NBC Did Breach Conan’s Contract – Here’s Why

Rachel SklarJan 17th, 2010, 11:04 am

2. Jay Leno

To be honest, this is a ridiculous exercise. Really? I’m going around finding proof that Conan O’Brien thought the Tonight Show started at 11:35, and that NBC knew that? Come on. That’s ridiculous. Well, fine — proof found, in the form of explicit statements by Conan, his manager, and Carter, aka the definitive expert on late-night TV. But even without that, it could not be clearer that NBC is in violation of that contract. Why? Because NBC did exactly what the contract was set up to block.

Why did Conan need guarantees in his contract? Because he was worried that NBC would change its mind. Because he was worried that Jay Leno would change his mind.

In their fondest dreams, Mr. O’Brien and his team, which also includes his executive producer, Jeff Ross, and his agents from the Endeavor talent agency, would have liked NBC to draw up a formal plan of succession: say, three or four more years and then Conan gets the ”Tonight” job….Given his reputation for a work ethic to shame a boatload of galley slaves, it is not surprising that NBC doesn’t seem to be contemplating Mr. Leno’s retirement — ever. As Mr. O’Brien jokes: ”Jay may decide he wants to do the show until 2025. Jay could say: my brain will be in a jar and we’ll wheel it out and I’ll do the monologue.”

Those guarantees were meant to prevent NBC from having second thoughts and staying with Leno. Flat-out. Especially since the concern was that Leno wouldn’t want to step aside. See here, from Carter’s Sept. 27, 2004 piece announcing the deal:

Some of the people who were involved in how that scenario played out wondered today about whether NBC might be employing a similar tactic, offering Mr. O’Brien what he most wanted, the “Tonight” show, in order to secure his services and keep him away from another network, while essentially postponing a real decision on Mr. Leno’s future for five years.

But the people involved in the negotiations said that Mr. O’Brien’s representatives had been completely satisfied that NBC’s commitment was real. They said that the contract Mr. O’Brien signed today included a multimillion dollar financial penalty if he did not get the “Tonight” show, a penalty payment so substantial that the network surely had no intention of ever having to pay it.

NBC didn’t just try to push Conan to 12:05 a.m., they tried to push Conan to 12:05 a.m. so that Jay Leno could take the 11:35 p.m. slot before him. So that Jay Leno could take the slot starting at the same start time he’d had as Tonight Show host for 17 years. Who are the idiot morons who are supposed to believe that Leno would be getting anything other than…The Tonight Show? Or that Conan’s so-called “Tonight Show” would not mean something completely different? No one’s that big an idiot moron, and NBC knows it.

But let’s flip it for a second, and lob it to Jay. Bill Carter’s 04/04 piece paraphrased Leno saying “there shouldn’t be much distinction between 11:35 and 12:35 now that viewers can easily record shows and play them when they like.” Well, this was proved vastly, vastly wrong in Leno’s case — the former King of Late Night was what even Jeff Zucker now acknowledges was a total failure at 10 p.m. And when they offered Leno a half-hour elsewhere, did they offer that half hour at 12:35 to bump Jimmy Fallon’s show up? No, sir. 11:35 p.m. was clearly for the poobah. NBC clearly considered Leno the poobah. But for Conan O’Brien, that poobah was supposed to be out of the picture. It was why he signed that contract.

One more time: Who said that the start time didn’t matter?

Jay Leno is not privy to the 2004 contract between Conan and NBC; he can do what he wants. But when trying to interpret the intent of the parties to a contract at the time of signing, it’s instructive to consider the information they all had. In 2004, according to NBC and Leno himself, Jay Leno was stepping down. But he wasn’t just stepping down, he was stepping down specifically to make room for Conan. Why? Because Conan needed that guarantee. Without it, he couldn’t trust that NBC and Leno wouldn’t change their minds. With it — and the rest of the contract — he was protected. There is no court that would not consider that an inducement to sign. It’s why NBC asked Leno to step down in the first place.

3. NBC and the Spirit of the Agreement

There’s the letter of an agreement, and then there’s the spirit of it. At its core, a contract is supposed to provide for the obligations of both parties, and what each party will receive in return. Implicit in that exchange is what each party must give up — in this case, NBC had to give up Leno, and Conan had to give up opportunities elsewhere, in order for both of them to commit to a shared future five years later. There’s no way Conan would have agreed to the current terms in 2004 — hell, I bet he would have walked as soon as NBC mentioned Leno at 10 p.m. — just as there’s no way NBC would have signed on Conan if he explained that his version of “The Tonight Show” would be performed by puppets speaking iambic pentameter. No. That’s not what the Tonight Show is, even if you happen to call it that. Well, the same can be said for what NBC tried to pass off on Conan: The Tonight Show is not a show that starts half an hour later so it can follow another Tonight Show hosted by the last host of the Tonight Show.

Look — this is business, and business sometimes goes wrong. Relationships that were good go sour. Plans go awry. That’s why contracts exist: so that there’s something to rely on, and if you get screwed, that you have some remedy. If NBC regrets its decision in 2004 and wants to bring Leno back, fine. Make that call. But it’s a call that is being made in direct, explicit violation of that contract with Conan O’Brien, and it does exactly what that contract was specifically in place to avoid. So whatever poison-pill penalty would have been triggered by NBC’s breach is owed to Conan now.

NBC can bluster all they want about what is and isn’t in the contract, and their right to run the Tonight Show as the fifth hour of Today. It doesn’t change what the fact of the situation: Conan O’Brien bargained with NBC for a show that specifically, explicitly started at 11:35 p.m., and where he followed Jay Leno only as the fifth-ever Tonight Show host. NBC breached that contract big time.

And if you need to go back to 2004 to be sure of it, be my guest. Back then, even Jay Leno would have agreed. Yes, a lot can change in five years. Good thing we have contracts to protect us.

Related:
Conan’s Late Start [NYT, 2004]
Conan O’Brien to Succeed Jay Leno in 2009, NBC Announces [NYT, 2004]
Sigourney Weaver’s SNL Monologue May Hold Key To Conan’s Case Against NBC [Mediaite]
The Way We Were: Revisiting The Conan-Leno Swap In 2004 [Mediaite]
The Way We Were, Part II: Jay Leno Announces Handover to Conan in 2004 [Mediaite]