Why FOX can hire Conan as soon as he leaves NBC

People are still talking about the late-night wars at NBC. One interesting thing I keep hearing is that Conan O'Brien is ... well ... kinda screwed. His statement yesterday rejecting NBC's plan to move him and "The Tonight Show" was brilliant and worthy of respect. (See "How Conan O'Brien powned NBC.") But even if he makes good on his promise to leave NBC rather than move, many have speculated that he will not be able to head on over to FOX (or ABC or cable) because of his noncompete agreement.

As far as I know, no copy of Conan's employment agreement has found its way online. Presumably, when he packed up and moved to California to take over the show, he signed an agreement that spelled out his and NBC's mutual obligations. For example, some have reported that NBC promised that it wouldn't run "The Tonight Show" any later than 12:05 a.m. Eastern. (For those of you who've forgotten, "a.m." is Latin for "no longer tonight.") If this report is true, then presumably NBC is not in breach with its plan to run "The Not-Really-Tonight Show" after the reworked 11:35 version of the Leno debacle. (I don't think that's what they're calling it, but it would be refreshing.)

But commentators have suggested that Conan would be bound by a noncompete that would prevent him from competing with NBC for a year or two. See reports here (ironically from CBS, who must be LTAO) and here. The blog "Concurring Opinions" also has a nice write-up of possible contractual issues in the Conan matter here.

But Conan isn't bound by a noncompete.

Let me point out for a moment that I write this without having seen his NBC agreement, and without any actual knowledge of his negotiations. So how do I know that he's not bound? Well, noncompetes are a specialty of Shepherd, our employment-law firm.

I put a hint in the second paragraph above. Go back and reread it. I'll wait. [... tick ... tick ...] Got it? That's right: "moved to California." Conan shoots "The Tonight Show" in Universal City, California. (I need to get a city named after my company.) And California, as many of you know, prohibits noncompetes. Section 16600 of the California Business and Professions Code makes employment-related noncompetes — like the one Conan reportedly has — void.

Now if NBC was smart — and given how they've handled all of this, there's not much chance of that being the case — they may have tried to do an end run around 16600 by placing a choice-of-law provision in the contract. NBC is headquartered at 30 Rock in Manhattan, so they could have insisted in the agreement that New York law govern it. And if NBC got him to sign it back in 2004 when they promised the show to him, that might have made some sense. But not now.

Because in August 2008, New York decided to protect oppressed millionaire TV broadcasters by enacting the Broadcast Employees Freedom To Work Act, which banned postemployment noncompetes for broadcast-industry employees. Oh ... so sad.

Actually, don't feel bad, NBC. Even if New York hadn't gone and done that, there was no way that a California court was going to honor a choice-of-law clause to enforce a noncompete that restricts a California worker (Conan) from plying his lawful trade. Either way, no noncompete is going to stop Conan from broadcasting on FOX or ABC or Telemundo or YouTube.

To be sure, Conan's agreement might have some penalty if he walks out on NBC (assuming NBC didn't breach the contract themselves by make "The Tonight Show" into "The Not-Really-Tonight Show"). At the very least, he could well be walking away from millions of dollars by not finishing out his term.

But NBC can't stop him from working. And how sure am I about this, especially since I haven't read the contract? This is how sure: If NBC sues Conan for violating a postemployment noncompete agreement, my firm will offer to defend him. For nothing. (Not soliciting work here, of course. But if he calls, we'll do it.)

See you after "24," Conan.