Football Jury Gets Ball Today : Final Pleas Are Heard in NFL-USFL Trial; a Bit of Cosell, Kafka

A popular and entrenched institution, which had either the genius or the guile to put a stadium seat in every living room, wound up a highly personalized defense Wednesday, while an upstart “itty bitty” league, which has neither the money nor the time to put its own seats in those crowded living rooms, concluded its case with the curious battle cry of “Kafka, Kafka, Kafka.”

And so ended the ongoing entertainment known in the U.S. District Court in Manhattan as the NFL-USFL trial, a spectacle that may well produce a landmark decision in sports.

Today the litigation goes to the nitty-gritty, with the judge, Peter Leisure, reading about 150 pages of instruction to a jury. That jury will then convene to determine the fate of the United States Football League, which has charged the established National Football League with antitrust violations, saying the NFL worked to prevent the USFL from obtaining a new and necessary network television contract.

What that jury will determine, way beyond what damages, if any, to award the USFL, looms large. If the jury decides that the NFL has behaved properly and awards no money to the failing USFL, that would surely undo the only other league, now and perhaps forever.

“The World Football League died, the American Football League was absorbed, and now if the USFL is allowed to go down the pipe, that’s it for professional football in this country, in our lifetime,” exclaimed the ever-theatrical Harvey Myerson, USFL counsel.

On the other hand, if the jury decides that the NFL in fact drove a wedge between the USFL and the television networks, or otherwise plotted to undo the competition, the senior league will be the poorer not only in money--the USFL seeks damages in the neighborhood of $1.69 billion--but also in credibility.

Wednesday’s summation had nearly everything to do with credibility. NFL counsel Frank Rothman spent the first half of his closing argument on the logic of his case but spent most of the second half inquiring into the credibility of such USFL witnesses as broadcaster Howard Cosell, Raider owner Al Davis and New York General owner Donald Trump.

Cosell, who had indicated in earlier testimony his contention that NFL owners were indeed aware that a supplemental draft was monopolistic, was dealt with kindly, at least in courtroom fashion.

Said Rothman: “With respect to Mr. Cosell, I thought long and hard about how to fairly respond to Mr. Cosell. And perhaps the thing I ought to say is, one, you saw him.

“There was a great movie once made called ‘Twelve Angry Men’ where 12 jurors go into a jury room to deliberate and one of the jurors is an elderly gentleman, and you finally find out what the problem is when he says, ‘Nobody listens to me anymore.’ And I think that’s Mr. Cosell.”

Rothman also shrugged off testimony from Davis that seemed to suggest that the NFL was sidling up to USFL owners, to “co-opt” them, as the expression of the day goes, and to undercut the USFL’s financial strength. Davis and NFL Commissioner Pete Rozelle are old enemies, and that’s that, Rothman suggested.

But most of Rothman’s vitriol was saved for Donald Trump, a merger-manic tycoon who, according to the NFL, would sell his USFL colleagues out for a chance at a New York NFL team.

“He was going to buy a cheap USFL franchise and force his way through litigation and merge with the NFL,” Rothman said. “And Mr. Trump used some poor, unfortunate people.”

Trump, New York’s most visible builder, was in the courtroom and colored somewhat as Rothman said that Trump’s “real estate activities were designed to rape the Jets’ season ticket-holders.” Rothman declared that the whole idea of switching to fall football, from the original concept of spring football, lay in Trump’s greed.

Later, Trump just shrugged. “They needed to create a bad guy because they don’t have a case,” he said. “He says, ‘Hey, look at so and so. He’s got a couple of bucks, let’s go after him.’ ”

USFL Commissioner Harry Usher said it could backfire for the NFL. “The jury might like Trump,” he said.

Evidently the NFL thinks that the jury will like the simplicity of its logic, which is basically that the league has worked hard for 67 years and sewed up contracts on all three major networks because of its good works. Anyway, the last of them, with the approval of Congress, was signed in 1970, 12 years before the USFL came into being.

“My question to you is: What was the NFL supposed to do at that point?” Rothman said. “Are we supposed to call in the three networks and sit them in a room and say: ‘Gentlemen, here is a new league that wants to start. They can’t wait until 1987 when our (five-year) contract is up, so I think we have to cancel one of our contracts with you.’ ”

Concluded Rothman: “What were we to do?”

It is the NFL’s contention that the USFL should have continued spring football and not gone to fall football, which leaves their only hope a merger.

In fact, Rothman stressed the merger motive throughout the morning, holding Trump to blame, although merger is not the question. In fact, Rothman warned that USFL would likely try to characterize the trial as David vs. Goliath, “while I suggest it is Donald vs. Goliath.”

The USFL, meanwhile, attacked on more specific points, with Myerson, his voice booming and fading as he theatrically used the microphone, charging the NFL with pressuring the networks to maintain a monopoly.

As much as Rothman seemed to dislike Trump, Myerson disliked Rozelle, calling him Alvin Peter Rozelle at every turn, with a contempt that could wither an entire courtroom.

Myerson’s distaste for Rozelle, which also serves to personalize a large institution, goes to conflicting testimony, in which Trump said he was told by Rozelle that he had a very good chance for an NFL franchise. Rozelle said otherwise.

Myerson also rehashed the famous “Harvard Study,” the USFL’s smoking gun. Commissioned by the owners’ NFL Management Counsel, the so-called Porter Presentation suggested ways to kill the USFL, either by co-opting the richer owners or forcing ABC to discontinue its USFL contract by giving the network a weak Monday night football schedule.

The NFL has maintained that this smoking gun is merely a loaded gun, that nothing ever came of it. “He made a Tupperware party sound like a terrorist conspiracy,” Rothman complained.

In fact, the NFL now downplays the whole idea. “He made a professor’s presentation,” Rothman said of Michael Porter’s little seminar. “He didn’t know what he was saying.”

The USFL takes it a lot more seriously, and Myerson charged that the Porter Presentation signaled two important things, issues that are at the heart of antitrust activity: Intent and effect. The NFL wanted to crush the USFL, thought about how to do it, and went ahead and tried some things, he said.

For sure, Myerson was the more effective of the lawyers, or at least the more entertaining. He again invoked Franz Kafka, the novelist who was brought to his attention by his daughter Rachel.

The idea that black is white and so forth appealed to Myerson, especially as it related to the NFL. “It’s their game plan,” he said of the NFL’s alleged duplicity. Over the course of the day, Kafka may have been mentioned more than Porter or Trump.

But Myerson has had the trickier charge in this case, trying to prove intent and effect. The effect is obvious; the USFL has no TV contracts, the NFL has three. And the Porter Presentation, and later the Jack Donlan memorandum on how to spend the USFL’s money, would seem to indicate intent.

But the judge’s instructions may make it difficult to link the two and what may seem conspiratorial to the USFL may just be circumstantial to the NFL. In which case it will be business as usual.

USFL-NFL TRIAL TRIVIA

USFL NFL Plaintiffs (USFL)/ Usfl and 16 former NFL, 27 of 28 clubs and Defendents (NFL) current clubs Commissioner Pete Rozelle Witnesses 24,20 live and 4 by 20,13 live and 7 by deposition deposition Exhibits 52 documents, charts, 114 documents, charts videotapes and one and videotapes football jersey Damages $301 million to $565 Sought million (before tripling)

Trial Days: 43 days over 11 weeks Pages of testimony: 6,551 pages when the USFL rested its rebuttal case Tuesday