1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION

FFWCT, LLC’S, USA FLAG, LLC’S, AND TRAVIS BURNETT’S SUR-REPLY RE: USA 

FOOTBALL, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO “NATIONAL 

GOVERNING BODY”

FFWCT, LLC, USA Flag, LLC, and Travis Burnett (collectively “USA Flag”) submit this 

Sur-Reply re: USA Football, Inc.’s (“USAFB”) motion for summary judgment (Dkt. 57). The 

numerical outline for the headings herein corresponds to the same in USAFB’s Reply (Dkt. 78).

In its Reply, USAFB concedes that there are genuine disputes of material fact as to its 

motion. For example, USAFB posits that “its witnesses did not give identical testimony as to the 

timing of the USOPC’s communications about the use of NGB.” Dkt. 78 at 3 (first bullet point on 

page). Non-identical is a substantial understatement. The non-identical testimony differs in 

timing by ~24 months (no later than January of 2022 versus late 2023) and is material because the 

earlier date pre-dates USA Flag’s interactions with the NFL that are the subject of this dispute.

For this reason alone, USAFB’s motion for summary judgment should be denied.

I. SUR-REPLY RE: DISPUTED MATERIAL FACTS AND ADDITIONAL 

UNDISPUTED MATERIAL FACTS

Dkt. 78 at 1, First Bullet – USA Football has no basis on which to call itself the NGB for 

flag football in the U.S. in the applicable context of the Olympic aspirations of USA Football, the 

FFWCT, LLC; USA FLAG, LLC; AND 

TRAVIS BURNETT,

Plaintiffs,

v.

USA FOOTBALL, INC.,

Defendant.

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

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NFL, and others. To be the NGB, an organization must be certified by the USOPC. USA 

Football’s claim that “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 is incorrect. Under 

the Ted Stevens Act, certification is inherent in the phrase “national governing body”:

(9) “national governing body” means an amateur sports 

organization, a high-performance management organization, or a 

paralympic sports organization that is certified by the corporation 

under section 220521.

36 U.S.C. § 220501(b)(9) (emphasis added).

Dkt. 78 at 1, Second Bullet/Second sub-Bullet – USA Flag’s damages are not based on the 

proposed financial support being used by USA Flag to become the NGB. This is a red herring. 

Dkt. 78 at 2, Second Bullet/Third sub-Bullet – The meeting was about more than the NFL’s 

budgeting process. See e.g. Dkt. 57-18; Dkt. 74-2 (at NFL000065). USAFB’s assertion that Mr. 

Davis said Ms. Fields committed that the NFL would include USA Flag’s request in the NFL’s 

budget is misleading. Mr. Davis stated that Ms. Fields asked for a final budget from USA Flag to 

include in the NFL’s November budget meeting. Dkt. 73-1 at ¶ 7. USAFB’s comment that “even 

Burnett concedes that USA Flag never received a financial commitment from the NFL” is stating 

the obvious – the NFL, being confused, mistaken, and/or deceived by USAFB’s repeated false 

NGB assertions caused the NFL to not do business with USA Flag. If the NFL funded the proposal, 

there would be no need for a lawsuit.

Dkt. 78 at 2, Third Bullet – USAFB’s efforts to discredit the numbers in Mr. Porter’s expert 

report are baseless as it does not provide any evidence that he knew the October 2022 budget was 

not actually provided to the NFL. See Dkt. 73 at ¶¶ 10, 48, 49.1

1 Porter should be permitted to update his numbers based on the August 2022 proposal if, for some 

reason, the October 2022 proposal is not admitted into evidence. Otherwise, use of the October 

2022 numbers is justified because it was prepared at the request of the NFL. See Declaration of 

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Dkt. 78 at 3, Fourth Bullet, First Paragraph – As discussed at the beginning of this brief, 

the timing of the USOPC instructing USAFB not to call itself NGB is a genuine fact dispute that 

pits Ms. Riley’s testimony about the “correct timing” in late 2023 against the testimony of USAFB 

CEO Scott Hallenbeck (and departure of Ryan Horning from USAFB) placing the timing before 

the end of January 2022. Dkt. 73 at ¶ 13. USAFB seems to attack Hallenbeck’s credibility by 

referring to Riley’s timing as “correct” despite Mr. Hallenbeck’s testimony on the same issue.

2

 

Furthermore, construing this fact favorably to USA Flag places the USOPC’s admonition to 

USAFB no later than January of 2022,

3 which pre-dates USA Flag’s dealings with the NFL. This 

timing is material because it connects the failure of a potential deal between USA Flag and the 

NFL in 2022 with the NFL’s mistaken belief in 2022 as to USAFB’s claimed NGB status based 

on USAFB’s false statements during 2021-2022. See Dkt. 73 at ¶¶ 14, 35, 36 (re: USAFB’s 

statements to the NFL and the public that it was NGB in the USOPC/flag football context); see 

also Dkt. 73 at ¶¶ 16-20, 37, 38, 42-44 (re: NFL’s mistaken belief that USAFB was the NGB).

Dkt. 78 at 3, Fourth Bullet, Second Paragraph – USAFB’s assertion that it did not require

Mark D. Nielsen (submitted concurrently herewith) (hereafter “Nielsen Decl.”) at ¶¶ 3-5 and Exhs. 

1 (Hollomon Dep. at 128:12-23 – “...[the October budget] was put together at the request [of the 

NFL]...”) and 2 (Davis Dep. at 320:6-322:6 – “We were preparing that final number for [Ms. 

Fields] to take to her budget meeting in November”); see also Dkt. 74-5 (Burnett Dep. 282:25-

283:23) (“This would have come from feedback [from the NFL]”); Dkt. 75-2 (Davis Dep. at 279:2-

281:11); 73-1 (Davis Decl. ¶ 7); 74-3 (Hollomon Dep. at 131:19-25). Whether Hollomon 

ultimately sent the October proposal to the NFL (which he could not recall – Dkt. 74-3 (Hollomon 

Dep. at 132:10-22)) is irrelevant because the October proposal was updated based on the NFL’s 

input and more accurately reflects to the proposed deal.

2 The Sandras and Dibidale cases cited by USAFB support USA Flag’s position. Both courts 

denied summary judgment where, as here, a conflict between a deposition and declaration existed.

3 Even beyond construing the facts favorably to USA Flag, Ms. Riley read Mr. Hallenbeck’s 

testimony about the USOPC admonition during her deposition (Dkt. 57-8 at 179:15-18) and then

testified that she had no awareness of the circumstances to which Mr. Hallenbeck testified, saying, 

“[t]hat does not mean it did not happen.” Dkt. 57-8 (at 179:19-180:3). So, for USAFB to assert 

that Ms. Riley provided the “correct timing” does not hold water.

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“express permission” to call itself NGB “particularly during 2022” is refuted by 36 U.S.C. § 

220501(b)(9) (i.e., because USAFB has not been certified as NGB by the USOPC it cannot call 

itself the NGB), and the factual dispute regarding the timing of the USOPC’s admonition to 

USAFB about calling itself NGB. Furthermore, USAFB’s reliance on Dkt. 57-6 is misplaced. The 

December 20, 2023 letter portion of the exhibit indicates that certification of an NGB by the 

USOPC had yet to take place and is spoken of as future. Dkt. 57-6 at USAFB1650 (timing of the 

public hearings, recommendation, review, and approval process in 2025). The references to “your 

NGB” cited by USAFB is simply loose language that itself, at best for USAFB, creates a genuine 

dispute of material because no NGB exists as of this time, let alone that time. 

II. USA FOOTBALL’S USE OF “NATIONAL GOVERNING BODY” IS FALSE 

AND/OR MISLEADING (EVEN USA FOOTBALL CANNOT DECIDE WHAT IT 

MEANS)

A. USA Football is not Flag Football’s National Governing Body

Whether USAFB is an RSO or IFAF member is irrelevant to whether its repeatedly 

proclaiming to the world, in the USOPC/Olympics context, that it is the NGB in the U.S. for flag 

football, is an actionable statement under the Lanham Act. See Dkt. 73 at ¶¶ 2, 32-24.4 To try to 

persuade the Court otherwise, USAFB uses a straw man, i.e., that the actual phrase needs to be 

“certified national governing body.” This is hogwash. As noted above, under the Ted Stevens 

Act, which applies given the Olympics/USOPC context, certification is inherent in the phrase 

“national governing body.” 36 U.S.C. § 220501(b)(9). And if, as USAFB admits, “[t]he phrase 

‘national governing body’ is certainly susceptible to more than one reasonable interpretation,” then

construing the facts favorably to USA Flag, a reasonable jury could conclude that USA Flag’s 

4 USAFB continues to suggest that Section 1125(a)(1) of the Lanham Act can be collapsed into 

one violation for false advertising. Dkt. 78 at 4 n.3. If this were the case, then why did Congress 

include separate subsections (A) and (B) in Section 1125(a)(1) of the Lanham Act? USA Flag 

maintains that USAFB moved for summary judgment on a claim USA Flag did not assert.

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interpretation of “national governing body” under the Ted Stevens Act applies.

B. The NFL was Mistaken and Misled About USAFB’s NGB Status

Dkt 78, Section II.B, First Paragraph – In addition to the factual disputes regarding the 

literal falsity of USAFB’s claimed NGB status,

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genuine disputes of material fact also exist as to 

whether the NFL was mistaken, confused, or deceived by USAFB’s statements. See Dkt. 73 at ¶¶ 

16-20, 42-45. In its Reply, USAFB admits that the NFL viewed USAFB as the NGB. Dkt. 78 at

6 (“Those documents establish that the NFL understood USAFB’s status as the NGB within the 

flag football industry.”). The testimony of NFL and USA Flag representatives confirms the NFL’s

belief that USAFB was the NGB for flag football. See Dkt. 73 at ¶¶ 44, 54, 60.

Documents produced by the NFL show that USAFB pushed this narrative to the NFL. See

Dkt. 74-2 (at NFL22-23; 29-30; 34-36; 51-52; 53 therein); see also Dkt. 73 at ¶ 38 (USAFB 

testimony that USAFB referred to itself as NGB when discussing and presenting to the NFL). 

NFL-produced press releases and presentations also described USAFB as the NGB, reflecting the 

NFL’s belief and reliance on USAFB’s false claim (Id. at ¶¶ 17-20) further demonstrating the 

extent of NFL being mistaken, confused, or deceived.

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5 There is no dispute that USAFB is not the NGB as defined by the Ted Stevens Act. There is no 

such thing as a “certified national governing body.” Rather, certification by the USOPC is a 

requirement of being the NGB. 36 U.S.C. § 220501(a)(9). See also Dkt. 73-11(USAFB Response 

FFWCT Interrogatory No. 16 – “USAFB is not certified as a “national governing body” by the 

United States Olympic and Paralympic Committee as that term is used in the Ted Stevens Act.”); 

Dkt. 57, p. 14 (per 36 U.S.C. 220521, “a USOPC-certified national governing body for football 

could not have existed prior to flag football becoming an Olympic sport in October 2023.”); Dkt.

73-3 (Hallenbeck Dep. at 43:12-44:20; 55:4-58:25; 101:13-103:17).

6 USAFB’s assertion that “[t]he 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. 78 

at 5) is speculation and a self-serving reading of the cited testimony. Rather, the testimony 

indicates that the NFL did not have a clear understanding of whether USAFB was the NGB in the 

USOPC/Olympic context or the basis for such designation, if any. Read in a light most favorable 

to the non-moving party, this testimony supports the NFL being mistaken or confused on USAFB’s 

true status, but believing what USAFB admittedly told them that it was the NGB.

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Dkt 78, Section II.B, Second Paragraph – USAFB conclusorily argues that the NFL 

understood USAFB’s NGB status, and by implication the NGB process under the Ted Stevens

Act, such that the NFL could not have been mistaken, confused, or deceived by USAFB calling 

itself the NGB. USAFB is incorrect. In addition to footnote 6, supra, and the NFL’s testimony 

that it did not decide or really know about NGB designations (see Dkt. 73-10 at 59:4-61:17, 

117:18-119:12; see also Dkt. 57-10 at 114:4-10), documents produced by the NFL reveal the 

NFL’s mistake or confusion on the issue of USAFB’s NGB status in connection with flag football 

and the Olympics. See e.g. Dkt. 74-2 (at NFL3, 14, 29-30, 33, 47 therein). Accordingly, the NFL 

was not knowledgeable about the NGB process or USAFB's actual status with the USOPC. Thus, 

a genuine dispute of material fact exists as to whether the NFL was mistaken, confused, or deceived 

by USAFB’s representations of its claimed NGB status in the USOPC/flag football context.

Dkt 78, Section II.B, Third Paragraph – USAFB offers specious arguments conflating IFAF 

membership with NGB certification by the USOPC. The question is not what USA Flag 

understood or did not understand, but rather, what a stakeholder such as the NFL believed. As 

noted above, the NFL did not really know what NGB certification by the USOPC entailed. And, 

the NFL simply following IFAF’s lead does not help USAFB because IFAF does not decide the 

NGBs for Olympic sports in the U.S., the USOPC does; and, the USOPC has its procedures for 

NGB certification under the Ted Stevens Act about which the NFL was largely unaware. Because

the NFL’s main priority was flag football’s inclusion in the Olympics, pursuing this goal requires

the NFL to partner with the USOPC-certified NGB. Dkt. 73-10 at 72:20-73:6 (“The thing that was 

most important, I think, to all involved at that moment was that we would not do anything that 

could compromise our pursuit of LA28.”); see also Dkt. 57-24 (“Having the NFL brand associated 

with [USA Flag]...would cause...challenges with our Olympic efforts ...”). Thus, the NFL’s 

understanding and belief about USAFB being the NGB must be considered in the context of its 

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Olympic aspirations, which implicates the NGB rules under the Ted Stevens Act.

By publicly presenting itself as the NGB while highlighting its role in Olympic team 

selection, USAFB at least strongly suggested its NGB certification by the USOPC. See Dkt. 73 ¶ 

14; 16-17; 35-36; see also 36 U.S.C. § 220523(a)(6). This significantly contributed to a likelihood 

of mistake, confusion, or deception on the topic, including by the NFL. Id. ¶¶ 14, 18; Dkt. 57-23, 

57-24, 74-2 (at NFL 3-4, 53 therein). The NFL operated under the mistaken, confused, and/or 

deceived belief that USAFB was the NGB per the USOPC and the sole pathway to the Olympics

for flag football players. On this basis, the NFL decided not to pursue USA Flag’s proposal, and 

USA Flag was monetarily and reputationally harmed as a direct consequence. At a minimum, 

there is a genuine dispute of material fact as to whether the NFL was confused, deceived, or misled 

by USAFB’s proclaimed sponsorship or approval by the USOPC as NGB in violation of 15 U.S.C. 

§ 1125(a)(1)(A). The Court should deny summary judgment accordingly.

III. USA Flag has been Damaged by USA Football’s False Statements

USAFB’s statement at Dkt. 78 at 6 that “USA Flag now acknowledges multiple alternate 

reasons why the NFL did not pursue the proposed collaboration with USA Flag” misconstrues 

USA Flag’s statements at Dkt. 73 at ¶ 58. First, USA Flag’s statements in ¶ 58 were not a 

“concession.” Second, in ¶ 58 of Dkt. 73, USA Flag stated that the NFL never provided a reason 

to USA Flag as to why it decided not to do business with them, but that there could have been a 

number of reasons, including USAFB’s false statements that it was NGB. This is important 

because this is USAFB’s motion and it has failed to identify a reason in the record as to why the 

NFL decided not to proceed with USA Flag. The false NGB statements misleading the NFL (and 

others) is a plausible reason for which there is evidence. As such, the trier of fact should be 

permitted to receive the evidence and make its own determination as to whether the NFL decided 

not to move forward with USA Flag because of the false NGB issue or some other reason.

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IV. USA FOOTBALL SHOULD BE ENTITLED TO INJUNCTIVE RELIEF

USA Flag’s claim for injunctive relief is supported by the Davis Declaration as well as 

recent news articles reflecting Olympic-based sponsorships obtained by USAFB. See Dkt. 73-1, 

73-17. These demonstrate tangible and ongoing harm to USA Flag based on USAFB’s false claims 

regarding its NGB status and Olympic pathway and justify the need for injunctive relief.

USAFB’s false NGB claims secured sponsorships for it that should have been competitive 

opportunities for USA Flag. One example is the recent partnership between USAFB and Under 

Armour. The published announcement states that Under Armour will “dress the first Olympic 

team for the 2028 Summer Games as flag football and USA Football’s U.S. National Teams make 

their Olympic debut.” Dkt. 73-17 (at p. 2 therein). The article references USAFB’s highperformance path that will represent the country in the Olympics. Id. (at p. 4 therein). Because no 

NGB exists at this time, an Olympic pathway or claim to choose the team cannot presently be true. 

Thus, USAFB violates §§ 1125(a)(1)(A) and (a)(1)(B) of the Lanham Act by continuing to make 

or permit these false or misleading statements that tend to confuse, mislead, and deceive 

stakeholders and sponsors, including those USA Flag engages for sponsorships and other 

opportunities. Because these matters continue, and because the USOPC has yet to designate an 

NGB under the Ted Stevens Act, USAFB must enjoined to prevent further irreparable harm to 

USA Flag within the flag football marketplace. 

V. SUR-REPLY TO USAFB’S RESPONSE TO EVIDENTIARY OBJECTIONS

Dkt. 78 at 8, First Bullet – Ms. Riley’s claims of personal knowledge of the assertions in 

her declaration does not resolve the hearsay issues with at least ¶¶ 8, 9, and 12 of her declaration, 

or Exhibit E (Dkt. 57-7). Nor does her personal knowledge address foundation issues as to at least 

the who and what of the matters to which USA Flag objected such that sufficient indicia of 

reliability exist. For example, regarding ¶ 8 of Ms. Riley’s declaration, who at the USOPC 

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allegedly granted USA Football permission to refer to itself as NGB and how does Ms. Riley know 

that? Also, regarding Exhibit E to her declaration, who is Taylor Snow and what is Ms. Riley’s 

basis for asserting what he knew or did not know?

Dkt. 78 at 8, Second Bullet – The objection, which is unaddressed by USAFB, was lack of 

relevance as to USAFB being an RSO. See Dkt. 73 at ¶ 2.

Dkt. 78 at 8, Third Bullet – USAFB mistakenly relies on Fed.R.Evid. 803(3) in response 

to USA Flag’s hearsay objection, claiming that “Riley’s statements regarding past communications 

with the USOPC and the Trademark Agreement ... .” First, 803(3) hearsay does not cover “a 

statement of memory or belief to prove the fact remembered or believed ...,” which is all that 

Riley’s statements constitute.7 Second, Riley fails to place herself in any of the situations to which 

she refers such that she could have had a “emotional, sensory, or physical condition” (Fed.R.Evid. 

803(3)) to which she could hearken back. Reed v. Marmaxx Operating Corp., No. 4:14-CV-0010, 

2014 WL 5846408, at *3 (E.D. Tex. Nov. 10, 2014) (“the state of mind exception to the hearsay 

rule only applies where it relates to the declarant’s state of mind.”). Furthermore, the statements 

in at least ¶ 8 and likely ¶ 9 of Riley’s Declaration (Dkt. 57-2) are double hearsay. Thus, USAFB

failed to show that the hearsay exception in 803(3) applies to ¶¶ 7-9 of the Riley Declaration.

Dkt. 78 at 8, Fourth Bullet – USAFB uses the statements by Connect Sports to show 

Connect Sports’ belief that USAFB is an NGB. As explained above, USAFB cannot use a 

statement of belief or memory to try to establish that belief or memory as a fact. Fed.R.Evid. 

803(3). See footnote 7.

Dkt. 78 at 8-9, Fifth and Sixth Bullets – USA Flag’s objected to Dkt. 57-12, 57-13, and 57-

14 for lack of relevance. The fact that the exhibits were introduced in a deposition does not make 

7

See United States v. Liu, 960 F.2d 449, 452 (5th Cir. 1992); Versata Software, Inc. v. Internet

Brands, Inc., No. 2:08-CV-313-WCB, 2012 WL 2595275, at *10 (E.D. Tex. July 5, 2012).

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them relevant, as USAFB contends. USAFB also responded by stating that the exhibits are not 

hearsay, which makes no sense, and warrants sustaining USA Flag’s objections. 

As to Dkt. 57-25, USA Flag asserted a hearsay objection and USAFB responded that the 

exhibit and statements therein are not hearsay, apparently pursuant to Fed.R.Evid. 801(d)(2)(D)

(i.e., that Curtis Hollomon was an “agent” of USA Flag). USAFB’s response fails because it does 

not even try to satisfy its burden to establish that Curtis Hollomon was an “agent” of USA Flag8

in accordance with agency principles. See e.g., Dipprey v. Double Diamond, Inc., 637 SW 3d 784, 

804 (Tex. App. 2021) (citing cases).

Dkt. 78 at 9, Seventh Bullet – USAFB does not specifically address any of USA Flag’s 

relevance objections, but merely cites rules, including “[t]he test for relevance is a ‘low bar.’” But 

a “low bar” does not mean “no bar.” Unlike USAFB, the Court in Novick (cited by USAFB)

provided a basis for relevance of the objected-to evidence (and said, “irrelevant evidence is 

inadmissible”). Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 741 (5th Cir. 2020). USAFB’s 

failure to address any of USA Flag’s relevance objections warrants sustaining the objections.

VI. CONCLUSION

Refuting USAFB’s “Conclusion” in Dkt. 78 at 9-10, first, USA Flag identified additional 

undisputed facts to support its position (Dkt. 73 at ¶¶ 11-21) and disputed USAFB’s allegedly 

undisputed facts (Id. at ¶¶ 1-10). Second, this case is not about USA Flag trying to “usurp” 

anything. While USAFB’s choice of the word “usurp” is telling, USA Flag did not bring this case 

because it is not the NGB, but because USA Football has been telling the world, including the 

8

See Miciotto v. Hobby Lobby Stores, Inc., No. 21-30456, 2022 WL 3210686, at *5 (5th Cir. Aug. 

9, 2022) (failure of proponent of evidence to meet burden to establish applicability of Fed.R.Evid. 

801(d)(2)(D) affirmed); Jay v. Specialized Loan Servicing, LLC, No. 4:19-CV-680-RWS-KPJ, 

2021 WL 3738004, at *6 (E.D. Tex. Aug. 23, 2021), report and recommendation adopted, No. 

4:19-CV-680-RWS-KPJ, 2021 WL 4125103 (E.D. Tex. Sept. 9, 2021) (same).

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NFL, that it is NGB when it is not (Id. at ¶ 2), and this harmed and harms USA Flag. And, in terms 

of the NFL entrusting USA Flag, it is undisputed that the NFL invited USA Flag to meet. Id. at ¶ 

6. Whether or not USA Flag moved for summary judgment is neither here nor there. 

Accordingly, USA Football’s motion for summary judgment should be denied.

Respectfully submitted,

SCHEEF & STONE, L.L.P.

Date: July 5, 2024 /s/ Mark D. Nielsen

Mark D. Nielsen 

Texas Bar No. 24062361

Mark.Nielsen@solidcounsel.com

Bryan Haynes

Texas Bar No. 09283520

Bryan.Haynes@solidcounsel.com

2600 Network Blvd., Suite 400

Frisco, Texas 75034

(214) 472-2100 Telephone

(214) 472-2150 Fax

Michael C. Smith

Texas Bar No. 18650410

Michael.Smith@solidcounsel.com

113 East Austin Street

Marshall, Texas 75670

(903) 938-8900 Telephone

ATTORNEYS FOR FFWCT, LLC, USA 

FLAG, LLC, AND TRAVIS BURNETT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that on July 5, 2024, a true and correct copy of the foregoing was 

electronically filed with the Court using the ECF system, which will send a notification of the 

filing via electronic mail to all counsel of record.

/s/ Mark D. Nielsen

Mark D. Nielsen

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