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).

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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 New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania wanted to get done? A. I'm not exactly sure what he's referencing there. Q. Well, you responded to him, right, New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 29 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. Hudson Reporting & Video Nationwide 1-800-310-1769 A. Q. 25 New Jersey Pennsylvania I believe I had a conversation with him face to face about that, yes. New York Connecticut Okay. And what was his reaction to Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 31 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 Connecticut If you're going Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania And was that -- is that in writing anywhere, is there any -A. No, sir. New York Connecticut As I stated earlier, we had Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 37 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. Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania A. Q. New York Connecticut Yeah, I believe -- Randy Moss, I Right, okay. Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 39 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 New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania A. He said he was uncomfortable because New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 41 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 Hudson Reporting & Video Nationwide 1-800-310-1769 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 Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 43 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. Hudson Reporting & Video Nationwide 1-800-310-1769 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 New Jersey Pennsylvania New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 45 KENNETH GAMBLE 1 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? New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania New York Connecticut So I wanted to Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 47 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 New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 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 Pennsylvania New York Connecticut I have one question for Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania 49 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, New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 25 60 days from the expiration of the NFL contract. New York Connecticut Hudson Reporting & Video Nationwide 1-800-310-1769 New Jersey Pennsylvania A. They are a brand that we bought I New Jersey Pennsylvania

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