under the bus in exchange for an NFL team in New York. And two, Rozelle would consider adding one or two teams—including one for Trump—and get back to him.
Both support the following conclusion: Either Trump wins and 11 or more USFL owners lose, or no one wins.
Of course, Trump might respond that those other USFL owners could not have financially qualified for NFL teams anyway. So, he wasn’t “selling them out,” right?
Wrong. The purpose of the meeting, which took place at Trump’s request and unbeknownst to the other USFL owners, revolved around an NFL franchise for Trump.
Had Trump cared about other USFL owners getting NFL franchises, he would have informed at least some of them of his Rozelle meeting. By keeping the meeting secret, even from his “partners,” he maintained his ability to accept an NFL franchise in the future without publicly stabbing his fellow USFL owners in the back.
But Rozelle later rejected any deal. So, it was on to litigation—another negotiation strategy that reflects Trump’s zero-sum win–lose mindset.
Trump’s Last Shot for an NFL Team—Sue!
Litigation represents the ultimate win–lose approach to satisfying parties’ interests. Why? The final judge or jury in litigation almost always has only one choice at the end of the trial: One side wins and one side loses. Any other solution to the dispute, a negotiated settlement, must be agreed upon by the parties.
Trump understands this. In fact, his love of litigation borders on the legendary. It’s public record that Trump has been a party in over 4,000 litigation matters prior to becoming President.46 He has sued over 1,900 times. Since he effectively took control of the Trump development business in his late 20s, this comes to either suing or being sued an average of over 90 times per year.
This time he and the USFL sued the NFL for antitrust violations, alleging the NFL used its monopoly power to prevent the networks from televising USFL games starting in the fall of 1986. This destroyed the USFL, they alleged.
They sought hundreds of millions of dollars in damages, hoping a favorable verdict would force a merger.
Two elements here reflected Trump’s win–lose attitude. Each furthered his goal to build his brand and generate maximum publicity for Donald Trump.
Trump Chose an Attack-Dog Win-at-All-Costs Litigator
Trump pulled a fast one on his fellow USFL owners by announcing the lawsuit at a press conference with no invited USFL representative and selecting his long-time lawyer Roy Cohn to litigate it.
Other than Trump’s father, Roy Cohn more than anyone contributed to Donald Trump’s business and personal success.
A bit of history: Roy Cohn came to fame as U.S. Sen. Joseph McCarthy’s right-hand man in the 1950s. McCarthy made headlines then by leading a public and political witch hunt to ferret out alleged Communist Party spies and subversives who had supposedly infiltrated all levels of the U.S. government and society.47
“McCarthyism” became one of our country’s most embarrassing historical episodes. Sen. McCarthy was ultimately censured by the Senate, and Cohn forced to resign as McCarthy’s Chief Counsel of the Senate’s Permanent Subcommittee on Investigations.
Cohn would later say he “had never worked for a better man or a better cause.”48
Cohn subsequently returned to practice law in New York City and became one of its most influential men, wielding enormous political influence and representing clients ranging from the Catholic archdiocese to the mob.
He was no saint either. Cohn, according to Trump Revealed, “in the two decades following the McCarthy hearings…was indicted on charges ranging from obstruction of justice to bribery to extortion, but he always seemed to get off. To fight his legal battles, [he] honed a set of hard-boiled tactics and a rhetorical style that would serve him far beyond the courtroom.”49
Trump biographer Barrett called Cohn “a walking advertisement for every form of graft, the best-known fixer in New York.”50
The point here is not to impugn Trump’s character by associating him with Cohn. Instead, it is to illustrate that Trump—who had first hired Cohn in 1973 to defend him in a U.S. Justice Department lawsuit alleging racial discrimination in Trump’s apartment buildings—hired an extremely aggressive win–lose mad-dog litigator.
Cohn’s litigation and approach to life can be summarized as “go to hell” and “when attacked, counterattack with overwhelming force.”51
“Don’t Mess with Roy Cohn,” a 1978 Esquire magazine profile of Cohn written with his cooperation stated that he fought every case as if it were a war and, “Prospective clients who want to kill their husband, torture a business partner, break the government’s legs, hire Roy Cohn….He is a legal executioner—the toughest, meanest, loyalest, vilest, and one of the most brilliant lawyers in America.”52
Trump was quoted in Esquire saying, “when people know that Roy is involved, they’d rather not get involved in the lawsuits and everything else that’s involved.” 53
Trump later hired another lawyer of the same ilk to try the NFL case when Cohn got sick, Harvey Myerson. Myerson would later spend 70 months in prison for tax evasion and other crimes in what prosecutors labeled “a one-man crime wave.”54
Significant benefits can attach to a highly aggressive adversarial litigation approach. A win–win mindset and/or result is not one of them. It’s win–lose with litigators like this.
The Jury and Appellate Court’s Decisions
Trump and the USFL won the case and that final battle. And they got a ton of publicity. But they lost the war.
What happened? The jury concluded the NFL inappropriately used its power to prevent the USFL from competing with it. But they only awarded the USFL $1.00 in damages. Here’s what happened in the six-person jury room, according to juror interviews:
– Two jurors felt the NFL had harmed the USFL and deserved hundreds of millions of dollars;
– Two jurors felt the USFL’s lawsuit was just a desperate effort to stay alive; and
– Two jurors initially were undecided, one of whom was Patricia Sibilia—who felt that the NFL acted like a monopoly and engaged in predatory action but that the USFL had overspent and was partially responsible for its own demise, violating their TV contract by moving to the fall season.
Regarding Trump, Sibilia, who brokered the ultimate compromise, “decided she didn’t like Trump, whom she’d barely heard of before the trial. ‘He was extremely arrogant and I thought that he was obviously playing the game,’ Sibilia recalled. ‘He wanted an NFL franchise….The USFL was a cheap way in.’” 55
The U.S. Second Court of Appeals upheld this verdict, noting “what the USFL seeks is essentially a judicial restructuring of major league professional football to allow it to” merge with the NFL. The decision stated, in a passage relevant to the win–lose litigation strategy pursued by Trump and the USFL:
The
