happening during that time period
14
15
between 3/9 and 3/13.
3/13
15
12
My focus was on Peyton Manning,
It says, "Give me a call when you
16
Q.
17
some documents.
18
19
with the No. 39 and they go on through the No.
19
20
66.
A.
22
Keith Gordan is -- I hope I get his
So let me ask you to pick up
16
title right -- the President of NFL Players,
There is a stack of documents
17
Inc., which is the marketing arm for the NFL
that are marked in the lower right-hand corner
18
Players Association.
20
A.
21
Okay.
who is Keith Gordan?
Okay, one second.
I have it in front
Q.
And why were you sending this
I was sending the e-mail to
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
released by the Indianapolis Colts, that made him
24
a free agent, and I wanted to reach out to him to
25
I am here.
Mr. Gordan because on 3/8/12 Peyton Manning was
23
You got those documents?
25
Okay.
22
Hello?
24
A.
21
of me.
23
Q.
e-mail to Mr. Gordan?
have a conversation about this --
New Jersey
Pennsylvania
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
12
KENNETH GAMBLE
1
14
1
KENNETH GAMBLE
2
Q.
Okay.
2
that's because Reebok had a current license with
3
A.
-- incident.
3
the NFL, right?
4
Q.
And what was it that you wanted to
4
A.
Yes.
5
Q.
So you didn't need anybody's approval
5
talk to him about?
A.
6
I wanted to talk to him about making
6
to sell NFL authorized apparel, right?
7
sure that he was clear, that we wanted to
7
8
activate in the marketplace when Peyton Manning
8
you know, it's been our intention from, I guess,
A.
No.
But, again, as I stated earlier,
9
decided that he -- when Peyton Manning decided to
9
the day we met with the NFL back in August of
10
play for a particular team, when that moment
10
last year to be transparent about any activity
11
came.
13
that we're having around their business,
Okay.
12
particularly, as we're the outgoing licensee.
A.
12
11
Q.
And I wanted to make sure that he was
13
Q.
Right.
But you had a current license
14
visible about -- had visibility to what our
14
15
intentions were.
15
A.
Yes, sir.
16
Q.
16
Q.
It didn't expire until the end of
17
permission to do that, weren't you?
A.
18
19
You were calling to ask him
17
Part of the conversation with him was
with the NFL, correct?
March, right?
18
A.
Correct.
19
to make sure that he was okay with it.
Q.
So your inquiry -- the holdup here
20
Q.
And what else?
20
21
A.
And that was it, on that particular
21
Q.
All right.
22
day.
23
was with the Players Association, right?
A.
MR. FRIEDMAN:
22
So take a look at the
A.
23
24
document with the numbers in the lower right-hand
24
25
corner ending in 40.
25
New York
Connecticut
It's the next page.
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
Yes.
Object --
I wanted to make sure that they were
aware of what we were doing.
MR. FRIEDMAN:
New York
Connecticut
Okay.
Kenny, this is
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
15
KENNETH GAMBLE
1
2
Julian.
3
opportunity to make some objections.
4
answering very quickly.
5
THE WITNESS:
16
KENNETH GAMBLE
1
I would ask to just give me the
2
agent and going to another team.
3
You're
-- he -- excuse me.
He was traded
4
MR. FRIEDMAN:
the 9th, the next day, he was a free agent, he
6
was free to chose what team he was going to play
7
answered, I object to the form of the last
7
for.
8
question.
8
6
Even though it's been
He became a free agent on the 8th and on
5
Okay, sorry.
Go ahead.
9
Q.
10
9
And at this time, you knew that your
Q.
And so what graphics were going to be
created?
A.
10
We would probably create some name
11
license from the Players Association had expired,
11
and numbered T-shirts kind of replicate the
12
right?
12
uniform, which has a been series that we've been
13
running for ten years, and then some player
imagery stuff of him in an action photo.
A.
13
At this time, I did know, yes, that
14
our license -- our term had expired with the NFL
14
15
Players Association.
15
Q.
16
And when you say in your e-mail to
16
Q.
Okay.
Now, Mr. Manning is a Reebok
athlete, isn't he?
17
these folks at Reebok, your e-mail dated
17
A.
I believe he still is, yes.
18
March 9th, "hold until you hear from me," what
18
Q.
Okay.
19
was it they were holding, what were they holding
19
20
off doing?
20
A.
I believe he does, yes.
21
Q.
Okay.
A.
21
We were holding on -- they're waiting
22
for me to advise them how to proceed with
22
23
creating graphics for Peyton Manning.
Which means he has an
endorsement agreement with Reebok?
23
Who is the person most
knowledgeable about that?
A.
Not me.
24
Q.
Okay.
Graphics for what?
24
Q.
Okay.
25
A.
Graphics for him becoming a free
25
A.
Diane -- what's her last name?
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
Well, who is?
New York
Connecticut
Diane
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
18
KENNETH GAMBLE
1
A.
2
3
Yes, he did, after I e-mailed him
2
first back on the 9th, I believe.
Q.
4
20
KENNETH GAMBLE
1
talk to him about.
Q.
3
And he has a response to your e-mail
name and numbers?
and that is the e-mail that is the middle e-mail
5
6
on that page of Exhibit 6?
6
A.
I didn't say "grant."
I was asking
A.
8
Correct.
7
Q.
7
10
So you were asking him to
grant Reebok the ability to make new jersey or
5
9
All right.
4
Okay.
8
Q.
Okay.
9
A.
And I explained that we are having
And he indicated to you that
he's not comfortable granting Reebok the ability
to make a new jersey or name and number?
him if he was okay if we proceeded.
10
conversations with the NFL and the NFL was okay
11
A.
He did indicate that, yes.
11
with what we were doing and I just wanted to make
12
Q.
I also need to be allowed to finish
12
sure that he was aware of what our intentions
13
were.
13
my question.
14
And I appreciate your patience with me, but let
So it's a little hard on the phone.
14
15
me ask the whole question and then you can give
15
feel like it didn't really matter what the
16
me the answer that you just gave me.
Q.
Okay.
And, at this time, did you
16
Players Association said, you could go ahead and
17
A.
Okay.
17
do what you wanted to do on your sell off
18
Q.
So Mr. Gordan writes you back and
18
provision?
19
indicates that he's not comfortable granting
19
20
Reebok the ability to make a new jersey or
20
reached out -- that was at 5:20, I believe, he
21
name/number in conjunction with the team product
21
e-mailed me and that was the Friday or Friday of
22
for Peyton if he signs with a new team.
22
the weekend and I just said to myself, you know,
23
see that?
23
I'll reach out to him on Monday and, you know,
24
A.
Yes.
24
just have a conversation with him because I think
25
Q.
Okay.
25
he's missing out on an opportunity that really
New York
Connecticut
Do you
What was your understanding of
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
A.
New York
Connecticut
No, sir.
No, sir.
I actually,
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
21
KENNETH GAMBLE
1
22
KENNETH GAMBLE
1
2
shouldn't be passed up.
3
following Monday to -- and then we started
3
4
e-mails for the most part that whole day.
4
Q.
5
Okay.
So I e-mailed him the
2
At any point did you send
then -A.
We were --
(There is a discussion off the record.)
MR. FRIEDMAN:
5
Kenny, the last few
6
Mr. Gordan an e-mail, or did you otherwise
6
7
communicate to him that it was Reebok's position
7
A.
We're acting in good faith.
8
that they had the right to use Mr. Manning's name
8
Q.
Good.
9
on a jersey or T-shirt during this time period
9
So your sell off period is for what,
10
regardless of what the Players Association said?
11
A.
Yes, 150 days from the end of the
Did you ever have that conversation
12
Q.
So it's your position then, Mr.
with anybody internally at Reebok?
term.
13
A.
15
No, sir.
14
Gamble, that Reebok can continue to put players
Q.
14
16
150 days?
No, sir.
Q.
12
10
A.
11
13
words of your answer got cut off.
So this is a position that you've
15
names on team apparel for the next what,
16
120 days?
come to recently, in your own mind?
17
A.
No, sir.
17
18
Q.
You always felt that way?
18
A.
I know the language of the contract.
19
19
A.
Yes, yes, sir, you asked that
question before, sir, yes.
Q.
I must have asked in a little
20
And, as I stated earlier, we're paying these
20
different way.
21
guys, you know, we're trying to be as transparent
21
what it is your saying.
22
as we can be with these guys so they understood
22
A.
Okay.
23
what our position was and what we were trying to
23
Q.
So you can put anybody's name on
24
do around this business.
24
anybody's jersey for a player -- specifically,
25
for a player that moves from one team to another
Q.
25
New York
Connecticut
And so would it be your position
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
I want to make sure I understand
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
23
24
1
KENNETH GAMBLE
1
2
over the next period of time through the entire
2
a while.
3
150-day sell off period?
3
ago I checked and to see what our blank situation
4
was and we had a lot.
not specific as to what the number is.
A.
4
In our licensing agreement, in
5
Section 17E, it makes no specific reference to
5
6
any of what you just said.
6
7
right to do and activate, you know, during that
7
8
sell off period, as we chose.
KENNETH GAMBLE
8
So I feel we have the
But I do know about a month and a half
Q.
Not specific as to -- I'm
I just want to be abundantly clear
about what we're talking about here.
So, if a player is traded on August 15th
9
Q.
What is it you're selling off?
10
A.
We're selling off inventory.
10
Packers, it's your position that Reebok can slap
11
Q.
Inventory of what?
11
that players name on a Green Bay packers team
12
A.
Blank jerseys, finished jerseys.
12
apparel and sell it into the market?
9
from the Seattle Sea Hawks to the Green Bay
13
"Blank," meaning, there is no imprinted player
13
A.
August 15th of what year?
14
name and number on them, which we cannot sell
14
Q.
This year?
15
into the marketplace blank per the NFL; "finished
15
A.
Of '12?
16
jerseys," which have imprinted player name and
16
Q.
Yes, sir.
17
number on the product and any specific T-shirts
17
A.
No, we don't have that right.
18
that have specific NFL colors that aren't colors
18
Q.
How about July 15th?
19
that we can run across and leverage across our
19
A.
Yes, July 15th, we do.
20
other businesses we have to sell off.
20
Q.
21
So you have no existing inventory
Our rights
end on, I believe, July 31, '12.
Q.
21
Okay.
So take a look at exhibit --
22
with players names printed on them or with
22
what's been marked as Exhibit 1.
23
players name affixed?
23
the bottom.
A.
24
25
I don't know what our finished
inventory position is.
New York
Connecticut
24
I haven't checked that in
Hudson Reporting & Video
Nationwide 1-800-310-1769
It's Page 42 at
New Jersey
Pennsylvania
A.
Yes, sir.
25
Q.
This is another e-mail from you at
New York
Connecticut
Hudson Reporting & Video
Nationwide 1-800-310-1769
New Jersey
Pennsylvania
26
KENNETH GAMBLE
1
2
is an e-mail from Blake Lundberg.
3
27
KENNETH GAMBLE
1
that?
Do you see
Q.
2
3
Okay.
And Blake Lundberg is a --
what's his position, he's the vice president?
4
A.
Is that RBK 0042.
4
5
Q.
Yes, sir, Exhibit 1.
5
our Indianapolis Printing Facility and
6
A.
Okay.
6
Distribution Facility.
7
Q.
There is an e-mail from Blake
7
8
Lundberg to Glen Giovanucci and John Warren.
9
you see that?
10
A.
11
Okay.
8
12
A.
And it has the same RE sign --
Q.
Okay.
So he's, apparently, reporting
A.
I'm not certain about that.
Q.
Okay.
11
John Warren is -- do you
report to John Warren?
12
It says, "JW says we have no
15
rights through NFL PA as they expired 2/28.
16
working on a one-time deal."
A.
Yes, I do.
13
Yeah.
14
Okay.
on a conversation you had with John Warren?
9
the subject line is your e-mail?
13
Q.
Vice president and general manager of
10
Yes.
Q.
Do
A.
Q.
Okay.
So take a look at the next
14
15
He's
Do you see that?
e-mail above that.
John Warren to you?
Do you see that, it's from
16
Yeah.
Q.
It says, "Do you think we can get a
A.
Yeah.
18
Q.
Who is --
18
deal done with the NFL PA to ship Manning if he
19
A.
He's not familiar with the contract.
19
goes soon?"
20
Q.
Well, I haven't asked you a question
21
I think Blake misspoke.
A.
17
17
Do you see that?
20
Yes.
21
yet.
A.
Q.
What's the deal that John Warren
22
Do you see that, what I'm referring to?
22
23
A.
Yes.
23
24
Q.
Who is JW there?
24
25
A.
John Warren.
25
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wanted to get done?
A.
I'm not exactly sure what he's
referencing there.
Q.
Well, you responded to him, right,
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KENNETH GAMBLE
1
2
Go ahead, Kenny.
3
A.
5
A.
know the terms of our contract.
8
9
Q.
11
Association?
A.
7
That did not come up in the
8
Mr. Warren knows the terms of the
conversation with Mr. Warren or in any e-mails,
9
contract?
A.
wanted to get through some deal with the Players
6
speaking out of turn.
thought Reebok already had the rights that he
5
So he's really
important enough to tell Mr. Warren that you
4
Yeah, Blake, Mr. Lundberg, does not
7
10
But at this time it didn't seem
3
I have to get my
objections in whenever I can.
6
Q.
2
Yes -MR. FRIEDMAN:
4
30
KENNETH GAMBLE
1
no, sir.
Q.
10
Mr. Warren does not know the terms of
Okay.
Did you tell Mr. Warren that
11
you had talked with Mr. Gamble and that Mr.
12
the contract like I know the terms of the
12
Gamble --
13
contract.
13
MR. FRIEDMAN:
14
Q.
14
MR. FOSTER:
Okay.
So did you tell Mr. Warren
15
that you didn't need to get a deal done because
15
16
you already had the rights?
16
MR. FRIEDMAN:
Q.
This is Mr. Gamble.
I got it.
Okay.
Did you tell Mr. Warren that you had
17
A.
No, I didn't cover that with him, no.
17
received an e-mail from Mr. Gordan indicating
18
Q.
Okay.
18
that the Players Association didn't feel
19
comfortable granting Reebok the ability to make a
20
new jersey or name and number in conjunction with
21
a team product for Peyton if he signs with a new
22
team?
19
why?
A.
20
21
And you didn't do that because
I didn't think to have to cover that
with him at the time.
Q.
22
Okay.
Wasn't everybody anxious to be
23
in a position to sell Manning jerseys and
23
24
T-shirts?
24
25
A.
New York
Connecticut
Sure.
Yes.
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A.
Q.
25
New Jersey
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I believe I had a conversation with
him face to face about that, yes.
New York
Connecticut
Okay.
And what was his reaction to
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KENNETH GAMBLE
1
2
35
that?
A.
2
A.
I don't recall.
3
Q.
3
KENNETH GAMBLE
1
Okay.
4
Q.
Specifically, you talked --
5
that you didn't need the Players Association's
5
A.
I spoke to Mr. Warren and I believe I
6
authority to proceed because Reebok had rights
6
7
under the sell off provision of the Players
7
8
License Association Agreement?
8
talking to Mr. Warren and saying, we have the
9
rights to mark under the sell off provision,
4
Did you tell him at that time
No, I didn't talk to Mr. Gordan about
that at all.
No, I did not have that conversation
said -- mentioned something to Mr. Giovanucci.
Q.
So, specifically, you remember
9
A.
10
with him.
11
along, which was to make sure that we were
11
12
transparent with the League and the Players
12
13
Association on what our intentions were during
13
Q.
Okay.
14
this time period.
14
A.
But, as he said, you know, he said
15
Q.
15
we're being transparent with the Leagues and the
But he knew this was our plan all
10
When was the first time you had a
right?
A.
I believe I just said we have the
rights anyway.
16
conversation with Mr. Warren or anybody else at
16
Players Association, so, you know, we're
17
Reebok in which you took the position that Reebok
17
following the guidelines that we set for
18
had the right under the sell off provisions of
18
ourselves on ending the business the right way.
19
the players license to mark team apparel with a
19
20
players name after March 1, 2012?
MR. FRIEDMAN:
21
Q.
And you recall that being a
20
21
Before you answer,
conversation after March 13th and prior to the
Nike lawsuit being filed?
22
Kenny, let me just say I have no problem with the
22
A.
Yes, sir.
23
question because it says when.
23
Q.
Okay.
24
to ask him about conversations and they are
24
25
privileged, I will be objecting.
25
New York
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If you're going
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And was that -- is that in
writing anywhere, is there any -A.
No, sir.
New York
Connecticut
As I stated earlier, we had
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38
1
KENNETH GAMBLE
1
2
communications with Mr. Gordan about all of this
2
(Deposition Exhibit No. 7, e-mail string
3
since his e-mail to you saying he didn't feel
3
RBK00050 & 51, was marked for identification.)
4
comfortable granting Reebok the ability to make a
4
A.
Seven?
5
new jersey or name and number?
5
Q.
Right.
6
A.
Okay.
Q.
Pages 50 and 51 are Exhibit 7.
A.
6
Well, as I recall, the e-mail started
KENNETH GAMBLE
7
on 3/9 and then with a follow-up voice message
7
8
and then Mr. Gordan's response on 3/9 late that
8
is an e-mail Tuesday morning, March 13th, from
9
day about his being uncomfortable and then, like
9
you to Mr. Gordan.
10
I said, it was the weekend and I waited until,
11
you know, Monday to respond to him again and I
12
guess this e-mail happened that Sunday before
12
13
Monday, the 12th, and I just basically told these
13
14
guys, you know, hold tight and I'm working with
14
15
players and, you know, we'll get moving here.
15
Yeah.
11
Q.
Okay.
So you're kind of knocking on
the door again, right?
A.
Yes, because I wanted to speak to him
about his e-mail on Friday.
Q.
Okay.
And the e-mail on Friday is
Okay.
16
the one where he indicated he was not
A.
17
Because they were anxious to,
17
comfortable, right?
obviously, get some product in the marketplace.
19
Q.
20
Right, okay.
18
A.
Yes, sir.
19
So take a look at Page 50 in the lower
21
A.
Q.
16
18
10
This
Q.
Okay.
And, at this point, you wanted
20
21
right-hand corner, 50 and 51.
to talk more than just Peyton Manning, you wanted
to talk with about Randy Moss, right?
22
A.
Okay.
22
23
Q.
All right.
23
believe -- I could be wrong -- but I believe he
24
A.
Page 50 right now?
24
had just signed with the 49ers on Friday.
25
Q.
Yeah.
25
New York
Connecticut
Let's mark this as Exhibit 7.
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A.
Q.
New York
Connecticut
Yeah, I believe -- Randy Moss, I
Right, okay.
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1
And did you have a conversation with
2
3
2
Mr. Gordan on that day?
MR. FRIEDMAN:
4
5
Do you mean Friday or
5
Q.
A.
Did you have a conversation with
Q.
11
through 54.
12
A.
Q.
Okay.
Do you recall that
conversation?
A.
I do.
Q.
What was discussed?
8
I believe I did but late, late in the
A.
It was just -- what was discussed was
10
Q.
the top of the page.
18
it was at some point public knowledge and I
wanted to make sure that he was aware of that.
He was.
15
This is an e-mail to John Warren at
17
marketplace because that's something that was --
14
RBK52 to 54, was marked for identification.)
wasn't going to have any product in the
13
Okay.
that were presented and I was aware that Nike
11
Now, take a look at Page 52
We're going to mark that as
all the player movement and the opportunities
12
Okay.
(Deposition Exhibit No. 8, e-mail string
16
He said he had conversations with
16
20
A.
21
Q.
I'm sorry, I keep doing that.
apologize.
be a missed opportunity, you know, to generate
21
I
going to be at its highest and that was going to
20
I talked to Mr. Gamble?
particularly, at a time when consumer demand was
19
Does that refresh your recollection?
it was just going to be a missed opportunity,
18
Apparently, you had talked
Nike about this but to no avail.
17
to Mr. Gamble the night before.
22
Obviously, it looks like I
7
Exhibit 8.
13
19
Yeah.
9
10
15
A.
spoke to him on the evening of the 12th.
6
day.
14
KENNETH GAMBLE
4
Mr. Gordan on March 13th?
8
9
3
Monday?
6
7
40
KENNETH GAMBLE
1
royalties, you know, for his business.
Q.
22
Okay.
And I told him
And did he explain to you why
23
You talked with Mr. Gordan the night
23
he was uncomfortable with authorizing Reebok to
24
before, that is, Monday night, March 12th, if I'm
24
do what you wanted to do?
25
reading this e-mail correctly?
25
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He said he was uncomfortable because
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42
1
KENNETH GAMBLE
1
KENNETH GAMBLE
2
he had agreements that started on 3/1 with Nike
2
we're moving out of this business is to be very
3
and VF.
3
transparent with the Leagues, as well as the
4
Player Association, so they knew what our
intentions are.
MR. FRIEDMAN:
4
And VF.
5
A.
VF Imagewear.
Imagewear
5
6
Q.
And you already knew there was an
6
7
agreement with Nike?
A.
8
9
I did, I did.
7
He had previously said
Q.
And so if he said, no, you would have
still gone forward?
A.
I don't know what I would have done.
Q.
Okay.
10
A.
But, again, you know, we have a
10
Q.
Okay.
11
A.
He said that he was going to go and
11
current relationship with the NFL because we have
12
talk to his attorney, Ahmad Nassar, and see if
12
another brand called Mitchell & Ness where we
13
there is anything that they can do that would
13
currently entered into a relationship with the
14
allow us to move forward.
14
NFL for the next five years.
15
do anything to jeopardize our business with the
16
NFL or with Players Association because we have
17
intentions on vying for some other business
Q.
15
16
Okay.
And what else did he say?
8
9
that in his e-mail on the 9th as well.
And what was it that you
needed to move forward?
A.
17
I just wanted to make sure that he
So I didn't want to
18
was clear and knew our intentions about putting
18
that's still available out there.
19
product into the marketplace.
19
my intention to be malicious or wanton or, you
Q.
And so did you tell him that
20
know, damaging to either one of the parties, NFL
21
you were going o be marking these products and
21
or NFL Players Association.
22
you were just calling him to advise him of that?
22
20
A.
23
Okay.
So it wasn't
I wanted to make sure that he
understood what we were doing.
As I stated
25
earlier, you know, our policy was, you know, as
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Okay.
So take a look at Page 55.
New Jersey
Pennsylvania
Again, this is another e-mail.
24
24
New York
Connecticut
Q.
23
you're getting a little -- well, you're following
25
up on an earlier e-mail that day and the
New York
Connecticut
It looks like
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KENNETH GAMBLE
1
44
KENNETH GAMBLE
1
2
conversation that occurred the prior night.
3
you see that?
Do
2
rings?
A.
3
Yeah.
It was a short, pretty short,
A.
Yes, sir.
4
conversation, 3 minutes and 14 seconds, to be
Q.
4
Okay.
5
exact.
6
Mr. Gordan after this e-mail that we've marked as
6
pleasantries, learned that he was in Chicago.
7
Exhibit 9?
7
told me he had some fun.
8
about, you know, whether or not they were okay
9
with us moving forward.
5
A.
8
9
I did.
He called me.
And did you talk with
I talked to him that evening.
He was in Chicago at the time.
10
Q.
Yeah.
11
A.
And it might have been around I want
Q.
two conditions.
anymore than five players because if we did over
14
You say you were on your way home.
And he said, we are, but there are
13
Were you in your car?
A.
12
It might have
Well, what --
11
been like quarter to six in the evening.
Q.
five, it would infringe on Nike and VF's rights
15
to say -- it was on my way home.
13
15
He
And then we just talked
10
12
14
We talked and exchanged some quick
which start -- the Group Licensing Agreement
One is that we couldn't do
16
A.
I was in my truck, yes.
16
starts at 6 players and above.
17
Q.
In your truck, okay.
17
we did less than five, they would have an
What kind of truck do you have?
18
argument against Nike and be able to say that we
19
did less than five.
20
breach of contract and we're not infringing --
21
and they're not infringing on the rights.
18
A.
19
20
riding truck.
Q.
21
22
I think it might have been truck of
the year a year or two ago.
A.
24
Okay.
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Players Association for approval and that there
25
The phone
there was to be nothing submitted to the NFL
24
So tell me in as much detail
And then the second condition was that
23
as you can give to me what happened.
New York
Connecticut
So, therefore, we're not in
22
Beautiful thing.
Q.
23
25
Toyota Tacoma, beautiful truck, great
And this way if
was to be no further communication on the subject
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KENNETH GAMBLE
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46
KENNETH GAMBLE
1
2
matter and that was the last time I spoke with
2
3
Mr. Gordan.
A.
No.
In this instance, he didn't want
3
us to have any approvals as far as sending
4
Q.
Okay.
4
artwork or any type of graphics that we might
5
A.
I explained to him that if he was,
5
create or re-introduce.
6
you know, still concerned, that, you know, we
6
be, I guess, any trail.
7
could -- we could somehow manage, you know, how
7
8
much product that we had in the marketplace
8
very familiar with the Players Association
9
because our intention was not to flood the
Q.
9
rights to grant group licenses for six or more
11
players, right?
12
A.
That is correct.
Q.
So Exhibit 4, which ends with page
11
didn't say anything about it.
12
finished, you know, going over those two
13
conditions again and then the call ended.
13
15
Okay.
And then he
How do you know this took 3
14
A.
that timed that call.
Q.
18
Okay.
Now, Mr. Gordan also told you
e-mail from home?
16
A.
After I pulled off to the side.
17
Because I have a log on my BlackBerry
56, you sent an e-mail -- did you send that
15
minutes and 14 seconds?
16
17
And I think he heard my comment, but he
license that the Players Association only has
market.
Q.
Well, you understood because you're
10
10
14
He didn't want there to
Q.
Yeah.
18
A.
Actually, Mr. Giovanucci e-mailed me.
19
that you needed approval from the players, didn't
19
He wanted to know what was the status.
20
he, individual players?
20
pulled over to the side and texted it or actually
And I
e-mailed him.
21
A.
No.
21
22
Q.
I'm sorry?
22
Q.
So --
23
A.
No.
23
A.
And I was basically following, you
24
Q.
There was no discussion about getting
24
know, the point that Keith made, which was to not
25
have any communication on it.
25
approval from individual players?
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So I wanted to
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48
1
KENNETH GAMBLE
1
2
call and then have verbal conversation with him
2
3
about what the conditions were.
3
Q.
4
5
A.
Q.
9
A.
One at a time.
Mr. Gamble, he explained to you,
I thought it was a little odd, but
players or more?
8
Did you think that was a
authority to grant a group license, that is six
7
A.
No.
9
Okay.
didn't he, that the Players Association only had
6
little odd?
10
MR. FRIEDMAN:
Q.
5
Five players or less and no
communication.
8
authority -- hang on just a second.
4
or less?
6
7
And the conditions were five players
KENNETH GAMBLE
Q.
Go ahead.
A.
He explained to me that he didn't --
10
He explained to me -- can I --
11
that's what they decided, how they decided to
11
he didn't want to have an issue, you know, with
12
handle and so I went with it.
12
their contract and agreement with Nike and VF.
13
And if there was -- anything came up or there was
Q.
13
Okay.
That's not the way that Reebok
14
typically takes care of its licensing
14
any argument, they could argue that we did --
15
arrangements; is it?
15
that they allowed us to do less than six players.
A.
16
17
That is true, that is true, that is
correct.
Q.
MR. FOSTER:
16
17
18
MR. FRIEDMAN:
19
condition to be there because the Players
19
MR. FOSTER:
20
Association was not granting a group license,
20
21
right?
21
18
Actually, I had to have him explain
A.
25
(Recess taken 11:34 to 11:36 a.m.)
23
Q.
24
And he explained to you that they
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Q.
I think we're done.
MR. FRIEDMAN:
24
hang on for one second.
25
didn't have authority to grant -- they only had
Okay.
We'll just step outside
the door.
22
it to me again why they were going that route.
22
23
And you understood the five or less
Can we take a moment.
Just step outside.
Okay.
So I have no --
Kenny.
New Jersey
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New York
Connecticut
I have one question for
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KENNETH GAMBLE
1
Kenny, this is Julian.
2
3
5
I have one
3
THE WITNESS:
Yes, sir.
Q.
And what was the date of the
expiration of the NFL contract?
4
You said before that the sell off
A.
3/31/12.
5
EXAMINATION BY MR. FRIEDMAN:
6
Q.
2
question for you.
4
50
KENNETH GAMBLE
1
Q.
So the 60 days give or take a day
6
would be May 31st?
7
provision contained in the agreement with NFL PA,
7
A.
Yes.
8
the Players Association, I guess, NFL players
8
Q.
If -- withdrawn.
9
Inc., that that sell off agreement in paragraph
9
Was it necessary to have both sell off
10
17 had an end date of five months after the end
10
provisions in effect in order for Reebok to sell
11
of the term of the license, correct?
11
team specific player name and number apparel?
A.
13
14
12
Q.
12
Yes, 150 days.
Was there also a sell off provision
13
in Reebok's agreement with the NFL?
A.
Pretty much, yes.
Q.
So if Reebok had manufactured goods
14
-- apparel with the name and number of moving
15
A.
Yes, sir, there was.
15
players and used their new team logos, what would
16
Q.
Do you remember the terms of that
16
be the last date by which Reebok could sell that
17
apparel?
17
sell off agreement?
A.
18
Those -- that term was also 150 days.
18
A.
5/31.
Q.
Okay.
19
But, in recent months, we had renegotiated a sell
19
20
off period with the NFL that included the
20
21
exchange of rights for Mitchell & Ness brand that
21
22
I talked about earlier.
22
I have no further questions.
EXAMINATION BY MR. FOSTER:
Q.
Kenny, tell us what this Mitchell &
Ness arrangement is about, what kind of goods?
23
Q.
Right.
23
24
A.
And that window was reduced to
24
want to say three years ago, maybe four years
25
ago.
They're a vintage license brand so they,
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60 days from the expiration of the NFL contract.
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A.
They are a brand that we bought I
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