IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

FFWCT, LLC; USA FLAG, LLC; AND 

TRAVIS BURNETT,

Plaintiffs,

v. 

USA FOOTBALL, INC.,

Defendant,

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§ 

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§ 

§ 

§ 

§ 

§ 

Civil Action No. 4:23-cv-00465-ALM

USA FOOTBALL’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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The parties agree that the issues to be resolved are whether USA Football’s use of the 

phrase “national governing body” violates the Lanham Act and has harmed USA Flag. Dkt. 57 at 

2; Dkt. 73 at 1. Because the Ted Stevens Act does not restrict use of the phrase “national 

governing body” (NGB) to entities that have received formal certification by the USOPC, USA 

Flag insists that the Lanham Act supplies that prohibition. But because USA Football’s status as 

the NGB for flag football is neither false nor misleading, it has not and cannot harm USA Flag. 

USA Flag’s response brief falls far short of establishing otherwise. 

I. Response to Disputed Material Facts & Additional Undisputed Material Facts

USA Flag takes issue with a handful of USA Football’s undisputed facts (Dkt. 73 ¶ 1-10), 

to which USA Football responds as follows:

• USA Football does not contend that IFAF membership or RSO status are identical to national 

governing body (“NGB”) certification. Dkt. 73 ¶ 2. USA Football does contend that those 

designations, along with past practice of the USOPC, give USA Football a non-misleading 

basis on which to use NGB to refer to its role with respect to football, including flag football. 

Dkt 57 at 3-6. By contrast, USA Flag’s own use of “national governing organization” and 

“ultimate governing body” are admittedly solely self-designated. Dkt. 57 at 5-6.

• With respect to the interactions between USA Flag and the NFL:

o Only Mr. Hollomon, who is not a principal of USA Flag, had a pre-existing relationship 

with the NFL. Dkt. 58-3 [Hollomon Dep.] 41:4-12; Dkt. 57-10 [NFL Dep.] 19:6-10.

o USA Flag’s pitch materials to the NFL speak for themselves. Compare Dkt. 57 at 7 with

Dkt. 73 ¶ 7. No portion of the requested financial support relates to any proposed effort 

by USA Flag to become the NGB. Dkt. 57-18 at 2. There is no evidence of any

“discussion” between Hollomon and Vincent on July 5 beyond an inbound email to 

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Vincent. Compare Dkt. 73 ¶ 7 and Dkt. 73-1 ¶ 4 with Dkt. 74-2 at Page ID 2633.

o It is undisputed that the NFL described its budgeting process to USA Flag. Dkt. 73 ¶ 8; 

Dkt. 57-10 [NFL Dep.] at 56:1-13, 58:8-14. Fields disputes Davis’ hearsay 

representations that she committed to include their request in the budget. Compare Dkt. 

73-1 [Davis Decl.] ¶ 7 with Dkt. 73-10 [Fields Dep.] 57:19-59:3; Dkt. 57-10 [Fields 

Dep.] 52:22-56:13.

1 And even Burnett concedes that USA Flag never received a financial 

commitment from the NFL. Dkt. 57 at 7 (citing Dkt. 58-1 [Burnett Dep.] at 272:9-23). 

Thus, any factual dispute about the nature of the budget discussion is immaterial because 

it is undisputed that the NFL ultimately did not fund USA Flag’s proposal. 

• USA Flag’s expert clearly testified that “in my analysis, I only used the October [budget 

proposal].” Dkt. 57-26 [Porter Dep.] at 53:14-15. It is not disputed whether or not the 

October version was submitted to the NFL – the NFL testified that it was not, and no witness 

testified that it was. Dkt. 57 at 10; Dkt. 73 ¶ 10.2 There is no procedural basis for USA Flag’s 

expert to submit a supplemental report months after the close of discovery. Dkt. 73 ¶ 10. The 

mathematical errors reflected in his report were known to him, at the latest, when he 

acknowledged them at his deposition a month before discovery closed. Dkt. 57-26 [Porter 

Dep.] at 64:1-68:18. Porter also admits that his work has no bearing on whether USA 

Football caused USA Flag’s alleged damages (id. at 28:4-30:20; 40:19-45:15), so it is 

irrelevant unless causation is otherwise established.

1 USA Flag takes Hollomon’s budget reference out of context, as he also testified that the NFL did not 

instruct USA Flag to “hurry up, we want to make sure to get you into the budget” and that after the 

October Zoom meeting “this wasn’t going to happen, in my mind.” Compare Dkt. 73 ¶ 8 with Dkt. 74-3

[Hollomon Dep.] at 131:12-132:22.

2 The cited Hollomon testimony does not reflect that he “recalls the USA Flag team putting the October 

budget together to be presented to the NFL.” Compare Dkt. 73 ¶ 10 with Dkt. 74-3 [Hollomon Dep.] at 

131:12-132:22.

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To USA Flag’s additional undisputed material facts, USA Football states as follows:

• USA Football acknowledges that its witnesses did not give identical testimony as to the 

timing of the USOPC communications about use of NGB, but disagrees that its declarant’s 

testimony should be disregarded. Dkt. 73 ¶ 13; Sandras v. Freeport-McMoran, 889 F. Supp. 

901, 903 (E.D. La. 1995) (citing Dibidale v. American Bank & Trust Co., 916 F.2d 300, 307 

(5th Cir. 1990) (“the Fifth Circuit has instructed that a court must consider all evidence 

before it on a motion for summary judgment ‘including affidavits that conflict with 

deposition testimony.’”). USA Football’s declarant and corporate representative (Riley)

testified that the correct timing was late 2023. (Dkt. 57-8 [Riley Dep.] at 177:12-181:14; Dkt. 

57-2 [Riley Decl.] ¶ 9). 

At any rate, the USOPC’s express permission was not required for USA Football to 

accurately describe itself as the NGB, particularly during 2022 when no “certified” NGB existed. 

And there is no evidence that the USOPC acted at any time to intervene in USA Football’s usage 

of the phrase. To the contrary, the USOPC itself referred to USA Football as an NGB as recently 

as December 2023. Dkt. 57-6 at USAFB 1649 (referencing “your NGB governance ...”), 

USAFB 1651 (“We would be happy to welcome up to five people from your NGB to the session . 

. . your NGB will need to cover travel . . .”) (emphasis added). Taken as a whole, this letter 

makes clear that USOPC already views USA Football as the NGB, while acknowledging that 

certification is an additional step. Dkt. 57-6.

• None of the cited NFL evidence makes it “clear that even the NFL believed, or even 

mistakenly believed that USAFB was the” certified NGB for flag football.” Dkt. 73 ¶ 16-20

(emphasis added). The NFL’s evidence reflect that it commonly referred to USA Football as 

flag football’s NGB generally. Id.; ¶ 37. And USA Football has in fact been “designated” by 

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the USOPC as an RSO, so to the extent that USA Flag is conceding that the NFL had this 

understanding, it is accurate. Dkt. 73 ¶ 19. 

II. USA Football’s use of the phrase “national governing body” was neither literally 

false nor misleading.

Leaving much of USA Football’s arguments and authority unanswered, USA Flag

devotes a substantial portion of its brief to examples of USA Football (and other entities, 

including the NFL), describing USA Football using the phrase “national governing body.” The

fact of this usage is not in dispute. It also does not violate the Lanham Act.3 

A. USA Football is flag football’s national governing body.

USA Flag argues that despite USA Football’s undisputed RSO status and IFAF 

membership, its use of NGB must be deemed literally false because it is not the certified NGB

under the Ted Stevens Act. Dkt. 73 ¶ 33-34. There is no evidence that USA Football has used the 

phrase “certified national governing body” (Dkt. 57-8 [Riley Dep.] at 201:7-202:12) and USA 

Flag does not claim otherwise. The phrase “national governing body” is not legally restricted 

and, as the evidence in this case shows, is certainly susceptible to more than one reasonable 

interpretation. USA Football’s use of NGB cannot therefore be legally deemed literally false. See 

Dkt. 57 at 14 (citing cases). 

B. The NFL was not misled about USA Football’s national governing body status.

The only testimony suggesting that the NFL was confused or misled comes from 

representatives of USA Flag. Dkt. 73 ¶ 44-45. The evidence from the NFL – the best source of 

evidence about its own understanding – reflects that its relationship with USA Football did not 

3 USA Flag contends that its claims for false or misleading representation of fact, false or misleading 

description of fact, and unfair competition are somehow distinct from a false advertising claim. Dkt. 73 ¶

68-70. Yet it identifies no alternate analysis that the Court should apply. USA Flag’s claims are each pled 

under 15 U.S.C. § 1125(a), which is within Section 43 of the Lanham Act. Dkt. 1 at 13-19. False 

advertising analysis is proper here. Dkt. 57 at 12-13; Dkt. 73 ¶ 26-27. 

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depend upon whether USA Football was the “certified” NGB or just the entity recognized by 

both superior federations (IFAF and USOPC). The NFL’s testimony makes clear that USA 

Football’s IFAF membership was what mattered to the NFL – not what words were used to 

describe it. Dkt. 73 ¶ 44 (citing 73-10 [NFL Dep.] at 60:13-21, 119:1-12); see also Dkt. 73-10

[NFL Dep.] at 59:4-61:17, 117:18-119:12; Dkt. 57-10 [NFL Dep.] 49:5-22, 51:4-52:6.

USA Flag’s reliance on documentary evidence provided by the NFL undermines USA 

Flag’s position. Dkt. 73 ¶ 16-20, 42-43. Those documents establish that the NFL understood

USA Football’s status as the NGB within the flag football industry. Id. And there is no evidence 

supporting USA Flag’s insistence that the NFL was “misled” into this view or that it would 

repeatedly make public representations that USA Football is the NGB without having any idea 

whether it was true.4

Moreover, USA Flag’s arguments about who would and would not understand NGB 

certification are logically inconsistent. On the one hand, despite having been in the flag football 

industry for years, Davis remains unfamiliar with NGB certification, and USA Flag speculates

that “the relevant consuming public” would not know that IFAF membership connotes its own 

governing body status. Dkt. 58-2 [Davis Dep.] 383:20-25; Dkt. 73 n. 4. Yet USA Flag insists that 

the NFL and other potential unnamed sponsors are somehow in a class by themselves, such that 

they do understand the significance of NGB certification – so much so that it is the sole driver in 

their decision-making – yet those same parties did not understand (or check) whether USA 

Football had actually achieved that certification. See Dkt. 73 ¶ 59-60. This is not plausible. The 

NFL’s testimony reflects that it followed IFAF’s lead and viewed USA Football as the NGB

accordingly. Dkt. 73-10 [NFL Dep.] at 59:4-61:17, 117:18-119:12; Dkt. 57-10 [NFL Dep.] 49:5-

4 Davis’ new declaration is at odds with his admission that he is without knowledge about Mr. Vincent’s 

understanding of the NGB issue. Compare Dkt. 73-1¶ 6 with Dkt. 57 at 15-16 n. 7 (citing testimony).

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22, 51:4-52:6. This is not equivalent to being misled by USA Football about NGB certification. 

III. USA Flag has not been damaged by USA Football’s use of national governing body.

USA Flag’s only alleged damages relate to its failed NFL proposal. Dkt. 73 ¶ 19. USA 

Flag now acknowledges multiple alternate reasons why the NFL did not pursue the proposed 

collaboration. Dkt. 73 ¶ 58.5

 This concession undermines USA Flag’s bold Complaint allegation 

– unsubstantiated prior to filing – that the NFL’s sole reason for declining to proceed with USA 

Flag was the NGB issue. Dkt. 1 ¶ 29; Dkt. 58-1 [Burnett Dep.] at 264:22-267:5. Combined with 

the documented defects in USA Flag’s damages evidence (Dkt. 57 at 10, 16-17, n.8), there is no 

path forward for its damages claim. 

IV. USA Flag is not entitled to injunctive relief.6

USA Flag’s claim for injunctive relief relies purely on hypotheticals. It suggests, in 

effect, that but for USA Football publicly describing its own role in the industry, USA Flag 

might have been able to confuse potential sponsors and others into believing that USA Flag 

would be involved with the Olympics – at least until an NGB is formally certified by the 

USOPC. Dkt 73 ¶ 64-65; see, e.g., Dkt. 62-47 at USAFB 1659. As USA Flag notes, certification 

applications closed on June 6, 2024. Dkt. 73-12. There is no evidence that USA Flag is an 

applicant and thus under no scenario will USA Flag become the “pathway for Olympic 

selection.” Dkt 73 ¶ 64. Accordingly, all of the future hypothetical losses it allegedly 

“anticipates” (Dkt 73 ¶ 65) relate not to anything USA Football said in the past but result from 

5 In fact, the NFL repeatedly testified that its two discussions with USA Flag were “exploratory” only. 

Dkt. 73-10 [NFL Dep.] at 57:6-59:3, 61:18-63:5, 72:1-7, 72:20-73:6, 73:16-74:11, 76:8-17, 88:11-20. 

6

 To the extent that USA Flag intends to suggest that its claim for injunctive relief can either be granted 

by a jury or stand alone without evidence of damages, neither scenario is possible. Dkt. 73 ¶ 62-63, 67. 

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (injunctive relief is not a jury question); 

Eastman Chem. Co. v. PlastiPure, Inc., 969 F. Supp. 2d 756, 767–68 (W.D. Tex. 2013), aff'd, 775 F.3d 

230 (5th Cir. 2014) (injunction not warranted in the absence of demonstrated injury).

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the reality that USA Flag simply lacks any role in the Olympic movement.

USA Flag’s contention that USA Football is generating revenue “at the expense of USA 

Flag” is far-fetched. Dkt. 73 ¶ 64. There is no competent summary judgment evidence linking 

any sponsorship USA Football has to its use of the phrase “national governing body,” and no 

competent summary judgment evidence that, but for that language, those sponsorships would 

have automatically been awarded to USA Flag instead. See Dkt. 57 at 16. USA Football has been 

known in the industry for over 20 years. Dkt. 57-15 [Reese Dep.] 56:14-57:12, 59:5-9; Dkt. 57-8 

[Riley Dep.] at 188:4-10. It is responsible for the United States National Team.7 See Dkt. 73-17 

at 2. As the sole United States member of IFAF, USA Football is the only entity that can meet 

the requirement that an NGB “must be in good standing with its international federation.”

Exhibit A, Declaration of Anne Ricchiuto, Ex. 1 [NGB Compliance Standards] at 10 (D.4(a));

8

Dkt. 57 at 3-4. Although the record contains no evidence of Under Armour’s viewpoint, to the 

extent any sponsor may have opted to partner with USA Football based on those (or any other)

factors, that does not constitute evidence of any “misrepresentation” by USA Football. Dkt 73 ¶

65. Injunctive relief is not warranted here.

V. Response to Evidentiary Objections

None of USA Flag’s evidentiary objections to USA Football’s exhibits require 

7 To be clear, national teams exist regardless of flag football’s status as an Olympic sport. See Dkt. 57-14

(referencing National Team activities); Dkt. 73-15 at 2 (US National Team to play Panama). In fact, USA 

Flag intends to form its own national team, which under its own argument, would violate the Lanham Act. 

Dkt. 62 at 13 (citing testimony for national team creation); see Dkt. 73 ¶ 35. 

8 USOPC’s publicly-available NGB requirements are not hearsay. FED. R. EVID. 803(17). They are properly

submitted with USA Football’s reply because they directly refute USA Flag’s insinuation that it could be 

selected as the certified NGB as part of the “open” process (Dkt. 73 ¶ 12, 64-66) and they are consistent 

with USA Football’s prior argument that it is commonly viewed as the national governing body. Dkt. 57 

at 3-6. The local rules do contemplate reply brief attachments and USA Flag may address them in its surreply. Local Rule CR-47(a)(1)(A); Dkt. 66.

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disregarding evidence or otherwise preclude summary judgment.9 Dkt. 73 at 1-2.

• Riley’s declaration states that it is based on her personal knowledge. Dkt. 57-2 ¶ 1. 

• The list of Recognized Sports Organizations on USOPC’s website is properly considered 

under FRE 803(17) as a list, directory, or compilation generally relied upon by the public or 

persons in particular occupations. Dkt. 57-3. Furthermore, the fact that USA Football is an 

RSO is not disputed and is reflected in other sworn testimony. Dkt. 73 ¶ 2 (conceding the fact 

of USA Football’s RSO status); see, e.g. Dkt. 73-3 [Hallenbeck Dep.] at 29:2-30:16. 

• Riley’s statements regarding past communications with USOPC and the Trademark 

Agreement both reflect that USA Football lacked intent to misuse the phrase national 

governing body. FED. R. EVID. 803(3); Dkt. 57-2 ¶ 7-9; Dkt. 57-4.

• The Connect Sports email is a properly authenticated USA Football business record showing 

that Connect Sports understood USA Football to be an NGB, and thus, is not hearsay. FED. R.

EVID. 803(3). It. Dkt. 57-2 [Riley Decl.] ¶ 3, 12; FED. R. EVID. 803(6); Willbern v. Bayview 

Loan Serv., L.L.C., 842 F. App'x 865, 867 (5th Cir. 2021) (explaining that a business record 

does not have to be created by the party offering it to be that party’s business record).

• The USA Flag website,

10 Event Collaboration Agreement, and email from Curtis Hollomon

were all discussed by Charles Davis and Travis Burnett in their depositions, as follows:

9 USA Flag does not contend that any of the challenged evidence is unable to be presented in an 

admissible form at trial. See Fed. R. Civ. P. 56 Advisory Committee Note (2010).

10 Despite objecting to USA Football’s use of USA Flag’s website, USA Flag relies on USA Football’s 

website (and others) in its Response brief. Dkt. 73-12, 73-13, 73-15, 73-17.

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Dkts. 57-12 and 57-13 

[USA Flag website]

Burnett Dep.

11 (Exhibit B hereto) at 308:1-15, 308:22-309:5

Davis Dep. (Exhibit C hereto) at 376:25-377:14, 381:16-382:2

Dkt. 57-14 

[Event Collaboration 

Agreement]

Ex. B [Burnett Dep.] at 108:24-109:12

Ex. C [Davis Dep.] at 85:14-86:14

Dkt. 57-25 [Hollomon 

email]

Ex. B [Burnett Dep.] at 300:23-302:4

Ex. C [Davis Dep.] 352:9-353:12

• The USA Flag website and Holloman email are also statements of a party opponent. FED. R.

EVID. 801(d)(2); Dkts. 57-12, 57-13, 57-25. Hollomon was an agent of USA Flag who made 

the statement during the existence of that agency relationship. FED. R. EVID. 801(d)(2).

• Finally, none of these documents’ relevance can be seriously disputed. The test for relevance 

is a “low bar.” Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 741 (5th Cir. 2020). Each 

exhibit has a tendency to make a fact of consequence in this action more or less probable 

than it would be without the evidence. FED. R. EVID. 401. 

VI. Conclusion

USA Flag’s theory of the case requires each of the following implausible facts to be 

found true: notwithstanding the NFL’s long-time relationship with USA Football, including an 

ongoing collaboration to bring flag football into the Olympics, the NFL was completely unaware 

of whether its own understanding and public statements describing USA Football as the NGB for 

flag football were accurate. But for this alleged misunderstanding, the NFL would have

partnered with a two-man amateur flag football tournament operator to (1) usurp USA Football’s 

internationally-recognized governing body role and (2) fund a multi-million dollar proposal to 

11 USA Flag filed Burnett and Davis’ testimony under seal. Dkts. 74-1, 74-5. USA Football previously did 

the same because as of the May 17 filing, USA Flag’s deadline to designate specific testimony as 

confidential under the parties’ protective order had not yet expired. Dkt. 56 ¶ 1-2; Dkts. 58-1, 58-2.

Having received the transcripts from the court reporter on April 26, 2024, USA Flag’s designations were 

due by May 26. Dkt. 21 ¶ 11(b). Because no designations have been made, there is no ongoing basis for 

the Burnett and Davis transcripts to be sealed.

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field adult flag football tournaments, not under its own household name or with its own existing

flag football collaborators, but by entrusting the NFL brand to USA Flag. To accomplish this, the 

NFL was willing to ignore its typical months-long budgeting process and hand over millions 

after only 90 minutes of meetings. According to USA Flag, the only barrier to all of this 

happening is that the NFL failed to realize that USA Football was not yet certified as the 

Olympic NGB—an impossibility at that time because flag football was not yet an Olympic sport. 

USA Flag did not move for summary judgment or offer undisputed evidence supporting 

this narrative because it cannot, and no reasonable juror could find it true by a preponderance of 

the evidence in the face of the undisputed material facts presented by USA Football. Dkt. 57. 

This tale is simply too tall to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 252, 255 (1996) (“the mere existence of a scintilla of evidence in support [USA Flag’s] 

position [is] insufficient” to create a genuine issue of fact where no “reasonable jurors could find 

by a preponderance of the evidence” for USA Flag); Johnson v. Cox, No. 3:21-cv-03105-E, 2024 

WL 331631, at *8-11 (N. D. Tex. Jan. 29, 2024) (granting summary judgment where no 

reasonable juror could find in plaintiff’s favor). 

USA Football respectfully requests that its Motion for Summary Judgment be granted.

Respectfully submitted,

/s/ Anne K. Ricchiuto 

 

Amie N. Peele (pro hac) 

Indiana Bar No. 19523-29

Anne Ricchiuto (pro hac) 

Indiana Bar No. 25760-49

Kelly Thompson (pro hac) 

Indiana Bar No. 21846-49

Ashley Hodges (pro hac) 

Oklahoma Bar No. 31082 

apeele@peelelawgroup.com 

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aricchiuto@peelelawgroup.com

kthompson@peelelawgroup.com

ahodges@peelelawgroup.com

PEELE LAW GROUP, PC

49 Boone Village, Box 299

Zionsville, IN 46077

(202) 964-4500 (Ph)

(202) 964-4502 (Fax)

Louis T. Perry (pro hac)

Indiana Bar No. 25736-49

Louis.perry@faegredrinker.com

FAEGRE DRINKER BIDDLE & REATH 

300 N. Meridian St., Ste. 2500

Indianapolis, IN 46204

(317) 237-0300 (Ph)

(317) 237-1000 (Fax)

David Gomez (pro hac)

Minnesota Bar No. 0401234

David.Gomez@faegredrinker.com

FAEGRE DRINKER BIDDLE & REATH 

2200 Wells Fargo Center

90 S. Seventh Street

Minneapolis, MN 55402

(612) 766-7000 (Ph)

(612) 766-1600 (Fax)

Justin Opitz

State Bar No. 24051140

jopitz@mcguirewoods.com

MCGUIREWOODS LLP

2000 McKinney Avenue, Ste. 1400

Dallas, Texas 75201

(214) 932-6400 (Ph)

(214) 932-6499 (Fax)

Attorneys for USA Football, Inc.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on June 28, 2024, a true and accurate copy of the foregoing 

was served upon counsel of record for FFWCT, USA Flag, and Travis Burnett via ECF. 

Mark D. Nielsen 

Bryan Haynes 

Taylor Harris

Scheef & Stone

2600 Network Blvd., Suite 400 

Frisco, Texas 75034 

(214) 472-2100 Telephone 

(214) 472-2150 Fax 

/s/ Anne K. Ricchiuto

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