Escape clause

Here’s a stunning item I missed a few days ago: Bill O’Reilly’s contract with Fox

contained a helpful provision stating that he “could not be dismissed on the basis of an allegation unless that allegation was proved in court.” The revelation stems from a proceeding of Britain’s Competition & Markets Authority (CMA), which is reviewing a bid by Rupert Murdoch’s 21st Century Fox to assert control of the portion of satellite TV outlet Sky that it doesn’t already own. As part of the review, Jacques Nasser, a director of 21st Century Fox, gave testimony on the company’s inner workings.

And what astonishing workings: As Nasser told the story, there was a quick reaction to the accusations against former Fox News chief Roger Ailes, who was sued by former Fox News host Gretchen Carlson in July 2016. After a review of Ailes’s conduct, he was quickly ousted.

But BillO? Not so much.

Such a lightning response, however, wasn’t possible in the case of O’Reilly, Nasser told CMA, because of O’Reilly’s contract. Requiring sexual-harassment allegations to be proved in a court of law before dismissing the accused party — that’s a steep requirement. Analyses have shown that well above 90 percent of all civil cases are settled or dismissed before they reach a trial. Not only that, but a wealthy man like O’Reilly can use his assets to ensure that he’d never face a proven claim of sexual harassment.

It seems it was only because there were so many, and because word got out, and because 21st Century Fox got involved, and because there was a new contract, that Fox News was finally able to fire him.

As the New York Times reported in April, there were at least five settlements involving O’Reilly’s treatment of women, and several of them were negotiated directly between O’Reilly and the accuser. Those revelations triggered calls for action against O’Reilly advertisers, and the pressure forced Fox News to fire O’Reilly. The story stood right there for months, until the New York Times revealed last month that O’Reilly had in January agreed to another, astounding settlement with legal analyst Lis Wiehl for the sum of $32 million. Though O’Reilly’s bosses were aware of the Wiehl accusation, they were kept in the dark about the settlement amount. They re-upped with the newsman anyhow, in a four-year deal that paid him $25 million per year.

In response to that story, 21st Century Fox issued a statement saying, in part, “His new contract, which was made at a time typical for renewals of multi-year talent contracts, added protections for the company specifically aimed at harassment, including that Mr. O’Reilly could be dismissed if the company was made aware of other allegations or if additional relevant information was obtained in a company investigation.” In his remarks to the CMA, Nasser confirmed that “a clause was inserted to state that he could be dismissed on the grounds of an allegation against him without it having to be proved in court,” according to the summary provided by the CMA. From the looks of things, the contract that contained the court-proof provision was negotiated between Team O’Reilly and Fox News; the 2017 version was negotiated with greater input from 21st Century Fox.

It’s interesting to try to imagine how that discussion went.

That O’Reilly ever had a prove-it-in-court provision says a great deal about: 1) His lawyers, who knew how to protect him; 2) Fox News, which should have seen the provision as fair warning and a potential legal liability: “Fox lawyers and executives knew that this was a big issue if they were signing a contract with him with this type of provision,” says Banks; 3) The ways in which the legal system accommodates rich people; as premier thinker Tom Scocca wrote, settlements are a “Get Out of Jail Free” card for accused sexual harassers such as O’Reilly. And to think: O’Reilly has bashed this very system for unduly empowering complainants to bring frivolous complaints against celebrities.

And 4) the malignant Fox News culture of ratings. With very few scoops and little in the way of journalistic integrity, Fox News has always fended off the attacks of critics by pointing to its preeminence in the ratings. As the Fox News sexual-harassment saga drags on, we learn more and more about how low its executives will stoop in order to preserve this distinction.

Item 2 is a killer. They knew. They accepted that clause, so they knew. “Ok, you’re a ratings magnet, so sure, we’ll let you creep on women and get away with it. Love ya, mean it.”

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