Tuesday, January 12, 2010

Then again, maybe NBC hasn't breached its contract with Conan O'Brien.

The notion that NBC's decision to bring back Jay Leno at the 11:30pm time slot and thereby to displace Conan O'Brien constitutes a breach of NBC's contract with O'Brien is widely held and underlay yesterday's post. But not so fast. According to the New York Times, the contract provided that O'Brien would host "The Tonight Show," but "contains no specific language about the time period the show would occupy, NBC executives said." Thus, "[d]espite the fact that Mr. O’Brien is being ejected from the 11:35 p.m. time period he was given in June and pushed to after midnight to make room for Jay Leno, NBC executives are expressing confidence that the network has not breached Mr. O’Brien’s contract" because they'll call his midnight show "The Tonight Show":." If they're right, "Mr. O’Brien would no longer be owed any of the $45 million that NBC had agreed to pay him as a penalty in case he never got a chance to host 'The Tonight Show.'”

It seems that Conan might have something to say to the lawyers who negotiated that contract.

Addendum: Conan O’Brien Says He Won’t Host ‘Tonight Show’ Following Leno. But when he writes in his statement, excerpted below, that "The Tonight Show at 12:05 simply isn’t the Tonight Show," is he stating a legal position that moving the show to 12:05 means that it wouldn't comply with the meaning of the term "Tonight Show" as expressed in his contract?
Last Thursday, NBC executives told me they intended to move the Tonight Show to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the Tonight Show has aired immediately following the late local news. I sincerely believe that delaying the Tonight Show into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The Tonight Show at 12:05 simply isn’t the Tonight Show. Also, if I accept this move I will be knocking the Late Night show, which I inherited from David Letterman and passed on to Jimmy Fallon, out of its long-held time slot. That would hurt the other NBC franchise that I love, and it would be unfair to Jimmy. 
So it has come to this: I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard and we are very proud of our contribution to the legacy of The Tonight Show. But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet a time slot doesn’t matter. But with the Tonight Show, I believe nothing could matter more. 
There has been speculation about my going to another network but, to set the record straight, I currently have no other offer and honestly have no idea what happens next. My hope is that NBC and I can resolve this quickly so that my staff, crew, and I can do a show we can be proud of, for a company that values our work.


  1. Anjela Freeman1/12/10, 5:06 PM

    I agree with O'Brien's statement. It's called the "Tonight Show" not the "This Morning Show." 12:05am is not 'tonight.' It could be considered really, really late or very early the next morning, but it's not, by definition, 'tonight.' Tonight clearly implies the night of the day it airs, not the early morning of the day it airs. I think O'Brien still has a case for Breach of Contract.

  2. A strong argument could be made for both sides here. "The Tonight Show" is the name of the show. Has it ever been in previous contracts as having only a direct connection with the 11:35 time slot? There are more questions that need to be asked before going all out with one side.
    Also, I wonder why NBC wasn't more careful with its wording in Conan's contract since I also read that this was an "experimental" move. Since Jay Leno held that high-ranking position for such a long time, I am surprised they did such an abrupt move without further observing the rating effect the switch would have (assuming they didn't).
    I am wondering if it was Conan's Robot Dance that scared the viewers away...

  3. Steve Fetzner1/13/10, 8:22 AM

    I think Conan has a pretty strong argument to support his case. As he said in his statement, the "Tonight Show" would not be the "Tonight Show" if it airs at 12:05 AM. The language in the name of the show itself says that the show will be on "tonight." Technically, 12:05 AM is no longer tonight, but instead tomorrow morning.

    Further, if you look at the intent of Conan and NBC when the contract was entered into, and also the history of the "Tonight Show," the evidence supports Conan's stance. The "Tonight Show" has always aired following the late local news, at 11:35 PM. As Conan said is his statement, this has been the tradition of the show for 60 years. Although arguments could be made to support NBC's position, I believe the actual language in the contract and in the name of the show itself, plus the fact that the show has always been in the 11:35 time slot, gives Conan the better argument. Being a big Conan fan, my opinion may be a little biased in favor of him, but I think he's getting the shaft, and that he has the stronger argument.

  4. What was the customary behavior of the two parties in regard to the contract provision in dispute?

    I think it is pretty clear that the Tonight Show is the NBC late-night program that immediately follows the local news telecast. It need not air at 11:30, 11:35, or 12:30, or 1:30 am. The actual time is not the material issue. The material issue is program's relative location in the programming schedule. Moving Conan to 12:05 would clearly be a diminished role.

    It would be no different than hiring someone to be the President of NBC on a 3 year contract. Then after 7 months you want to demote them to running the NBC affiliate in Los Angeles.

  5. One thing that is not in dispute: Conan has dealt with this with real class