Conan/Leno madness: the legal case for NBC

By Matthew Belloni

RELATED: The case for Conan

Earlier we laid out the legal argument for Conan O'Brien keeping "The Tonight Show" at 11:35. Now let's move on to NBC's case for moving him to 12:05, which, we noted, could be just as strong as Conan's.

After talking to people on the NBC side, it's pretty clear why they believe NBC's plan would not put it in breach of Conan's deal. Forget what Conan's expectation was. It's just not relevant if it's not in the contract when "Tonight" would air. NBC gets to decide when its shows air. Simple as that. 

That position might not win NBC fans but it's a compelling legal argument. When Ken Ziffren's firm drafted Leno's deal for "Tonight" and CAA and Jim Jackoway's firm did Letterman's deal for "Late Show," they included specific timeslot language. Conan's reps, which include A-list agents, managers and lawyers, had every opportunity to put specific terms in his deal guaranteeing "The Tonight Show" would air directly after the late local news. Given the volatility of late-night schedules and the fact that O'Brien was clear in his desire to host "Tonight" because it airs at 11:35, it does seem like an oversight to not include that specific language (if indeed that's true—again, we haven't seen the deal ourselves and the Conan camp says a close reading of the deal would lead any judge or jury to join Team CoCo).

But as everyone in the TV business knows, talent typically has little to no control over what time their shows air on any network. A few years ago, the A-list TV writer Aaron Sorkin, who had negotiated a sweet deal that all but guaranteed NBC would air the entire first season of his "Studio 60 on the Sunset Strip," watched as the network burned off the final episodes at odd, little-watched hours because the show wasn't delivering ratings. Sorkin was guaranteed the show would air but he didn't control when.

There are other examples. It's not exactly analogous but just this week a top appeals court in New York confirmed that CBS had no obligation to use the services of Dan Rather, one of its top anchors, even though Rather felt his contract/negotiations required CBS to let him work in the same way he had always worked. Rather was an A-list talent, but in the end CBS had the power not to use him as he preferred to be used.    

NBC and Leno are getting crucified here but, at least legally speaking, the network probably gets to decide when its shows air. That's a tough pill for Conan to swallow. But all's fair in love, war, and late-night TV.

Fore more on Leno/O'Brien: 

Do Conan and Google have the same agent?
THR, Esq.: Parsing the legal ramifications
Conan O'Brien monologue mocks NBC
What's wrong with Conan O'Brien's statement
Conan pushes back: Now what?
NBC confirms Jay Leno out of primetime
Jay Leno talk turns to Conan O'Brien

Comments

[TMan72]

I remember reading that Conan's deal didn't state that the show would air at 11:35 but changes on timeslot would have to be mutually agreed.

I guess in this kind of case one shouldn't trust what NBC says either.

[P. Lee]

It maybe a compelling legal argument for NBC. But, in regards to public relations, it is a 9-alarm disaster. One for the textbooks.

[Terrence]

Contract or no contract -- NBC is WRONG for what they are doing/have done to Conan.

On the other hand, Conan signed a bad deal six years ago.

On the other other hand, Jay allowed himself to be pushed aside in that same deal with no clear understanding as to what the network had planned to do with him.

On the other other other hand, NBC should have simply made a clear-cut choice between Jay and Conan instead of having their cake and eat it too.

[TV Fan]

You don't succeed, the network moves your time slot. It's not new, Cryin' O' Brien.

[TV Fan]

@P Lee, the textbooks have yet to be written. When Leno is winning 11:35 again in six months and Conan is following George Lopez on TBS, it will be comparable to restoring Classic Coke.

[TV Fan]

The odd, little seen hours Studio 60 was burned off: Thursdays at 10pm.