[Author's note: While I pretty clearly have a side in the topic debated below, I'm not in a position to discuss any inside information. Instead, I'm just pointing out some of the underreported facts that have--finally--bubbled up to the surface.]
The Conan O’Brien-Jay Leno contretemps seems to have settled somewhat: Leno’s off the air until after the Olympics; Conan’s off the air until…well. at least until his non-competition agreement expires in September. So, what better time to look back at one of the many factual issues that the new media got wrong during this whole mess: namely, what if anything that Conan’s contract said about when “The Tonight Show’s” timeslot.
It was generally reported last month that NBC was able to push Conan out of TTS’s traditional 11:35 airing and past midnight because his contract didn’t specify that he was entitled to any particular timeslot. This tidbit was reported over and over again and was basically accepted as gospel truth by all media outlets. While it might initially seem peripheral, this was actually a critical inflection point for the outcome of this entire debacle: if NBC was free to move Conan’s show, then Conan would have been in breach of his contract by failing to accede to any such move. But if Conan had a contractual right to 11:35, then NBC would have been in breach if they forced one.
So, when NBC basically had to pay out the entire value of the contract and only got a meaningless seven-month noncompete in return (meaningless in that it would take more than seven months to get a new show together, so the non-compete wouldn’t actually slow anything down at all), it probably should have served as a pretty strong signal to the press that Conan indeed had a contractual right to keep his timeslot. Instead, the press all whiffed on this…
…until this article came out the other day. Written by Matthew Belloni, legal correspondent for The Hollywood Reporter, it contains the first public screening of the actual contents of Conan’s contract (at least in so far as they pertain to the timeslow issue). Here’s Matthew’s scoop:
1956-present: The Tonight Show airs immediately after the late local news.
Pre-2002: Conan’s contract as host of the 12:35 “Late Night with Conan O’Brien” defines “Late Night” as “the second show” after the late local news (The Tonight Show being the first)
2002: Conan signs an amendment to that contract, which promised that he’ll succeed Leno as host of the Tonight Show whenever Leno stepped down. The amendment expressly defines “Tonight Show” as that thing that airs on NBC at “11:35 PM.” So, Conan’s contract now contains two separate references that place TTS at 11:35.
2004: Conan signs another amendment saying that he’ll take over “The Tonight Show” in mid-2009. This amendment doesn’t mention timeslot at all, leaving the existing references intact.
2010: NBC is forced to cancel ‘The Jay Leno Show’ (where they had parked Jay after Conan took over TTS) by an impending affiliate revolt. But, Jay’s contract specifies a $150M liquidated damages payment if NBC doesn’t keep JLS on the air at least two years. So, NBC has to pay him or appease him. And for appeasement, Jay selects “I’ll go back to 11:35.” (Do not get me started on his “I had nothing to do with this decision” act). To accomodate this, NBC tells Conan that they’re moving himand TTS past midnight. Conan says that he’s less than wild about the idea. NBC responds that because the 2004 amendment didn’t mention the timeslot subject at all, they are free to place TTS wherever they want.
So, basically, NBC was arguing that that when a contractual amendment is silent on an issue, it somehow by that silence invalidates all previous definitions in that contract or any if that contracts earlier earlier amendments. Also, the silence invalidates 16 years of custom-and-usage dealings between the parties and 54 years of widely-held general cultural understanding about when the Tonight Show aired.
Legal drafting experts everywhere still haven’t stopped throwing up. Course of dealing? Gone. Ambiguity construed against the drafter? Gone? Plain meaning? You’re outta here. Consensus ad item? See ya’ later.
NBC’s logical position translates to this: the law of the land is that amendments to any base contract must restate all the defined terms within that contract and all defined terms within any earlier amendments or those defined terms will be invalid.
As it turned out, their near-total capitulation during separation negotiations shows that this position was basically a (pretty lame) bluff.
Wonder what happens next???