Conan O’Brien’s conundrum


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In the grand scheme of things, figuring out whether to stay in a job that pays north of $15 million a year or fighting for some sort of buyout that would also be in the millions -- if not multimillions -- is something of a luxury problem. But those are basically the options facing NBC’s Conan O’Brien, who is being told ‘The Tonight Show’ is going to move from 11:35 p.m. to 12:05 a.m. to make room for Jay Leno’s return to late night.

For all the talk out of Fox that it loves O’Brien and would be willing to chat with him, the odds of something really happening seem long. Even if Fox has some sort of tacit agreement to explore getting back into late night, actually getting the time slots from its stations will be no small task. Fox’s affiliates show reruns in the 11 p.m. time slot, which is ideally where Fox would want to put O’Brien. Those reruns make a lot of money for the stations, who have seen their bottom lines hit by a weak economy and audience fragmentation.


While Fox could put Conan at 11:30 p.m., which might be a little more acceptable to the affiliates, that would mean there would be three late-night shows going head to head. That’s a recipe for disaster. On top of all this, assuming Fox sells its affiliates on the idea, it’s not like he’d go on the air in two weeks. Assuming he could wrestle out of his NBC deal, the earliest he could hit Fox is in the fall, and that is probably incredibly wishful thinking. O’Brien could easily end up sitting on the sidelines for at least a year, which is an eternity in TV time.

Talks between O’Brien and NBC are ongoing, with the two sides debating whether the network is voiding his contract by moving the show. Unfortunately for O’Brien, during negotiations for his original deal to host ‘The Tonight Show’ his management apparently forgot to get it in writing that the show’s time slot would always start at 11:35 p.m.

That little detail may be key in keeping NBC from having to shell out any sort of penalty or to release O’Brien from his contract. According to people familiar with O’Brien’s deal, it does not contain any clauses that would prevent NBC from moving ‘The Tonight Show’ out of 11:35 without violating his deal.

Whether not having a time-period-specific clause would stand up legally, should it come to that, may be another story. After all, ‘The Tonight Show’ has aired at the same time for some 50 years, which sure sounds like precedent, but we’re not lawyers here. If Leno’s old ‘Tonight Show’ deal also included a time-period clause is not known, some say it did, others say no. David Letterman’s deal when he went to CBS did have such a clause, said a person with knowledge of that contract. O’Brien’s lawyer Leigh Brecheen did not return calls seeking comment, and WME Entertainment, O’Brien’s agency, also declined comment.

O’Brien has a powerhouse team at WME. But in this case, short of WME boss Ari Emanuel persuading his brother -- White House chief of staff Rahm Emanuel -- to get the Justice Department to block Comcast’s takeover of NBC Universal unless O’Brien keeps his job, Conan may be out of luck.

-- Joe Flint