Jury Begins Deliberations in Football Antitrust Case

The fate of the United States Football League, along with the credibility of the National Football League, finally went to the jury Thursday, but only after an eye-glazing 155 pages of instructions were read.

The instructions, Judge Peter Leisure’s charge to the jury on matters of the law, were mostly as anticipated, with both sides in this $1.69-billion antitrust suit expressing satisfaction in the judge’s orders.

The key to case for the USFL, which has charged that the NFL conspired to prevent it from gaining a television contract, among other things, is something called intents and effects. That is, the USFL must not only demonstrate that the NFL intended to become a monopolistic power but also that it acted on that intention.

For example, the NFL’s being privy to the so-called Porter Presentation, a seminar on how to put the USFL out of business, might demonstrate intent. That the NFL has all the TV contracts and the USFL has none might demonstrate effect. But Judge Leisure told the jurors that they must find that one led to the other before finding for the USFL under Section II of the Sherman Act.

USFL co-counsel Harvey Myerson was pleased, however, that under Section I of the Sherman Act, the USFL had only to prove either intent or cause concerning the evidence that there was no TV money available to the USFL, which had switched to fall football after three seasons of spring play.

“If we show the effect was to injure us, we win,” Myerson said.

Judge Leisure cautioned the jury, however, saying: “Antitrust laws were enacted to protect competition, not competitors. . . . The antitrust laws do not protect companies from the risks of business failure or the effects of vigorous competition, and the antitrust laws do not penalize a successful competitor.”

The NFL has contended that the USFL’s problems are a result of poor management and that the new league’s decision to switch to fall football, which was made after the NFL had signed its last TV contract in 1982, was motivated by hopes of a merger on the part of some USFL owners.

The USFL, meanwhile, has claimed that the NFL, bridling at the competitive fervor of a few rich USFL owners, systematically went about depriving those owners of television contracts and, additionally, hinted at NFL franchises for some USFL owners.

A seminar conducted by the NFL’s Management Council on how to kill the USFL, along with an internal memorandum on how to “spend the USFL dollar,” are important pieces of evidence for the USFL.

But Judge Leisure pointed out to the jury, which consists of five women and a man, none of them football fans, that the seminar and Jack Donlan’s memorandum “do not mean that the NFL engaged in any conduct, illegal or otherwise.” Much of the USFL’s case, however, means to show that NFL behavior did spring from those specific intentions.

One thing that Myerson was emphatic about Thursday was that this 2 1/2-month trial was critical to the survival of the fledgling football league. “If the USFL does not win the case--and by that I don’t mean a finding that the NFL violated antitrust laws; the NFL doesn’t care about that--if the USFL doesn’t win a substantial damage claim so that it can compete with the NFL, that is the end,” he said. “There will never be another football league in this country.”

At 3:57 p.m., EDT, the jury officially received the case. At 5:30, it adjourned for the day.