Rather May Struggle to Prove Larger Case

Sept. 21, 2007 — -- Dan Rather's best chance of winning his $70 million lawsuit against CBS appears to be a contract violation that did not give him him enough air time, employment lawyers told ABC News.

It may be more difficult for the former anchor to prove other dramatic allegations that accuse the network of making him a scapegoat for an unsubstantiated story about President Bush's military service, they said.

Though tens of millions of dollars and big-name personalities are involved, employment lawyers say Rather's case appears to come down to a basic contract dispute. The outcome will likely depend on the wording and interpretation of the contract and lawyers warned it was too soon to say whether Rather had a winning case.

"If he gets to a jury, it seems like a very viable claim," said Merrick Rossein, who teaches employment law at the City University of New York, after reading Rather's complaint.

Rather's other allegations — accusing the network of fraud for misleading him and of using him as a scapegoat to curry favor with the Bush administration — could be more difficult to prove, especially given that Rather publicly apologized for his handling of the 2004 story on Bush's National Guard service during the Vietnam War, employment lawyers said.

"It's an uphill battle," said David Wachtel, a Washington, D.C., lawyer who handles employment disputes. "I think he has a difficult case."

CBS denied the allegations, saying in a statement, "These complaints are old news and this lawsuit is without merit."

'He's Mad'

But, beyond any money he may obtain, the lawsuit could give Rather a chance to publicly revisit his handling of the 2004 story and the circumstances of his departure from CBS. He has stood by his handling of the story.

The suit was filed against the network, its corporate parent, Viacom Inc., and three of his former bosses: Viacom Inc. chairman Sumner Redstone, CBS News CEO Leslie Moonves and Andrew Heyward, the former president of CBS News.

"It's about punishing people he's mad at and airing his story of the story because he doesn't think it's been told," said Mark Obbie, director of the Carnegie Legal Reporting Program at Syracuse University and the former editor of American Lawyer magazine.

To prove his case, lawyers said Rather would try to take sworn testimony of CBS and Viacom executives, including Moonves and Redstone, which could pressure the network to settle.

"It's surprising how many cases settle the day before the deposition of the CEO," said Wayne Outten, a New York employment law attorney.

Rather said in a statement that he would donate most of any verdict "to causes that will further journalistic independence." He told The New York Times, "I'd like to know what really happened. Let's get under oath. Let's get e-mails. Let's get who said what to whom, when and for what purpose."

That raises the possibility of an ugly, public dispute over the reasons for Rather's departure from CBS, with both sides seeking to cast each other in the worst possible light.

'Mutually Assured Destruction'

"This is going to end up hurting everybody," said Cameon Stracher, co-director of the Program in Law and Journalism at New York Law School and a former attorney for CBS. "It's almost mutually assured destruction."

Rather narrated a September 2004 news report saying Bush had disobeyed orders and avoided some of his duties during his National Guard service during the Vietnam War. After the documents on which the story was based were discredited, Rather stepped down from his 24-year post as anchorman.

A panel, appointed by CBS and headed by former Attorney General Dick Thornburgh and former Associated Press chief executive Lou Boccardi, accused the network of having "failed miserably" to authenticate the memos.

The former anchor says he didn't offer public statements to defend his reputation because CBS made several promises to him, which he says never materialized, in exchange for his silence.

Rather's lawsuit claims that CBS executives, including Moonves and Redstone, made Rather a scapegoat in order to curry favor with the Bush administration. He says the network marginalized him after the story and purposely kept him off the air.

Rather, who left CBS last year, says that the network violated his contract by giving him insufficient airtime on "60 Minutes" after he left as the anchor of "CBS World News." He also accuses the network of fraud by commissioning a biased investigation into the broadcast and by assuring him that it would support him.

No Hurricane Trip

The lawsuit could turn on the meaning of words like "regular" and "full time," lawyers said. "Although he's a very famous guy, in some respects this is just a garden variety labor dispute," said Stracher.

Rather's contract, signed in 2002, promises him a job as a "full-time correspondent" with "first billing" on "60 Minutes II" if he left his job as anchor before March 2006, according to the complaint. When that program was canceled, the contract said Rather would "perform services on a regular basis as a correspondent" for the main "60 Minutes" show.

But, according to Rather's complaint, "he was provided with very little staff support, very few of his suggested stories were approved, editing services were denied to him and the broadcast of the few stories he was permitted to do was delayed and then played on carefully selected evenings, when low viewership was anticipated."

The network further refused Rather's request to cover Hurricane Katrina in 2005, though he claims in his lawsuit to be "the most experienced reporter in the United States in covering hurricanes."