Is M.I.A. morally accountable to the NFL for her Super Bowl performance?By: Rose Massary and Josh Wueller

Two years ago, the NFL launched a behind-the-scenes, $1.5 million arbitration proceeding against recording artist M.I.A. for flipping the bird during the Super Bowl XLVI Halftime Show. Now, the League wants an additional $15.1 million in damages for the hand gesture.  M.I.A.’s response papers filed last week argue that the NFL’s increased price tag lacks “any basis in law, fact, or logic.”

Right now, it seems like the parties can only agree to disagree, but could a couple of well-drafted contract provisions have added clarity for both parties in the League’s latest legal battle?  

Prior to taking the stage in 2011, M.I.A. reached an agreement with the NFL.  The agreement required M.I.A to “ensure that all elements of [her] Performance . . . shall be consistent” with the “tremendous amount” of goodwill, public respect and “reputation for wholesomeness” associated with the League.

The Super Bowl Halftime Show is widely regarded as the world’s biggest stage, and the NFL’s claim seeks restitution for the unjust enrichment that M.I.A. allegedly received in publicity.  The NFL calculated their $16.6 million claim based on what advertisers would have paid for a segment roughly equivalent to M.I.A’s two-minute performance.  Howard King, the musician’s entertainment lawyer, argued that the latest arbitration action is meant to “bully and make an example of [M.I.A.] for daring to challenge [the] NFL.”  King’s response opposes the League on a variety of fronts.

King contends that while M.I.A.’s controversial actions received a good deal of public exposure, the press coverage was less detrimental than the media storm following Janet Jackson’s infamous wardrobe malfunction in 2004 and a litany of other controversial actions and events, questioning whether the NFL actually had much “goodwill” to uphold.  Given the League’s “long-entrenched, demonstrable reputation of . . . profane, bawdy, lascivious, demeaning and/or unacceptable behavior,” including the NFL’s “bounty” controversy and recent bullying scandals, its role in concealing concussion risks, and prior controversial Halftime Show performances, King argues that there is no way the NFL suffered damage to its overstated “reputation of goodwill.”

In addition, King claims that the NFL suffered no damage from the performance because the FCC never took any action against the League, which subsequently secured even greater revenues for advertisements in future Super Bowls.  King also argued that a claim for restitution is only appropriate where there is no contract, and even if it was appropriate here, he says, the NFL was in no way “altogether deprived” of M.I.A.’s performance.

The contract provision M.I.A. allegedly violated is a morals clause—a provision designed to prohibit or limit behavior that could harm the hiring party’s business.  However, this dispute might have been resolved more amicably had the NFL been more specific in the types of behaviors it proscribed or tied appropriate behavior to a more general, family-friendly standard.  Instead, it appears the contract required M.I.A’s performance to conform to the League’s reputation—which is far from untarnished—rather than an explicit moral standard.  By contrast, had M.I.A.’s attorney negotiated for an extremely narrow morals clause, forbidding only specific types of behavior (e.g., nudity), the NFL would have less ground to stand on for its current claims.

In addition, the parties may have benefitted from a liquidated damages provision—a clause that would provide for an agreed-upon, reasonable amount of damages should the contract, or one of its specific provisions, be violated.  Among other requirements, liquidated damages are available wherever the injury is “uncertain or difficult to quantify,” and the amount considers the actual or anticipated harm caused by the breach.  Had the NFL and M.I.A. agreed on the amount of money M.I.A. would pay if she violated the contract’s morals clause, both parties would know how many zeroes should follow the dollar sign in this dispute.

The NFL-M.I.A. fight should serve as a cautionary tale, both for artists and those engaging them:  When does a daring performance stunt become damaging?   If the artist crosses the line, what happens next?  As always, answer these questions before the damage is done.  

Contributing Authors: Domenic Romano and John Guccione

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Rose Massary

Associate Attorney

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Josh Wueller

Senior Law Clerk

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