January 15, 2010 6:33 PM

As Conan's Time Ticks Down, It's All About the Contract

Posted by Drew Combs

While Conan O’Brien jokes his way through--on air, at least--what are almost certainly his final days as host of The Tonight Show, labor and employment specialists say that whatever the ultimate endgame of this Hollywood standoff turns out to be, it all boils down to the language in his NBC pact.

“There is a category of people such as high-level executives and celebrities whose employment relationship is largely dependent on the terms and conditions of a contract,” says Jonathan Handel, an entertainment lawyer at Los Angeles-based TroyGould, “and Conan [O’Brien] certainly falls into that category.”

In other words, traditional labor and employment issues are mostly irrelevant. While O’Brien is a member of entertainment industry unions such as the Writers Guild of America and the American Federation of Television and Radio Artists, compensation and other minimum guarantees set by the unions' collective bargaining agreements are not at issue in the current dispute.

With O'Brien rebuffing NBC's proposal to reinstall former Tonight Show host Jay Leno in the slot immediately following the late local news in markets around the country, one question is dominating Hollywood back lots and Century City high-rises: Does O’Brien's contract with NBC explicitly guarantee that that time slot is his? 

Only a few people can answer that question authoritatively, but there has been wide speculation that in fact O'Brien's has no such guarantee. And that, says Michael Waterstone, a labor and employment professor at Loyola Law School, would be a problem.

“Conan [O’Brien] would be in a better position, if it was clearly expressed that the show would air during a specific time slot." Waterstone says, “If no time slot is indicated, he would have to argue that the custom has always been that the show airs at a specific time."

Sibling publication The National Law Journal reports that O’Brien has tapped litigator Patricia Glaser of Glaser Weil Fink Jacobs Howard & Shapiro, who can be expected to make that very point.

One factor complicating any "custom" argument made by Glaser and O'Brien's other lawyers: the presence of specific time-slot guarantees in other Hollywood talent contracts. Entertainment industry blogs have reported that both Leno and David Letterman have contracts with such guarantees

“It hurts Conan’s argument if other people in the industry are putting time slots into their contracts,” Waterstone says. Whether these arguments will ever make it to court, or simply remain negotiating points in settlement talks between the parties remains to be seen.

“What makes this interesting,” Waterstone says, “is that in many employment cases you are dealing with people who have not been represented or don’t have a written down contract, but in this case you have a contract negotiated by high-powered lawyers on both sides."

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