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January 29, 2023IM -
by Jennifer Garner, AFM In-House Counsel
The AFM is suing NBCUniversal on behalf of scores, or potentially hundreds, of individual musicians for NBC’s habitual breaches of more than a dozen of its obligations under the Television Videotape Agreement. NBC is holding wages and allied benefits hostage, even those that are undisputed, in retaliation for the AFM’s legal actions.
Two related lawsuits are pending. The first, filed in March 2021, seeks payment for several prerecordings aired on episodes of The Kelly Clarkson Show, incomplete tracks used in performances on the Tonight Show with Jimmy Fallon and Late Night with Seth Meyers, and a few other claims that have since been resolved.
Through the litigation discovery process, and copious reports from unpaid and underpaid musicians, the scope of NBC’s total indifference to musicians and the collective bargaining agreement has been exposed. So, AFM filed a second lawsuit last month alleging many more claims in connection with the same three shows, plus two additional ones—Today and Saturday Night Live.
The parties have only one dispute over the correct interpretation of the agreement. NBC claims that it does not owe for prerecordings fixed on a date prior to the date on which it is aired, though it initially did not dispute that payment of the minimum call for airing is owed. NBC’s theory is that it is entitled to two media products for the price of one.
In support of this extraordinary position, NBC purports to rely on the “Rehearsal Conditions” section of the agreement, pertaining to double session rehearsal dates and overtime pay, which states, “[t]his provision does not apply if either of the sessions contains no actual rehearsal or prerecording services but is entirely limited to the use of tapes or records without the orchestra being present.”
NBC inexplicably disregards the neighboring provision that expressly requires payment for a minimum of three rehearsal hours for prerecording on any day prior to the date of broadcast. As such, we believe any functionally literate panel of jurors would disagree with NBC’s position. The remaining claims arise generally from NBC’s refusal to pay a competent contractor to ensure and report the engagement of musicians in accordance with the terms of the agreement, or to direct and pay the ensemble leader to do so.
The shortcomings, if not outright abuses, by NBC’s payroll department toadies run the gamut. They include failing to accurately complete and timely file B Report Forms, failing to pay the correct minimum scale wages, failing to pay applicable overtime premiums and meal break penalties, failing to pay copyists at least the equivalent of a four-hour call at the applicable hourly rate, failing to pay for doublings, and failing to pay for incomplete or backing tracks.
NBC assumed it could throw a few (very few) bucks at what it perceives as a mere nuisance, or “misunderstanding,” and be done without having to endure a public trial. Nope, the settlement terms demanded by NBC exuded a degree of hubris and bad faith that persuaded us to walk away from the table.
First, NBC’s proposal literally did not offer payment of any dollar figures—not a single one. NBC proposed only to make some unliquidated, unspecified “pretape payments” for a small subset of the many prerecordings incorporated into broadcasts of The Kelly Clarkson Show. It did not agree to pay the affected musicians the minimum call for airing, which previously was not in dispute. In other words, NBC still insists on two for the price of one—no dice.
Second, NBC expected us to accept that, “NBCU will make payment upon and to the extent of its identification, through diligent efforts, of musicians who played on incomplete tracks,” and “NBCU will make payments within 30 days of the effective date of the final settlement agreement, except for the incomplete tracks payments, which shall be due 30 days from when NBCU receives all necessary information to process payment.” NBC has been promising to use “diligent efforts” to gather “all necessary information” to pay for incomplete track uses for two years now, and to date such efforts, if any, have yielded no information, much less payment.
NBC added insult by urging that the AFM should dismiss the entire initial lawsuit solely in exchange for the strangely vague “pretape payments,” and without any incomplete track payments. It ought to be obvious to NBC that we will not settle any claims, with or without prejudice, in exchange for empty promises and no money; but, since it isn’t, we clearly said so.
NBC also refuses to pay late payment penalties and/or interest on its delinquencies. Payment now in 2020 dollars would represent a significant loss to musicians, particularly in an inflationary economic environment. But, it seems NBC regards its chronic and yearslong delays in paying wages as a clever investment strategy. That is not acceptable.
Then, there is the enduring issue of what to do about payments owed to musicians who cannot be located because NBC failed to process necessary paperwork. NBC proposes to pay such monies into an escrow held by its counsel (which, of course, eventually would be returned to NBC). To reiterate, AFM will not allow NBC to increase its profit margin by picking musicians’ pockets.
Unfortunately, the AFM will get justice for musicians only by way of a trial. So be it. The AFM will hold NBC’s feet to the fire as often and as long as it takes.