Decision expected today in ’RKO play to keep Carr

WRKO radio host Howie Carr’s future on the airwaves will be determined today by a Suffolk Superior Court judge who will decide whether the popular talk host can jump to rival WTKK without any future legal woes.

At the center of the legal battle are the “right-to-match” and non-compete provisions in Carr’s contract with WRKO (680 AM), which Carr’s lawyer says are illegal and unenforceable under Massachusetts law.

At a court hearing yesterday, Carr’s attorney, Bret Cohen, argued that a state statute prohibits the enforceability of noncompete agreements and other post-employment restrictions against people in the broadcast industry.

But Shepard Davidson, an attorney for WRKO, said the statute doesn’t apply to this case and the “right-to-match” provision in Carr’s contract is enforceable. The provision purports to give WRKO the right to meeting a competing salary offer within 180 days from any radio or TV station within WRKO’s coverage area.

In July, the Greater Media-owned WTKK (96.9 FM) offered Carr a five-year deal worth $7 million to host the morning drive slot left open by Don Imus. WRKO, owned by Entercom Communications, matched the offer the next day.

Carr’s contract with WRKO expires today. Barring a court order, he plans to debut at 5:30 a.m. tomorrow on WTKK. Judge Allan van Gestel, who presides over the court’s Business Litigation Session, will issue the written decision. Carr declined comment.

The following is by Brian Maloney from SaveWRKO.com:

In the legal showdown between Howie Carr and Entercom, today’s the big day.

Will a Suffolk County judge grant his employer’s request for at least a temporary court order barring him from switching to the competition tomorrow morning?

The Boston Herald has the details here (see above)

While I would never claim to be a legal expert, common sense does come into play here. From the judge’s standpoint, he might ask why Carr is in such a big hurry to jump ship before these issues can be resolved.

Once Carr actually does a show from his new digs on Morrissey Boulevard, it’s going to be difficult for Entercom to remove him. That’s why winning this round is crucial.

Though Entercom might ultimately lose this case, I think Howie greatly underestimated the company’s resolve. That would have required researching the company’s history in similar matters beyond Boston.

Guess what: they play hardball.

In fact, even if Entercom believes it will lose, David Field & Friends will keep it going just to wipe out Howie’s bank account. My guess is that Greater Media is not footing Carr’s legal bills, contrary to popular perception.

Feel free to taser me if I’m wrong, but I see Howie taking an unplanned holiday from the airwaves.

Judge Allan van Gestel, who presides over the court’s Business Litigation Session

VanGestel was with Goodwin, Procter in Boston before he became a state judge about 10 years ago. I think his preferred specialization was anti-trust, but I don't know where he stood. He is definitely anti-death penalty and was writing a book putting forth his views (but I don't know if he finished or got it published).

He was also the judge who issued that gag order in the sex education case a few years back. I don't recall the details, but a guy who is active against the rabid sex education current in the schools attended a parents' meeting and taped it. VanGestel put a gag order on him not to disseminate the tape. Maybe someone remembers more.

I don't recall if Howie wrote a column on this, but if he did, he probably skewered the judge but good. Not that that would influence the judge in any way, of course! ;-)

I can't remember Howie writing about him but thanks for the info.
A couple exchanges about this on radio-info.com:

I (raccoonradio) wrote:
Too bad Howie didn't get Judge E. George Daher (the man who dubbed Billy Bulger "a corrupt midget"). Might be a bit sympathetic.

>>Funny, that the 'quote Liberal' judges that carr rants against may actually rule to fatten his pockets.

Please, let it be so, or let what happened to Imus happen to Howie: A $20 million settlement :)

It will be interesting to see if Howie is indeed on--first of all, might he be stuck at the courthouse (unless proceedings end before 3) or would WRKO indeed bench him? If Howie does make the jump what happens to the ads he's voiced for the station?

Can Howie get the howiecarr.com domain name back? he may have to get his own variation like howiecarrshow or friedclamman.com

This from Casablanca, a former WRKO producer who is not fond of Howie:
Unless we want to go back to indentured servitude I think the courts must rule in Howie Carr's favor. Like him or not, Carr has a right to work and make a living wherever he wants. His contract with Entercom ended; if there was an option, as reported, they did not pick it up. Howie should go to WTKK if that is where he wants to be.

It would set a terrible precedent if Entercom were to win and to be able to restrict talent [ although I use the word "talent" with caution]. If the courts support Entercom today the "talent" you like tomorrow may suffer.

Entercom seems to have made all the mistakes...that is a real surprise. Now, they should live with their actions or inactions. This time Howie Carr is in the right and the courts must support him

and I responded:
A caller noted yesterday that Howie should say something outrageous so he can eventually get a huge settlement like Imus did!
Even if Howie's off air for awhile he can still stay afloat via Herald and "book money"

>>Like him or not, Carr has a right to work and make a living wherever he wants.

That's very true--he would be forced to work where he doesn't want though I think that has happened in the past to baseball players (traded, or see the Curt Flood case)

btw I haven't read Globe article yet but Gary at boston-radio-interest reported that the station that wants to keep him is "WRKO-FM". ARKO-matic Howie! Be sure to tune in to 96.9 AM (LOL) tomorrow in case Howie wins his case! Not surprising, as this is the paper which used to tell people the Red Sox game would be on "WEEI-FM 850" (sic)

The complaint Howie's lawyers had filed, btw, can be seen here

contract due to expire today
Howie signed a couple extensions to the "six month date" back in March but then they failed to renew and once they heard of the WTKK offer they said they matched it and had the right to do so. Howie's lawyers say provisions are unenforceable.

Ruling leaves Howie Carr in limbo
Jessica Heslam By Jessica Heslam
Wednesday, September 19, 2007

A Suffolk Superior Court judge ruled today that WRKO radio was entitled to exercise the “right to match” provision in Howie Carr’s contract, which allows the station to meet a competitor’s offer and leaves the popular talk show host in limbo.

It’s unclear whether Carr will take over the morning drive show on Greater Media’s WTKK (96.9 FM) tomorrow.

Said WRKO (680 AM) spokesman George Regan: “We hope Howie will continue his show on WRKO radio.”

The “right to match” clause in Carr’s contract with WRKO, which is owned by Entercom Communications, gives the station the right to meet a competing salary offer within 180 days from any radio or TV station within WRKO’s coverage area.

The judge said Carr could have quietly met with Greater Media to discuss or negotiate his future while his WRKO agreement “was still operative.”

“What Carr could not do is what he did here: receive and accept an offer from Greater Boston Radio Inc. before his Artist’s Agreement had terminated,” the judge wrote.

Shepard Davidson, an attorney for WRKO, declined comment today. Carr attorney Bret Cohen could not be reached.

Carr’s attorneys argued that the right to match and non-compete provisions were illegal and unenforceable under state law and pointed to a statute that prohibits the enforceability of post-employment restrictions against people who work in the broadcast industry.

But the statute says a broadcast employee can go to work for a competitor after they have been terminated by their employer, terminated by mutual agreement or their contract expired. Carr’s contract with WRKO expired today and he made a deal to jump to WTKK in July.

“The Artist’s Agreement still has not been terminated by Entercom, or by mutual agreement of Entercom and Carr, or by the expiration of the Agreement itself,” Judge Allan van Gestel wrote in today’s 18-page ruling.

The judge wrote that Entercom Communications was allowed to exercise its right to match WTKK’s offer while Carr’s agreement with WRKO was still “fully operative” for two more months.

“That exercise continued the Artist’s Agreement in effect well beyond September 19,” the judge wrote. “And it is not a ‘post-employment’ restriction.”

“For Carr to receive protection,” under the state statute, the judge wrote, “in the circumstances presented here would require this Court to ignore the fact that his Artist’s Agreement has not terminated.”

However, the judge said the non-compete clause in Carr’s agreement is unenforceable under state law after Carr’s contract with WRKO ends.

The judge said he wasn’t ruling on whether Carr is compelled to stay working at WRKO.

Carr and WRKO have been embroiled in a legal battle since July when WTKK offered him a five-year contract worth about $7 million to host the slot left vacant by fired shock jock Don Imus. WRKO matched the rival station’s offer the following day.

The two sides argued their cases yesterday before Judge van Gestel, who presides over the court’s Business Litigation Session.

Carr filed a lawsuit against WRKO in July claiming his contract with the station contained illegal provisions that prohibit him from working at competing stations. The suit also claimed the station failed to extend his contract several times.

WRKO then filed a countersuit to block him from jumping ship, claiming Carr and his agent, Cary Pahigian, conspired to break his contract by negotiating with WTKK. Carr was set to debut tomorrow morning on WTKK.

Turn to The Messenger blog (in the Herald) for updates.

A Suffolk Superior Court ruling today leaves Herald columnist and radio personality Howie Carr’s future on the airwaves in Boston in limbo

from SaveWRKO.com:

BY BRIAN MALONEY
As I had expected, Howie’s legal case didn’t go quite as well as his entourage hoped. That means I won’t have to be tasered after all, thank goodness.

Here’s Jessica Heslam’s courtroom coverage (see above)

In the story, Heslam says the ruling leaves Howie’s show in limbo, but I think it’s reasonably clear we won’t be hearing him debut on WTKK tomorrow.

Keep this in mind: while Entercom may not be terribly bright when it comes to programming radio stations, the firm’s legal department is another story. They will present a stronger defense than most observers anticipated and have already begun to do so.

UPDATE- the Globies reach pretty much the same conclusion as the Herald:

“The judge wrote today that in the final judgment, which is yet to come, the part of the contract which included a non-compete clause is not enforceable under state law, but another clause that gave WRKO the right to match any new offer was enforceable.

“Carr’s contract would have expired today, but Entercom Communications Corp. of Pennsylvania, which owns WRKO, alleges that it matched the offer from a rival station and therefore Carr is bound to his contract until Sept. 30, 2012.

“’The court is aware that Carr claims that he cannot be forced to work for WRKO,’ Superior Court Judge Allan van Gestel wrote in his decision. ‘While Carr’s position may have merit, it is not presently before this Court on the three motions in play. In short, it remains for another day, on another record.’

“Carr’s spokeswoman and attorney did not immediately comment. George Regan, a spokesman for Entercom and WRKO, said today, ‘We hope Howie comes back to work soon.’”

Posted by Brian Maloney at 02:02 PM |

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