Whom Do You Trust in This Antitrust Case?

In its antitrust suit against the National Football League, the United States Football League has covered everything from Kafka to Kukla, Fran and Ollie, with a brief interlude to allow the USFL’s most influential owner, Donald Trump, to defend himself against charges that he instructed waiters in his midtown Manhattan hotel to spy on NFL owners.

Trump, a billionaire real estate developer, was called to testify last week as the USFL brought its case to a dramatic climax with a Murderer’s Row of witnesses. Following Trump to the stand were Al Davis, managing general partner of the Raiders, and Howard Cosell, who usually needs no introduction.

But with this jury of five women and one man, who knows? At one point, NFL Commissioner Pete Rozelle was asked to explain to the jury the difference between a home game and an away game. This is as the USFL wants it. Its attorneys successfully challenged every prospective juror who had heard of The Refrigerator and even some of those who owned refrigerators.

Of the six jurors who started with this trial in U.S. District Court more than seven weeks ago, only one admitted to having even the slightest interest in sports. He later was excused because of a work-related conflict and was replaced by an elderly woman born and raised in England, who said, “I don’t really understand American football.” Two of the jurors were born in the West Indies and one in Panama.

After the NFL presents its case, which could take another month, the jury will be asked to determine the verdict in a trial that could significantly change professional football as we know it, or at least as we view it.

The USFL, which in 1983 introduced spring football because, as its owners said at the time, it did not want to compete with the NFL in the fall, now charges that it is on the verge of extinction because the NFL has made it impossible for another league to compete in the fall.

Specifically, the USFL hopes to prove that it is unfair for the NFL to have contracts with all three major television networks. The USFL’s first fall season, scheduled to begin in September, will be televised only by cable and independent stations.

During his first visit to the witness stand, USFL Commissioner Harry Usher said the NFL “pushed and shoved” the USFL into its precarious position. Upon recall a few days later, Usher said the NFL “bashed and bludgeoned” the USFL. If Usher makes one more trip to the stand, this trial will be rated PG-13 for excessive violence.

In its defense, the NFL claims that it did not have to push, shove, bash or bludgeon, that the USFL self-destructed. One bit of evidence that the USFL does not attempt to dispute is the passing of the L.A. Express, which has been ruled a suicide. Furthermore, the NFL charges that the only reason the USFL filed a lawsuit was in a desperate attempt to force a merger with the NFL.

“Blackmail litigation,” Rozelle called it.

If the NFL wins, it will not have the USFL to “bash” and “bludgeon” anymore. Usher said the league, which began with 12 teams, expanded to 18 and now has 8, would fold after the coming season, although Trump has indicated he might shut down his team, the New Jersey Generals, before the season.

That would enable the Generals’ star running back, Herschel Walker, to play for the Dallas Cowboys, who own his rights in the NFL. In an effort to prove that NFL teams tampered with USFL players, the USFL asked Walker to testify about the Cowboys’ contacts with him, including the time they presented him a jersey with his name on the back.

“Do you mind if he holds the jersey up, Your Honor?” USFL attorney Harvey Myerson asked.

“Your Honor, we don’t mind if he puts it on,” one of the NFL’s attorneys responded.

While the outcome of this trial has been called a matter of life and death for the USFL, neither is the future of the NFL assured if it loses.

Depending on the formula, the USFL is asking for between $903 million and $1.695 billion in damages from 27 of the 28 NFL teams. The Raiders were excluded because the USFL contends they are the only NFL team that did not contribute to the bashing and bludgeoning. Consistent with his maverick image, Davis is the only NFL owner to testify on behalf of the USFL. If the USFL is awarded full damages, the 27 NFL defendants each would owe between $33.4 million and $62.7 million.

“We would own the NFL,” Usher said.

Legal experts say it is unlikely that the court would allow the USFL to collect on an amount in that range, even if the jury awarded it. They say, however, there is a possibility that the jury’s verdict would withstand an appeal if it found that the NFL’s contracts with the three television networks inhibit competition from another league.

If the USFL wins an injunction to that effect, the NFL might have to forfeit its existing contracts with one or more of the networks. Or the NFL might be allowed to retain its contracts with the three networks as long as the USFL also has a network television contract for the fall.

Such a ruling might induce the NFL to seek a settlement with the USFL, a solution that Judge Peter K. Leisure has suggested on two occasions. Before the trial began, Trump said the USFL would settle if four of its franchises were adopted by the NFL.

The four most often mentioned are Trump’s Generals, who would move across the Hudson River into New York City; the Baltimore Stars; the Memphis Showboats, and the Arizona Outlaws, who play in Phoenix. Those four are significant not only because they have had relative success in the USFL but also because there are influential Senators from those states who want NFL teams. The NFL no doubt would want them on its side when it resumes its campaign in Washington for antitrust legislation that will protect it from suits such as this one and the one that the Raiders and the L.A. Coliseum Commission won against the NFL.

Will the NFL’s antitrust losing streak continue in this trial?

Last week, at halftime, both sides agreed that the USFL appeared to have an edge.

“We’re holding three jacks and an ace in five-card stud, and nobody’s folding,” said Jerry Argovitz, a former USFL owner whose Houston team was named the Gamblers.

NFL owners, however, pointed out that they have just gone on offense.

“I’d say we’re about a touchdown and a safety behind,” Cleveland’s Art Modell said after the USFL completed its case. “Now we’ve got the whole second half to catch up.”

Lon Sobel, a professor at the Loyola Marymount Law School and editor of the Entertainment Law Reporter, has been an outspoken critic of NFL antitrust practices. After reviewing the facts in this trial, however, he said he does not believe the USFL can prove the NFL violated the Sherman Antitrust Act.

“But just because I think the case ought to go one way doesn’t mean that’s the way it will go,” Sobel said. “The NFL has to be very worried about a jury.”

No one can predict what will influence a jury. A juror might be swayed because the NFL’s paternalistic attorney, Frank Rothman, reminds her of her father. The USFL’s flamboyant attorney, Myerson, might have the jurors under a spell. His efforts to accomplish that have been hardly disguised. During his opening statement, he looked directly into the eyes of the lone black juror and said: “My client had a dream. It happened to be the dream this country is founded upon . . . opportunity.”

After the Raiders and the Coliseum Commission won their suit against the NFL, the Raiders’ in-house counsel, Jeff Birren, interviewed the jurors. He said several of them were repelled by witnesses who had vivid memories of conversations or incidents when it was to their advantage to remember and no memory of conversations and incidents when it was not to their advantage.

If this jury is similarly offended, the NFL may be hopelessly behind, particularly in regard to the testimonies of Rozelle and the NFL’s in-house counsel, Jay Moyer, although the USFL’s Trump almost singlehandedly evened the score.

After Moyer’s testimony last week, Davis left the courtroom muttering about how the NFL had “emasculated” itself.

Later, in an interview, Davis mocked Moyer’s testimony.

“ ‘I don’t know, I don’t know, I don’t remember, I don’t remember,’ ” Davis said. “That’s not the NFL; that’s sleaziness.”

Davis, who has been testifying against the NFL almost as long as Jim Plunkett has been quarterbacking, was a compelling witness, the Southern accent he acquired while coaching at The Citadel dripping with sincerity. He spoke to the jurors as if they were sitting together on somebody’s front porch in Charleston, treating them with the respect that any gentleman would show his neighbors. When Myerson suggested that the jurors might not know the meaning of the word parity, Davis smiled at them and said, “I’m sure they do.”

Even Myerson was mesmerized. “He’s the kind of witness any trial lawyer would be proud to have,” Myerson said.

Davis was eloquent in his charge that the NFL and the City of Oakland, including members of the Oakland Coliseum Commission, conspired to destroy the USFL’s Oakland Invaders, just as, he said, they had conspired against the Raiders. Everyone agreed that Davis hit his target, although NFL owners admitted to being only grazed.

When Davis finished, San Diego Chargers owner Alex Spanos said NFL owners went to Rozelle’s office and counted their blessings because the Raider owner had not hurt them worse.

“You should hear all the things I left out,” Davis said as the courtroom began to clear. Moments earlier, it had been filled to capacity with about 150 interested parties, reporters and other observers.

The main event was still to come.

On the next morning, the USFL called, as its final witness, Howard Cosell. Not only were all the seats taken, but for the first time since the trial began, the bailiff allowed people to stand along the outer edges of the courtroom. When those areas too were filled, the bailiff had to deal with 20 to 30 people who were extremely agitated because they could not get inside to hear Cosell. Agitated they should have been, because they missed the show of shows.

After a 39-minute introduction of himself, including the story of his television debut as a summer replacement for “Kukla, Fran and Ollie,” Cosell began to tell it like it is. How did the jurors know? He told them on at least three different occasions.

Some of it was even relevant to the case.

As Cosell, in his best Monday Night Football voice, was rambling toward some innocuous point, Rothman started to object.

“I know it’s irrelevant, Mr. Rothman, but it’s colorful,” Cosell said.

Although the two are are on opposite sides in this trial, they are longtime friends, and Cosell took several good-natured shots at Rothman, who, as the chairman of MGM-UA, once tried to buy Cosell’s show, “SportsBeat,” for syndication.

“I’m not as smart as you, sir,” Rothman said at one point.

“Well, Frank, we learned that long ago,” Cosell said.

At another point, Rothman said he would speak slowly so that Cosell would have no difficulty understanding a complicated question.

“If you ask a question I don’t understand, you’ll have the story of the century,” Cosell said.

Cosell testified that, in its efforts to compete against the NFL, the USFL was “using a slingshot against Goliath,” which is probably how Rothman felt.

Even though Rothman formerly was Cosell’s attorney, Cosell, also an attorney, gave the legal advice from the stand in New York. Cosell advised Rothman that he was representing the wrong side, concluding with the admonishment, “Wise up, Frank.”

Not for the first time since this trial began did Rothman appear overwhelmed. If style is important, the USFL’s attorney, Myerson, is far ahead on points.

Rothman, 59, is tall and fit, has a receding hairline and wears wire-rimmed glasses. His is a conservative look, and he has a demeanor to go with it. He looks like the sort of attorney who would represent AT&T;, which he once did.

While Rothman has practiced in Los Angeles for more than 30 years since receiving his law degree from USC, his counterpart is all East Coast, growing up as a “street kid” in Philadelphia before going to Columbia University Law School. Myerson, 47, is chunky, with a full head of wavy black hair and bushy black eyebrows.

Rothman wears gray suits in the gray-suit world of Foley Square. Myerson stands out in dark suits with colorful handkerchiefs to match his ties.

Myerson’s language is equally colorful.

In his opening statement, Myerson told the jury about Franz Kafka, the Czechoslovakian novelist who wrote about the abuse of power.

“I don’t know who Kafka is, but my 9-year-old daughter, Rachel, goes to a spiffy school,” said Myerson, pacing from one side of the courtroom to the other, as he often does. “She told me people look at things and say the opposite. Black is white, and white is black. . . . That’s Kafka. That’s an easy word. Kafka, Kafka.”

Myerson said the USFL is a “little, itty-bitty league,” trying to compete with a “big, big, big business--billions of dollars.” He said the NFL’s actions against the USFL represent “one of the greatest wrongs perpetrated under the antitrust laws of the country.”

He has called NFL owners “henchmen.” Each time he refers to Moyer, he calls him “Moyer, the lawyer,” as if he himself, Myerson, is something other than a lawyer.

In fact, Fortune magazine has called Myerson one of the nation’s top five litigators. He is a partner in one of the largest law firms in the country--Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey.

Myerson approaches a hostile witness the same way Ty Cobb did second base, with his spikes up.

“Stop yelling at me,” insisted one witness, Jack Donlan of the NFL Management Council.

“If you give me an answer, I will,” Myerson yelled.

“Mr. Myerson, control yourself,” Judge Leisure said.

Myerson, who has missed several days of the trial with a stomach ailment, caused either by nerves or the big, foul-smelling cigars he smokes, said later: “I’m an emotional guy. I get wrapped up in this stuff.”

When Rozelle was excused from the stand after being examined by Myerson for five days, the NFL commissioner said: “I feel like a hostage being let go.”

Rozelle had it easy compared to Roone Arledge, who is president of news and sports for the ABC broadcast group but has been relieved of his duties for the day-to-day activities of ABC Sports.

When Myerson pointed out that the USFL had earned $27 million in two years for ABC while the NFL had lost approximately $26 million for the network in the last two years, Arledge, defending ABC’s commitment to the NFL over the USFL, said: “There are other considerations besides profits.”

“Is that the reason you no longer are in charge?” Myerson said.

“I don’t know the purpose of that somewhat nasty question, but the answer is no,” Arledge said.

If the USFL loses, it will be because Myerson was not given enough ammunition.

Leisure, the judge, who would be better suited to the bench in California than in New York, ruled before the trial began that the NFL did not violate antitrust laws simply by signing contracts with the three networks. However, he said the USFL could win a judgment if it proved the effect or the intent of the contracts was to eliminate competition from a rival league.

Thanks to testimony from Rozelle before Congress more than two decades ago, the USFL has been able to support its claim regarding the effect of the NFL’s contracts with the three networks.

Appearing before Congress on behalf of the 1961 Sports Broadcasting Act, Rozelle was asked if it would leave a league at a competitive disadvantage if the networks were “tied up” by another league.

“I should certainly think so,” Rozelle said.

As for whether the intent of the contracts was to gain an unfair advantage, the USFL has tried to prove that the NFL conspired with the networks to prevent the USFL from successfully negotiating a fall contract.

Central to the USFL’s case is a study prepared by a Harvard Business School professor for the NFL Management Council and entitled “How to Conquer the USFL.”

Among the suggestions: “Attempt to dissuade ABC from continuing USFL contract.”

ABC televised the USFL’s first three spring seasons and offered the league a contract for four more spring seasons but would not negotiate to televise USFL games in the fall.

“What happened was that once competition on players’ salaries was really realized, the NFL went up to Harvard and got the strategy to interrupt the flow of our television money,” said Usher, who was executive vice president and general manager of the L.A. Olympic Organizing Committee.

“It was a brilliant plan, a brilliant strategy. The net result is that we are dying. We have been pushed and shoved by the NFL into the situation. It is the NFL’s business plan and choice. We are the little guy and they are the big guy and that’s what this suit is all about.”

Rozelle said the NFL did not act on the Harvard study because he recognized that it was illegal.

He said he became “physically ill” when he received the report.

“To your stomach?” Myerson said sarcastically.

“To my stomach,” Rozelle said.

Network officials also have denied that the NFL pressured them not to negotiate with the USFL, saying that there was not enough demand for the USFL in the fall to justify the rights fees of $36 million that the league was asking.

Arledge once compared the USFL to pro bowling.

The NFL argues that the USFL conquered the USFL. At its inception, the USFL was a spring league whose officials said they intended to hold down payrolls and did not plan to compete with the NFL for players. The NFL claims that the USFL failed because it admitted owners into the league, such as Trump, who abandoned the plan.

The NFL also has submitted documents from other USFL owners in an attempt to prove that Trump was the author of a strategy designed to force the NFL to merge. Trump admitted that he considered merging with the NFL to be an option but that he preferred for USFL owners to establish a league of their own in the fall.

Instead of the USFL vs. the NFL, the trial at times has been reduced to Trump vs. the NFL. Trump’s personal stamp is on many of the league’s actions of the last three years, down to the selection of an attorney. Myerson previously has worked for Trump.

When Myerson referred to the USFL as a “little bitty league,” Rothman scoffed.

He called Trump a “multi-multimillionaire (who) can buy and sell many of the owners in the NFL.”

When Trump, 40, bought the Generals, he paid $5 million. If the Generals become an NFL team, they would be worth approximately $70 million.

But Trump said that was not his motivation in encouraging the suit against the NFL.

“I don’t look for bargains,” said Trump, who is worth an estimated $2 billion.

NFL owners wonder what Trump was looking for when they met at one of his New York hotels, the Grand Hyatt, two years ago. In a speech to USFL owners, Trump bragged that he had waiters at the hotel spy on the NFL owners. Trump said on the stand last week that he was “just joking.”

As Cosell said, it’s irrelevant. But it’s colorful.