Legal Battle Brews Over Imus Contract With CBS

By Howard Kurtz
Washington Post Staff Writer
Friday, May 4, 2007

The uproar over Don Imus appears headed to court, as lawyers for the ousted radio host and his former network prepare for what could be an ugly battle by seizing on selected phrases in his $40 million contract.

Imus plans to sue CBS early next week for killing his radio show, invoking a contract clause that encouraged him to be controversial, his attorney, Martin Garbus, said yesterday. Garbus, a prominent First Amendment specialist, said the contract also required a written warning of unacceptable conduct -- and the granting of a second chance -- before Imus could be fired.

But sources familiar with CBS's legal strategy say that other contract language allowed for the nationally syndicated host to be dismissed without warning. If Imus goes to court, they said, CBS will file a countersuit demanding compensation for lost advertising revenue and fees from radio stations and MSNBC, which paid to carry "Imus in the Morning."

The dueling arguments made clear that the Imus imbroglio, which created a media frenzy last month after he called the Rutgers women's basketball team "nappy-headed hos," is about to erupt again. Imus repeatedly apologized for the slur -- the Rutgers team accepted the apology after a meeting -- but has made no public comment since then.

"CBS wanted him to do it," Garbus said of the locker room humor -- interspersed with interviews with politicians and journalists -- that made Imus controversial for years. "CBS wanted to encourage him and wanted him to feel totally protected." He said the company never used a five-second delay to delete questionable material from the program.

Agents and media lawyers say one clause in Imus's contract, highlighted by Garbus, is highly unusual. It says his services "are of a unique, extraordinary, irreverent, intellectual, topical, controversial and personal character" and that programs containing these elements "are desired" by CBS and "are consistent with company rules and policies."

But other contract language, obtained by The Washington Post, will be used by CBS lawyers to argue that the company had "just cause" to dump Imus. These clauses cover "any distasteful or offensive words or phrases" that CBS believes "would not be in the public interest" or could jeopardize its broadcast license, as well as language that brings the company or its advertisers "into public disrepute, contempt, scandal or ridicule, or which provokes, insults or offends the community or any group or class thereof."

A CBS spokesman declined to comment, but two people familiar with the company's strategy, who asked not to be identified discussing possible litigation, said the Rutgers comments were so outrageous as to trigger several clauses that they maintain did not require a warning to Imus.

Garbus dismissed that argument, saying: "CBS's interpretation of the contract, stringing together words from here and there, would render the clause meaningless. Contracts are not interpreted that way."

Another piece of evidence for CBS, said those familiar with its strategy, is that the network gave Imus and other on-air talent a memo last fall, titled "Words Hurt and Harm," warning against the use of racial and ethnic stereotypes.

The financial stakes are considerable. Garbus said the planned lawsuit in New York state court would seek "indirect damages" as well as payment for the remainder of Imus's $40 million five-year contract, which began in January. Such indirect damages, he said, would include reduced income for Imus's private businesses and charities, as well as his future earnings in broadcasting.

On the other hand, the sources knowledgeable about CBS's approach did not rule out the possibility that the network might sue Imus for damages -- even if its former star did not follow through with the threatened litigation. CBS radio stations that carried the Imus show have been scrambling for replacement programming.

Beyond the big-bucks battle is the question of Imus's reputation. In the debate over his past use of questionable racial and sexual humor, which generated Time and Newsweek covers and plenty of television coverage, critics turned him into a symbol of a toxic popular culture.

But CBS renewed Imus's contract last year despite the past controversies, and originally imposed only a two-week suspension before bowing to pressure from outsiders, led by the Rev. Al Sharpton, and its own employees. If Imus can collect damages from CBS on grounds that the company encouraged his sharp-edged approach, he may succeed in casting the episode in a different light.

This is the second conflict with a high-profile CBS radio personality that could end in litigation. CBS sued Howard Stern for at least $200 million for breach of contract last year, claiming he had improperly promoted his move to Sirius Satellite Radio while still on CBS stations. The suit was settled with Sirius paying CBS $2 million in exchange for tapes of Stern's shows over the previous 20 years.

© 2007 The Washington Post Company