MIA Responds to $1.5 Million Claim for Super Bowl Obscenity

M.I.A., the outspoken English-Sri-Lankan rapper has responded to a report that the National Football League (NFL) filed a $1.5 claim last year with the American Arbitration Association as a result of her Super Bowl XLVI antics.  During the 2012 Super Bowl halftime show featuring Madonna and Nicki Minaj, Mathangi “MIA” Arulpragasam flipped her middle finger to the camera while mouthing “I don’t give a s**t” before television censors could act. The Super Bowl was broadcast to over an estimated 160 million viewers. In addition to monetary compensation, the NFL demanded that the rapper-singer provide a public apology.

This Time it’s Personal

The Hollywood Reporter provided details about the arbitration filing and how the NFL was not amused by the controversial rapper’s spontaneous message for a huge audience. News reports surfaced stating that Madonna was extremely surprised about the incident, which was not a scheduled part of the performance. Neither the television station NBC nor the Federal Communications Commission (FCC) decided to pursue the matter further.

But the NFL decided that it didn’t care to be dictated to by the dramatic diva. In a private arbitration filing, the NFL reportedly demanded $1.5 million as a result of the incident which was seen by viewers of all ages. An NFL spokesperson said that any damages resulting from the settlement of the matter would be given to charity.

The NFL Demands Compliance with Wholesomeness

The NFL’s position is clear. It believes that M.I.A. knew what she was doing and was not lost in the moment. It accuses the performer of using the Super Bowl to create controversy and attention surrounding her – which succeeded. Apparently the NFL’s claim revolves around somewhat murky language that appears in the agreement between M.I.A. and the NFL. It states that the performer agrees to:

“acknowledge the great value of the goodwill associated with the NFL and the tremendous public respect and reputation for wholesomeness enjoyed by the NFL” and that she “ensure that all elements of [her] Performance, including without limitation [her] wardrobe, shall be consistent with such goodwill and reputation.”

The NFL classifies M.I.A.’s actions as “obscene” and clearly not within the “wholesomeness” characteristic that defines a significant part of the NFL audience and a market which it desires to protect. Exactly what that term is supposed to mean is somewhat debatable. Regardless, I’m guessing that after this incident, if there isn’t another relevant section the NFL will be revising its agreements to include a more specific and identifiable conduct clause. I’m surprised one doesn’t exist after the entire Janet Jackson controversy. During that snafu the exposure of Ms. Jackson’s breast which resulted from the actions of fellow performer, Justin Timberlake, was deemed an accidental “wardrobe malfunction.”

Explanation, Excuse or Rationalization?

M.I.A.’s attorney, Howard King released a statement: “She is going to go public with an explanation of how ridiculous it was for the NFL and its fans to devote such furor to this incident, while ignoring the genocide occurring in her home country and several other countries, topics she frequently speaks to.” So basically what he’s implying is that M.I.A. may have committed a minor wrong but there are more important issues to focus upon? And because she makes efforts to speak out about human rights abuses, this somehow justifies her decision to make an obscene gesture and use profanity for what would ostensibly seem to be self-promotion? King also was reported as referring to M.I.A. as a victim of rich NFL tyranny and a “brown, outspoken young lady” – which seems to make a disconcerting statement in itself with regard to its focus. He further stated defiantly that “… we could not be forced into the type of public apology demanded by the NFL.”

M.I.A.’s reply was released on video just a few days ago on YouTube that began with her thoughts on the entire matter: “The NFL thing is completely ridiculous. It’s been making me laugh for a while, but now it’s so boring, I don’t even laugh anymore.”

The diva continued to explain side of the story. Madonna had allegedly hired young teenagers in Ohio as dancers who dressed up in skimpy outfits and performed moves that were sexually suggestive. She summarized the entire dispute as follows:

They scapegoated me into figuring out the goalposts of what is offensive in America like is my finger offensive or is an underage black girl with her legs wide open more offensive to a family audience.

So basically M.I.A.’s defense is that – in her opinion – her gestures were no less offensive than having some teenagers dress up as dancers would and performing moves that might be sexually suggestive. I find this position very difficult to defend given that her actions were clearly over a line which most Americans know – especially public performers on television – is not generally acceptable on broadcast television. Whether or not this falls into the gray area of the agreement is another question to be answered entirely. The firm of Proskauer Rose, LLP is representing the NFL and apparently intends to take the matter further towards an ultimate resolution, which may potentially be in court.

Calculated Risk of Breach of Contract?

One is left to wonder whether M.I.A. and her marketing team specifically requested legal advice before the Super Bowl to specifically address the scope of acceptable conduct.  Whenever deciding whether to enter the “gray area” that frequently exists in any written agreement, one must factor into the equation whether the other party will pursue litigation even if the chances for success may be less than optimal. In this instance, the NFL has plenty of money to burn on pride. They probably would not hesitate to litigate a dispute that meant being embarrassed in front of 160 million people in a manner that M.I.A. should certainly have anticipated.

Michael M. Wechsler, Esq.

Internet / Mobile entrepreneur since 1989, Intellectual Property attorney since the mid 1990s, former in-house counsel at iVillage.com, Senior Vice President of Business Strategy at Zedge, Co-Founder of the IDT Internet Mobile Group, E-Discovery expert and legal consultant with Kroll Ontrack, and owner and operator of TheLaw.com

Michael M. Wechsler, Esq. – who has written posts on The Law Professor.