On Sunday, January 10, NBC made it official that it will cancel the 10 p.m. “Jay Leno Show” effective February 12, and move Leno over to an 11:35 p.m. time slot. For Conan O’Brien, NBC said it would offer the funnyman from Harvard the chance to move his “Tonight Show” back just a half hour from 11:35 p.m. to 12:05 a.m. to be followed by Jimmy Fallon’s “Late Show.” Before June 2009, Leno hosted the “Tonight Show” at 11:35 p.m.
Looking back now, the Leno-O’Brien shuffle by NBC Universal’s boss Jeff Zucker easily looks “boneheaded” because, with Leno gone, Letterman now rules the ratings at 11:35 p.m. in spite O’Brien’s best efforts. Plus, Leno himself is doing rather poorly at 10.p.m. and NBC languishes in fourth place among the major networks. This is now being called Late Night Crisis 2010. Disaster all around!
Yet, NBC will not get its wish: O’Brien is leaving in a foul mood with an unfriendly dig at NBC which he accuses of making him a scapegoat for its “terrible” prime time ratings. He also claims that starting the “Tonight Show” at 12:05 a.m. the next day amounts to a “destruction” of the show. O’Brien’s bold reaction somehow recalls an earlier bigger drama on the “Tonight Show” when Jack Paar stormed off the show in 1960 to protest alleged censorship from NBC folks.
When the dust settles, O’Brien will leave NBC with millions of dollars in his pocket. But some people have wondered what the situation would be if the funnyman had chosen to stay and fight instead. No easy answers here but there are options all around the table. Speaking of O’Brien’s options, a small oversight by his lawyers may have made all the difference, something that NBC has to be thankful for. And here it is: the language of the agreement did not include that O’Brien’s “Tonight Show” must be held at 11:35 p.m. And NBC has ended up using this oversight as an escape route. Recall that NBC told O’Brien he could carry his show intact over to 12:05 a.m.
But if that loophole didn’t exist, O’Brien’s legs would be stronger in a fight against NBC if he had chosen to stick around and mix it up with them. He could easily seek an injunction from a court to prevent NBC from moving Leno to 11:35 p.m. Plus, he could also request an order of specific performance to make NBC keep its word to leave him on at 11:35 p.m. Not having these options made O’Brien something of a sitting duck as NBC selfishly maneuvered to fix Zucker’s earlier big blunder in moving Leno into the 10 p.m. slot. Some have called this tactic Machiavellian.
To be sure, O’Brien isn’t the only one with options here. His contract with NBC reportedly contains what’s called a negative covenant which could allow NBC to keep him off any rival television networks during the time he was supposed to be working for NBC. Already, Zucker is said to be “threatening to ice him” if he walks away from NBC. All this is important because FOX is reportedly interested in hiring O’Brien to launch Fox’s own rival late night show.
But, aside from Fox’s interest in O’Brien, can NBC really enforce any agreement to keep O’Brien off late night television for even one day? Not likely, under the circumstances.
For starters, NBC has not dealt fairly and in good faith with O’Brien and the law requires a party complaining to come with “clean hands.” Plus, the courts would probably find such an action unreasonable since the law aims to protect both competition in the marketplace and a person’s right to earn a living. So, one can safely predict that if push comes to shove here, NBC will likely suffer the same fate that ABC endured in 1980 when ABC failed in its suit against CBS in trying to stop sportscaster Warner Wolf from jumping ship to CBS.
True, O’Brien has asked us not to “feel sorry” for him and considering all the big money he’s leaving with (about $45 million by some estimates), perhaps we shouldn’t. Yet we cannot help but wonder what could have been had the funnyman been in a good position to really take the fight to NBC.