A look of incredulity, set off by a faint smile, crossed Howard Cosell's face, as if he could not believe the question he was hearing.
The former television sportscaster had spent all last Wednesday morning, at times to roars of laughter, testifying on behalf of the United States Football League in its $1.32 billion antitrust suit against the National Football League, and, for the first time since he took the stand in U.S. District Court in Manhattan, he appeared at a loss for words.
On cross-examination, the NFL co-counsel, Frank Rothman, had just asked Cosell if he knew Tex Schramm, the president of the Dallas Cowboys, and NFL owners Wellington Mara of the New York Giants, Arthur Modell of the Cleveland Browns, Alex Spanos of the San Diego Chargers and Leon Hess of the New York Jets. Cosell said he did. In fact, all except Hess were present in the courtroom.
Now Rothman asked him: "You find them each to be men of high integrity?"
July 6, 1986
After gazing disbelievingly at Rothman, Cosell finally said, "Men of high integrity?... I don't think they are villains, Sir. I do think they have been misled and their actions have not been in the public interest."
Having led once with his chin, Rothman led with it again.
"Do you find them to be truthful men, Sir?" he asked.
Now Cosell did not hesitate. "Not in recent cases involving actions of the National Football League, Sir," Cosell said.
What Rothman had done, before the jury of five women and one man, was elicit testimony that challenged the actions of five NFL leaders and raised questions about their truthfulness. A cardinal rule in trial interrogation is that you never ask a witness, particularly a hostile one, a question to which you do not already know the answer.
Not that any of Cosell's answers were foreseeable. In four hours of testimony laced with humor, sarcasm, anger and bombast and delivered with all the famous Cosellian voices, ranging from sedate storyteller to wounded bull, he transformed room 318 from a courtroom to a stage, and he needled Rothman at every turn.
"I'm not as smart as you are," Rothman, who once represented Cosell, said at one point.
"Well," said Cosell, "we have learned that long ago."
At another, Rothman told Cosell, "If I ask you a question that you don't understand, you stop me." To which Cosell fired back, "If you ask a question that I don't understand, you will have the biggest story of the century."
Repeatedly extolling the virtues of "free enterprise, open competition," Cosell accused the NFL of antitrust activity and told a story of one day meeting Chuck Sullivan, a lawyer and executive vice-president of the New England Patriots, at a Madison Square Garden party in late 1983.
"Chuck Sullivan arrived that night in a rock and roll music outfit," Cosell said. "Jeans, open neckerchief, cowboyish kind of shirt with two other rock and rollers...I always talked to him kind of laughingly because I enjoy him, and there he was in the rock outfit and I said, 'Chuck-a-roo! How could you possibly sit there and let them [NFL owners] put in the supplemental draft when you know it is overtly antitrust?' He said, 'You're right, you're right.' "
The courtroom rocked with laughter. At the end of his testimony, as Cosell strode out the door, he turned to a reporter and said, "What a performance!"
Cosell was the final witness to testify for the USFL. Since the trial began on May 14, the USFL had called 18 witnesses—from NFL commissioner Pete Rozelle to his archenemy, Al Davis, owner of the Los Angeles Raiders, the only NFL team not named in the suit. Davis testified last week that, among other things, the NFL tried to cripple the USFL's Oakland franchise to preserve the territory for a possible return of the Raiders or another NFL franchise. Through witness upon witness, the USFL's flamboyant chief counsel, Harvey Myerson, had attempted to show that the NFL worked to destroy the rival league. At the heart of the action is the USFL's contention that the NFL conspired to pressure the three major networks into keeping USFL games off television this year, thus pinching it off from its largest source of potential income, and to sabotage its efforts to operate franchises in large cities such as New York.
The USFL played its first three seasons—from 1983 to 1985—in the spring, and in those years had a TV contract with ABC. As the league entered the '85 season, it also had a contract with ESPN. The two contracts were worth some $35 million. This year, the eight remaining franchises are scheduled to play in the fall, but no network TV contract has been forthcoming. The NFL is in the last year of a five-year, $2.1 billion contract with the three networks that has paid each franchise some $15 million a year. For its part, the NFL argues that it conspired with no one and did nothing to harm the new league, that the USFL is really suing to force a merger and that the USFL is in financial trouble through its own doing—poor management and excessive spending. The NFL began presenting its case on Thursday and is expected to continue through most of July.
The case is potentially the most significant antitrust suit in the history of sports. Should the NFL win, the USFL probably will fold, ending what could be the last attempt of a rival league to emerge in challenge of the old league. If the USFL prevails, and wins a sizable portion of the $1.32 billion award it is seeking, the NFL will be in financial difficulty and the USFL will have a bundle of money and, presumably, a better shot at a TV contract—and survival.
When the trial began, NFL officials appeared expansive and self-assured, confident that the USFL had no case against them. No longer. During the last couple of weeks, league officials sitting in the galleries have been particularly grim-faced as Myerson hammered his points home. In fact, early last week, Modell said, "I'd say we're about a touchdown and a safety behind. Now we've got the whole second half to catch up."
What had put them behind was the case that Myerson was slowly, methodically building for the USFL, the league one NFL lawyer recently said was "being held together by chewing tobacco, baling wire and Harvey Myerson."
The contrast between Myerson and Rothman, the two men who have handled most of the examination of the witnesses, is striking. The 59-year-old Rothman, the former chairman and chief executive officer of MGM/UA Entertainment, is tall, gray-haired, avuncular and undemonstrative. He stands at the podium to question witnesses and rarely wanders from it. The 48-year-old Myerson is short, chunky, dark-haired and menacingly combative, given to shouting angrily at witnesses, moving around as he talks and playing to the jury with shrugs, sighs and a rolling of his eyes. While Rothman has addressed the jurors, Myerson has entertained and wooed them.
Myerson's style has become an issue in the case. During Myerson's withering interrogation of Jim Spence, a former executive with ABC, Rothman said to the judge, Peter K. Leisure: "Your honor, I respectfully object to counsel yelling at the witness...." Moments later, in a conference at the bench, Rothman complained, according to the trial transcript, that Myerson was "looking at the jury, smiling at the jury, making motions toward the jury.... It is distracting, it is improper." Leisure overruled him, saying, "I'm not going to impose a restriction on the style of counsel...."
Style aside, what Myerson had done in the first half of the trial was build a viable case for the USFL, whose commissioner, Harry Usher, was quoted before the trial as saying that the league needed to win its suit to survive beyond 1986. The very crux of Myerson's case—what he termed in his opening argument a "smoking gun" designed to destroy "this little itty-bitty league"—is a remarkable document, the so-called "Harvard Study." Commissioned by the owners' NFL Management Council and put together by a Harvard Business School professor, Michael Porter, and an assistant, the study became the subject of a February 1984 slide-show seminar attended by 65 NFL executives. It was entitled "USFL Vs. NFL," and it suggested various strategies for putting the USFL out of business.
Among others, these included: 1) making efforts to force ABC, which had televised its spring football games, to discontinue its USFL contract by giving the network a weak Monday Night Football schedule, 2) attempting "to co-opt the most powerful and influential [USFL] owners with promises of NFL franchises" and 3) trying "to bankrupt the weakest teams to reduce USFL size and credibility." The study was the most damaging evidence produced by the USFL in its efforts to demonstrate intent by the NFL to kill the league. In testimony, Rozelle denied vigorously that he knew about the study before the seminar. He finally did see the study.
"When I read this presentation, I almost got physically ill," Rozelle said.
Myerson, theatrically: "To your stomach, Sir?"
Myerson: "I see. How long did it take you to recover?"
Rozelle: "About half a day."
Jack Donlan, the executive director of the NFL Management Council, attempted to play down the importance of the seminar by testifying that it was attended mostly by "middle management" executives, but the USFL produced evidence that a number of the NFL's most influential and powerful owners and general managers were there. NFL officials have testified that none of the strategies called for was ever implemented.
If the Harvard Study was the biggest of Myerson's "smoking guns," he also had what he said was a second bit of proof of antitrust activity in the so-called "Donlan Memorandum." Entitled "Spending the USFL dollar," it was written on Aug. 4, 1983, and suggested a strategy for driving up the salaries of low-paid USFL players with the intent of putting financial pressure on the USFL in signing new players.
The memo said: "With 'low-salaried' players making up the vast majority of USFL rosters it seems to me we can force the USFL to increase salaries of existing players or run the risk of losing them. Each dollar spent on current players is one they cannot spend on a draft choice." Rozelle denied any knowledge of the memo until the USFL filed suit, and said he "totally" disagreed with its recommendations.
Myerson has tried to show a connection between the study and a series of events that followed it, including an alleged attempt by Rozelle to co-opt New York real estate developer Donald Trump of the New Jersey Generals. Trump testified that he met Rozelle alone in March 1984 and that the commissioner promised him an NFL franchise.
"[Rozelle] stated that the NFL was going to be around for a long time, that 'You will have a very good chance [for] an NFL franchise, whether it be the Generals or some other NFL team,' and that what he wanted in return was...staying in the spring for the United States Football League and not bringing a lawsuit.... The thing that Mr. Rozelle specifically did not want was a lawsuit on antitrust grounds."
In earlier testimony, asked if he had offered Trump an NFL franchise, Rozelle said, "Never. Never."
Nor did Rozelle offer anything but denials that there was a "New York City conspiracy" among NFL owners to keep Trump's Generals out of the city. According to the conspiracy theory, NFL owners misled city and state officials into hoping the Jets might return to Shea Stadium or move into a proposed new facility—when, in fact, the Jets had no intention of coming back—and thereby kept the Generals from moving across the Hudson to New York.
While the Harvard Study and the Donlan Memo spoke most powerfully for his cause, Myerson made decidedly less headway in eliciting testimony from network executives that they felt any pressure from the NFL to keep the USFL off television. Myerson repeatedly tried to show that the NFL, using TV rights to the Super Bowl as a lever, was able to pressure and thereby control the networks. Cosell testified that Roone Arledge, the former president of ABC Sports, had once told him that he was feeling heat from the NFL because the network was televising the USFL's spring games.
Cosell: "Roone said to me, 'You know, you've got to understand, Pete'—meaning Pete Rozelle—'is all over me on the grounds that I'm sustaining the United States Football League with the spring contract.' " In earlier testimony Arledge had denied saying that. The most ABC's Spence would admit to was that the NFL was "less than enamored" with ABC's contract with the USFL.
There was no doubt, as the NFL launched its presentation last week, about what direction it would be taking. The league produced a Nov. 9, 1983, letter from Tad Taube, owner of the defunct Oakland Invaders, to fellow USFL owners in which he expressed alarm at the rising costs of the salary war with the NFL and urged salary caps. In a postscript, Taube wrote, "We have sighted the enemy and they are us!" In a 1984 letter to Taube, Myles Tannenbaum, managing general partner of the USFL Philadelphia Stars, wrote of Trump, "Donald wants to move the league into the fall so that a merger with the NFL could be forced—he told me that in so many words on two occasions."
So came the first salvos from the NFL. All of this was taking place in an old, high-ceilinged courthouse on Foley Square where other historic trials have been held. It is the building in which Julius and Ethel Rosenberg were tried for espionage, where a judge declared the novel Ulysses not obscene and able to be admitted into the United States. Today it is where the NFL and USFL are struggling, ultimately, for control of professional football in America.