Sometime Thursday, the future of the professional football industry will be left in the hands of a jury of six New Yorkers, none of whom claims to be a football fan.
The jury includes five women, two of whom never had heard of the four-year-old U.S. Football League when the trial began 10 weeks ago and a third who had not heard of either the USFL or the 67-year-old National Football League. Now, they've heard plenty about each -- the charges, the denials and many contradictions. Who will the jurors believe?
The NFL rested its defense Thursday in this $1.69 billion antitrust suit, in which the USFL alleges the NFL illegally "tied up" the three television networks and conspired to keep USFL teams out of such markets as New York and Oakland, all in violation of Section 2 of the Sherman Antitrust Act.
Besides damages, the USFL seeks to force the NFL to give up at least one network contract so that the USFL might negotiate a deal with that network when it plans to move from a spring schedule to the fall in 1986.
The USFL is expected to call several rebuttal witnesses Monday and Tuesday. On Wednesday, attorneys Frank Rothman of the NFL and Harvey Myerson of the USFL will each give about a three-hour summation. Judge Peter K. Leisure then will instruct the jury Thursday morning, and how he states these instructions may be crucial in directing the jury toward a verdict.
At that point, the two sides will sit, wait and squirm plenty. Huge sums of money are at stake for the NFL. Its very existence may be at stake for the USFL.
Both sides continue to insist a pre-verdict settlement won't happen. Officials of the two sides are expecting a verdict after a week's deliberation, give or take a few days. It could be much shorter or much longer. How the jurors interpret the law is vital in the verdict-reaching process.
Although the USFL has plotted out an entire fall season, with all eight member clubs scheduled to begin training camp in mid-August, New Jersey owner Donald Trump testified that whether the USFL will play its first fall season in 1986 "is dependent upon the outcome of this trial."
The NFL's defense was compact, to the point. The league called just 13 witnesses and read into the record the depositions of several others. It used just 14 of its allotted 18 days. (The USFL had 19 witnesses over 24 trial days.)
Both Rothman and Robert Fiske, the NFL co-counsel, fine-tuned their direct examination of witnesses so as to limit the scope of cross-examination by Myerson, the USFL's crafty and pugnacious chief counsel. Cross-examination is limited to questions asked in direct examination, except under extraordinary circumstances.
The NFL's final witness was its commissioner, Pete Rozelle, who contradicted earlier testimony given by Trump, owner of the New Jersey Generals of the USFL. Trump testified that, in a meeting between the two at the Pierre Hotel in Manhattan in March 1984, Rozelle promised him an NFL franchise if the USFL remained as a spring league and did not file an antitrust suit against the NFL.
However, Thursday Rozelle testified that Trump offered to bring no suit and sell the Generals to "some stiff" if Rozelle granted him an NFL franchise. This represented one of many contradictions in the case. One NFL official termed Rozelle's testimony "dramatic" and said, "Since Harvey Myerson started pounding his fists on the table against us a couple of months ago, we've come a long way."
How far the NFL has come is unclear. The USFL's final witness -- sportscaster Howard Cosell -- gave extraordinarily dramatic and colorful testimony on June 25. Cosell testified, during nearly four hours on the stand, that former ABC Sports chief Roone Arledge told him he was being pressured by the NFL for televising USFL games. Arledge had denied this in earlier testimony.
Cosell's testimony followed testimony by Trump and the Los Angeles Raiders' Al Davis, the only NFL owner not named as a defendant in this case, and seemed to give the USFL some momentum.
A crucial part of the NFL's subsequent defense included testimony from Arthur Watson (president of NBC Sports), Frederick Pierce (former president and chief executive officer of ABC) and from William Grimes (president of ESPN, a cable network specializing in sports programming). Each testified that the NFL did not exert pressure or attempt to coerce their networks to keep the USFL off the air.
Earlier, executives of CBS and ABC testified similarly. The testimony of these network executives seemed significant inasmuch as Judge Leisure, in a pretrial written opinion, noted "television is at the heart of this case."
The NFL's defense included two other crucial points:
First, Jets owner Leon Hess denied in testimony the existence of a so-called "New York conspiracy." The USFL has charged Hess and the NFL misled New York government officials into believing the Jets would return from New Jersey to the city as a way to keep a USFL team out of New York, the nation's top television market.
The NFL also used testimony from Dr. Bruce Owen, an economist, to refute earlier testimony given by Dr. Nina Cornell, a Washington economist who, in testifying on behalf of the USFL, said the younger league was due a damage award ranging from $301 million to $565 million from the NFL based on two different methods of analyses. All damage awards in antitrust cases are automatically tripled.
Owen, a former chief economist in the antitrust division of the Department of Justice and now president of Economists Inc., a D.C. firm, testified the USFL was due "negative damages," which means no damages.
In five days, the jury will begin its deliberations.