Attorneys for opposing sides painted vivid, yet contradictory, pictures of conspiracy, backroom conniving and "smoking guns" in opening statements of the U.S. Football League's $1.32 billion antitrust suit against the National Football League.
Attorney Harvey Myerson, representing the USFL, told the six-person jury in an 87-minute statement that the NFL "conspired, deceived and intended in every way possible to put the United States Football League out of business" by keeping the USFL off network television in the fall and by keeping the league out of such markets as New York and Oakland.
Myerson stressed the vital importance of a network contract and said, "If the NFL doesn't cut [the networks] off at the neck altogether . . . they do it much more subtly." He alleged that the NFL pressured the networks away from the USFL by threatening them "with a lousy schedule" of NFL games.
In opposition, attorney Frank Rothman, representing the NFL, told jurors during his 82-minute statement that the USFL club owners mismanaged until "chaos set in everywhere" during their league's three spring seasons. Rothman said owners then followed the lead of New Jersey Generals owner Donald Trump, who, he said, entered the league in 1984 promoting "a campaign to create a merger" with the NFL.
As examples of mismanagement, Rothman cited the USFL's numerous franchise relocations and alluded to the multimillion-dollar contracts awarded running back Herschel Walker and quarterback Steve Young, deals he said shattered the USFL's agreed-upon "fiscal restraint."
Rothman said the current contract of USFL Commissioner Harry Usher specified that Usher could receive as much as "$3.2 million" if a merger between leagues took place and would receive a $300,000 annual salary otherwise. Usher admitted today that he would receive additional money if a merger took place, but termed the $3.2 million "inaccurate" and said "I'd get more" if the USFL secured a network contract.
The USFL is attempting to prove that the NFL violated Sections 1 and 2 of the Sherman Antitrust Act by "tying up" all three networks. Since it decided to move from a spring schedule to the fall of 1986, the USFL has been unable to secure a network contract.
Besides damages, the USFL is seeking injunctive relief to force the NFL off at least one network so the USFL might negotiate for exposure on that network. Judge Peter K. Leisure is presiding over the trial, which is expected to last about two months.
The USFL will call NFL Commissioner Pete Rozelle as its first witness Thursday. Rozelle could remain on the stand for several days.
During today's statements, Myerson portrayed the USFL as an "itty-bitty league" that is "trying to stand on our own little square of turf" against the NFL monolith. Rothman portrayed the NFL as a 67-year-old entity that built itself "in the American spirit" and now battles " USFL men of great wealth who are seeking to make a financial killing."
Rothman insisted the NFL's television contracts are "not exclusive." He said, "[USFL attorneys] argue that we have tied up the networks. Tied up? They have nothing but [free] space."
Myerson said the USFL has uncovered what he called "three smoking guns," including two interoffice memorandums written by NFL executives. One was written by Management Council head Jack Donlan in 1983, suggesting the NFL force the USFL to raise salaries of its players or risk losing them to the substantial offers of the NFL (the NFL said this memo was never dispatched from the league office); the other memo was written by NFL general counsel Jay Moyer, suggesting that "an open network may well be an open invitation for the formation of a new league."
Thirdly, Myerson alleged that in 1984 the NFL sent 65 of its "owners and other people from their league office" to Harvard University Business School to examine a study on "how to conquer the United States Football League," which, he said, was commissioned by the NFL.
In response, Rothman said the Harvard gathering was a "seminar" similar to ones held in 1981 and 1982 for club officials regarding negotiating player contracts. Rothman said a Harvard professor overstepped his bounds by creating the study, which he said was unsolicited (and never acted upon) by the NFL.
Myerson said he will call as witnesses Sen. Alfonse D'Amato (R-N.Y.), Vincent Tese, chairman of the New York State Urban Development Corp., and perhaps Gov. Mario Cuomo to show that the NFL conspired to keep the USFL out of New York City by advising city and state officials that the New York Jets of the NFL might return to the city from East Rutherford, N.J.
Leisure ruled this morning that the USFL could introduce testimony that showed how the NFL kept the USFL out of New York City, but could not subpoena documents pertaining to the Jets' move.
Myerson said Al Davis, managing general partner of the Los Angeles Raiders of the NFL, will testify how "at an NFL secret owners meeting" it was "agreed that they wouldn't put an NFL franchise in New York City" even though, outwardly, the NFL "tried to pull the strings of you and I and everybody else" that such a possibility existed.
In a pre-opening statement discussion with the judge, Rothman said allegations about a "secret meeting" were cut "totally, totally out of whole cloth." He said NFL attorneys searched records of all league meetings and spoke with team owners and Rozelle and, Rothman told Leisure that, "We do not believe that any such meeting ever took place nor was there an agreement among National Football League owners to exclude a franchise from New York."