The 2010 Late Shift, post-O'Brien's People of Earth missive (THRE, LAT, NYT, DH)

By Nancy Tartaglione

Does Conan O'Brien's contract give NBC the right to bump him to 12:05 to make room for Jay Leno at 11:35? The Hollywood Reporter Esquire blog takes a look at the $40 million legal question while other outlets weigh in on the most recent happenings in the 2010 Late Shift.

Despite all the hoopla, THRE says the contractual issue is a simple query. If Conan's deal has specific language about the time slot for "The Tonight Show" (ie that it would air at 11:35pm) then NBC would be in violation of his contract by attempting to bump him to another hour. If there isn't any time-slot language, Conan's refusal to take the 12:05am slot would put him in breach and presumably allow NBC to void his deal without paying him off.

According to The New York Times, NBC executives say the contract guaranteed O'Brien would be installed as host of "The Tonight Show" but contains no specific language about the time period.

David Letterman has time-slot language in his deal, so some are already blaming O'Brien's lawyers, says THRE, while adding that it's likely not that cut-and-dried a legal issue.

If the breach-of-contract claim ever got to court, O'Brien could argue that specifying a time slot was not necessary because "Tonight" has followed local news across America for 60 years.

Further, adds THRE, the name implies a show at night, not during the early morning. While NBC could counter that "Late Night" airs in the morning, a "Tonight Show" that doesn't air tonight, would be a "Next Day Show" as David Letterman pointed out in his on-air comments last night.

O'Brien also could argue that by replacing his show with something starring the former host of "The Tonight Show," NBC effectively breached his agreement because viewers would believe that Leno is hosting the "real" "Tonight Show."

Meanwhile, O'Brien's missive to The People of Earth yesterday, was not about points or strategy. The Los Angeles Times spoke to O'Brien manager Gavin Polone who said, "This came from the heart...It's him expressing his feelings; there is nothing else behind it."

In O'Brien's now infamous statement, he said he would not do a show at 12:05am. He said that he so respected the institution of "The Tonight Show" that he could not participate in what "I honestly believe is its destruction."

O'Brien did not resign or indicate he would not show up for work, but an NBC executive told The New York Times that he would leave once a financial settlement was reached.

Releasing a statement to make public his anger at the company paying him tens of millions of dollars before he even reached a settlement was quite a move. The closest episode in history may be when Jack Paar walked off the set of "The Tonight Show" in a huff over corporate censorship, the NYT notes.

An O'Brien rep told the NYT that the host had reached the point on Monday where he "sat up all night drafting the statement."

Meanwhile, NBC has quietly dismissed the notion of lining up guest hosts for "Tonight," the NYT says, lest it face another legal issue.

And, while folks have been asking if Conan would be perceived as damaged goods at another network, one longtime network programmer asked the NYT, "You have to wonder if Jay is damaged goods after all this. But if they give him 'The Tonight Show' back, maybe it ends up all right after a while. But it just seems so unfair to Conan."

(Deadline.com reported that a meeting was held yesterday at NBC Universal with, on one side of the room, NBCU's Jeff Gaspin and Marc Graboff and, on the other, Palone, WME agent and board member Rick Rosen and the newest member of Team O'Brien, litigator Patty Glaser, who was hired on Sunday. As of 8:30am NY time on Wednesday, there had been no word on what had transpired at the meeting.)