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Super Bowl XLVI provided plenty of material for the Monday morning radio and television talking heads: Coach Belichick purposefully allowing the Giants to score, the lack of any funny commercials, Mario Manningham’s amazing catch in the game-winning drive, the Patriot receivers’ inability to catch anything and Mrs. Tom Brady publicly blasting those cement-handed receivers.
Yet the hot topic at the water cooler concerned the halftime show. In keeping with recent tradition, the NFL took out its Rolodex of 1980s stars and called up Madonna for this year’s lip-synching spectacle. But it was rapper M.I.A. who stole the show by aiming a middle finger salute directly at television cameras that caused the king of fines, Roger Goodell, to hyperventilate and threw the FCC into red alert. The last time a Super Bowl halftime performer went rogue — the infamous Janet Jackson wardrobe malfunction — CBS got smacked with a $550,000 fine by the FCC that has since been vacated in Federal Court.
If the FCC caves into the family values lobby pushing for another hefty fine, who will be left footing the bill? NBC, the NFL or M.I.A.?
Unfortunately for M.I.A., reports indicate she signed a contract with the NFL containing an indemnity clause putting liability solely on her wallet. Apparently the NFL indemnified NBC because the NFL is in charge of the halftime content, not the network. The NFL, however, is used to levying fines, not paying them, so the performance contract with M.I.A. indemnified the NFL for any potential FCC fines.
M.I.A.’s obscene gesture could cost her six figures due to an indemnity clause in her performance contract with the NFL.
So what exactly is an indemnity clause and can it be enforced in this situation? An indemnity clause (also termed a “hold-harmless clause”) is a contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.[1] An indemnity clause must clearly express that one party is releasing the other from his own negligence and requires precise, clear and unequivocal language.[2]
Most Circuits recognize a difference in an indemnity clause between a business and a consumer (who are arguably on unequal bargaining levels) versus the contracts of two sophisticated parties. Therefore, it is unlikely M.I.A., who surely had adequate legal representation to help her land one of the most watched television performances of all-time, could claim this bargained-for contract with the NFL is unenforceable. Unless, of course, the language of the contract is so vague that no court could interpret the indemnity clause to cover FCC fines from an obscene performance. It is hard to imagine the NFL’s lawyers would let such a drafting error occur.
The other avenue M.I.A. could pursue is to argue that the indemnity clause is unenforceable due to public policy. Although a lengthy fight would probably ensue over proper venue, let us assume this case is heard in Indiana since the Super Bowl was in Indianapolis. Indiana law only renders indemnity clauses unenforceable due to public policy if the contract is to escape liability from death or bodily injury to persons or injury to property from the “sole negligence or willful misconduct of the promisee.”[3] This was not a case of the NFL trying to indemnify itself from injuries it caused by its negligence. The indemnity clause here covered the negligence, or rather the ignorance, of the performer and did not contract around serious bodily injury liability.
Ultimately, M.I.A.’s desperate grasp for a few more minutes in the spotlight appears to have worked, but the price for such fame might be too much for her to handle if the FCC does fine NBC and the indemnity clause in the contract holds up in court.
[1] Praetorian Ins. Co. v. Site Inspection, LLC, 604 F.3d 509, 515 (8th Cir. 2010) (quoting Blacks Law Dictionary 784 (9th Ed. 2009)).
[2] Id.
[3] Portside Energy Corp., Inc. v. Northern Indiana Commuter Transp. Dist., 913 N.E.2d 221, 233 (Ind. Ct. App. 2009) (citing Ind. Code Ann. §26-2-5-1 (West 2011)).