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

I haven’t practiced law for about six years. I left the profession because I hated working in a big law firm and anyway, I wanted to write. But I loved law school, and one of my favorite subjects was Contracts, with the inestimable Professor Trebilcock. (Yes, we did make jokes. But we loved him.) What I remember from class is the why of contracts — yes the law should keep people from murdering each other, but why should the law care about your business deal? Or your bait and switch? Or your Carbolic Smoke Ball? Well, society can’t function on the basis of broken promises and reneged-on deals, otherwise no one would ever do anything before they were paid, and no one else would ever pay before anyone had done anything, so nothing would get done. In order for life to move briskly along, distributors needed to know they would be paid for bringing you food and contractors needed to know they would get paid for building you buildings, etc. etc. etc. Making deals means not making other deals — making a deal over here means giving something up over there. You can’t be on NBC if you’ve accepted an offer from, say, Fox — so in order to turn down Fox, you need to be able to rely on NBC. Which brings us to Conan.

1. 11:35 p.m.

I found Bill Carter‘s Sept. 27, 2004 article about the Conan-Leno Tonight Show enormously fascinating. It perfectly encapsulated the situation as it was back then — and the media universe in which that deal was struck. Here’s one sentence that stuck out for me immediately:

Mr. O’Brien, with his own contract set to expire in January of 2006, had made it plain in interviews that his goal was to be the host of an 11:35 p.m. late-night show soon.

This is a key sentence, because it addresses NBC’s main point: That they did not breach their contract, because they offered to keep Conan O’Brien as host of the Tonight Show — whenever it aired. O’Brien’s camp has maintained that the Tonight Show is indivisible from that 11:35 p.m. start time.

Ay, there’s the rub: Because apparently Conan’s contract never specified that timeslot. (I have not seen the contract, I am going off the reports cited.) Per TMZ:

We’re told Conan’s reps never even asked for a guaranteed time period when they negotiated his contract — shocking, but true… As for Conan’s legal position, his claim is a lot more tenuous than first reported to us. We’re told Conan is arguing — given the history of “The Tonight Show” — there is an “implied” guarantee the show would begin at 11:35.

While it’s certainly always preferable to get it in writing, contracts can’t include everything. Indeed, the reason that contract law exists is in large part to interpret the unwritten elements of a contract when it runs up against unexpected circumstances. Fancy, expensive lawyers can try, but they’ll never think of everything — like, say, the implosion of the media world as we know it, and the cost-cutting decisions that would be made as a result. Not imagined in 2004. So our task is now to apply 2004 intentions to this crazy new world in 2010.

I disagree with TMZ — I don’t think Conan’s claim is tenuous. At all. On the contrary, not only is there a sound argument for 11:35 being indivisible from the historic Tonight Show brand, there is explicit evidence that makes it clear that the 11:35 p.m. start time was explicitly demanded by O’Brien’s camp — and that NBC explicitly knew that. Carter’s 2004 comment about O’Brien making it plain in interviews that he wanted that 11:35 timeslot is a good start — but better is to actually have a quote. So, here’s an earlier piece by Bill Carter, from April 4, 2004:

Gavin Polone, Mr. O’Brien’s manager and long-time friend, puts it in the plainest terms. ”There’s just no question that he’s going to be on earlier than 12:30,” he says. ”He’s going to 11:30. It’s going to happen.”

There it is: the late-night star at 12:30 is pondering a move to 11:30 (it’s really 12:35 and 11:35, rounded off for convenience).

Carter’s piece is called “Conan’s Late Start.” “11:30” is mentioned 3 times before that clarification, followed by 7 mentions of “11:35.” Oh, there’s more: Carter refers to it as “the coveted 11:30 period, made famous by Jack Paar and Johnny Carson”; lest we miss the point of just how important that 11:35 slot is, Carter also calls it “the prize” and “that hour-earlier dream.”

Ahem. Who said that the start time didn’t matter?

It matters — and it mattered, too, in drawing a distinction between Conan and David Letterman, whose exit from NBC and that 12:35 a.m. timeslot had been so bitter. Said Conan to Carter, then:

Mr. O’Brien takes pains to point out the distinctions. ”The difference with Dave, which even NBC will admit, is that there was no way Dave could continue to do the job at 12:30 with Jay as the ‘Tonight’ show host, because they were peers. I’m 15 years younger. With me at 12:30, you can still feel there’s order in the heavens somewhat.”

That may have been true in 2004, but in 2010, Conan had officially ascended. And the 11:35 timeslot was clearly part of that.

>>>NEXT: The Looming Threat of Leno

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