UPDATE ON HOWIE’S SITUATION
Ruling leaves Howie Carr in limbo
By Jessica Heslam/ Boston Herald
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 Carrs contract, which allows the station to meet a competitors offer and leaves the popular talk show host in limbo.
Its unclear whether Carr will take over the morning drive show on Greater Medias 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 Carrs 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 WRKOs 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 Artists Agreement had terminated, the judge wrote.
Shepard Davidson, an attorney for WRKO, declined comment today. Carr attorney Bret Cohen could not be reached.
Carrs 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. Carrs contract with WRKO expired today and he made a deal to jump to WTKK in July.
The Artists 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 todays 18-page ruling.
The judge wrote that Entercom Communications was allowed to exercise its right to match WTKKs offer while Carrs agreement with WRKO was still fully operative for two more months.
That exercise continued the Artists 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 Artists Agreement has not terminated.
However, the judge said the non-compete clause in Carrs agreement is unenforceable under state law after Carrs contract with WRKO ends.
The judge said he wasnt 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 stations offer the following day.
The two sides argued their cases yesterday before Judge van Gestel, who presides over the courts 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.
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 |
Sounds like the judge doesn’t want to make any decisions and let the two parties work it out on their own