As The Hollywood Reporter revealed last September, the NFL has been secretly pursuing M.I.A. in arbitration in the aftermath of Super Bowl XLVI on Feb. 5, 2012. During the event, watched by nearly 167 million TV households, the Sri Lankan singer-rapper extended her middle finger during a performance of Madonna’s “Give Me All Your Luvin'”
M.I.A. wasn’t paid for the event as is the custom of the league. But nevertheless, the NFL spent the first two years of arbitration demanding $1.5 million for allegedly breaching her performance contract and tarnishing its goodwill and reputation.
Now the NFL has added an additional claim, seeking $15.1 million more in “restitution” as the alleged value of public exposure she received by appearing for an approximately two minute segment during Madonna’s performance. The figure is based on what advertisers would have paid for ads during this time. “The claim for restitution lacks any basis in law, fact, or logic,” say M.I.A.’s response papers, filed on Friday.
The music superstar tells the arbitrator that the “continued pursuit of this proceeding is transparently an exercise by the NFL intended solely to bully and make an example of Respondents for daring to challenge NFL.”
As we previously reported, Howard King, the attorney for M.I.A., has been attempting to undercut the NFL’s argument that its reputation has been damaged by soliciting information from the public on what he says is the NFL’s lack of wholesomeness. He has even set up an e-mail address — NFL@khpblaw.com — intended to “balance the playing field.”
The latest arbitration papers for M.I.A. go into the “profane, bawdy, lascivious, demeaning and/or unacceptable behavior by its players, team owners, coaching and management personnel and by performers chosen and endorsed by NFL to perform in its halftime shows.”
For example, there’s Michael Jackson’s performance at the 1993 Super Bowl halftime, where the singer grabbed his genitalia while singing “Billie Jean.”
“This was NFL’s first foray into salacious performances in their Halftime Shows,” says M.I.A.’s arbitration papers. “Discovery will demonstrate that NFL was fully aware that Jackson was going to engage in such ‘genitalia adjustments’ in his performance.”
Then, there’s Prince’s performance at the 2007 Super Bowl halftime show.
“During part of his performance, he was illuminated against the backdrop of a billowing sheet of fabric to project a huge shadow of himself,” M.I.A.’s legal papers say. “His oversized shadow was shown caressing the neck of his stylized trademark guitar…as if stroking an erect oversized phallus in a manner reminiscent of Jimi Hendrix performances where he fondled his guitar’s neck. Discovery is expected to confirm that NFL knew in advance exactly what would be presented, from pre-game rehearsal and from the stage set configuration.”
Even Madonna at the 2012 Super Bowl is mentioned:
“The Show prominently features scenes of very young women dancers (possibly not even of adult age) poised in reclining positions, with their feet and hands and/or shoulders planted on the ground behind them. The women lewdly thrust their elevated pelvic areas in a manner unmistakably evocative of sexual acts (very probably qualifying as ‘indecent’ under the FCC definition), or at the very least, in a manner wholly consistent with the scenes a faire in a strip club.”
M.I.A.’s arbitration papers aren’t confined to halftime performers either. A recent proposal to assess a 15-yard penalty for use of the “N-Word” is contrasted against the league’s $16.6 million demand from the singer. The bullying scandal involving Miami Dolphins offensive lineman Richie Incognito is addressed. A judge’s rejection of a proposed $765 million settlement for concussions is also mentioned.
The singer says there can’t be liability or damage based on speculative FCC action, and her legal papers say it is “implausible” that any indecency fine will come after years of regulatory inaction and recent decisions at the U.S. Supreme Court.
What’s more, the responsibility of broadcaster NBC could be investigated as the arbitration continues forward.
“NFL, and NBC, failed to exercise ordinary care in the conduct of the Halftime show by not activating the ‘5 second delay’ system in place for the broadcast,” says M.I.A.’s papers. “Any alleged fault or liability of Respondents should be diminished by NBC’s dereliction. Discovery has not been taken yet to determine whether contractually NBC owed a duty to NFL to properly operate the delay system. Very likely that is indeed the case.”