I’ve always hated lop-sided contracts. There’s something inherently unfair about them. It’s almost as if one party is trying to get away with something in a ‘take it or leave it’ kind of way. I say “almost” because with a written agreement nobody is hiding anything. The lop-sided language is there, in black and white. All you have to do is read it.
So why do people accept such terms? There can be many reasons, but they all boil down to a leap of faith and a belief that the benefits outweigh the risks.
Take for example the release required of the contestants on the TV reality show The Biggest Loser. The New York Times has reported that the show requires contestants to certify that they are “in excellent physical, emotional, psychological and mental health.”
Let’s have a no-nonsense dose of reality here. These contestants are medically obese. That’s why they’re looking to lose a ton of weight. Obesity is not “excellent physical health.” Lying about it on a release is the same as lying about a college degree you never earned on a job application. You can be blamed for falsifying your qualifications. But, I suppose, that is the point. This way if something goes wrong the show could argue “hey, the contestant said they were healthy . . . how were we supposed to know they were a heart attack waiting to happen?”
OK, so there is an elephant in the room about being a picture of health, but there’s more. There is also a huge disclaimer about the qualifications of the medical professionals utilized by the show. According to the New York Times, who received a copy of The Biggest Loser release from a former contestant on the condition of anonymity, the release also states:
“[N]o warranty, representation or guarantee has been made as to the qualifications or credentials of the medical professionals who examine [the contestants] or perform any procedures on [them] in connection with [their] participation in the series, or their ability to diagnose medical conditions that may affect [their] fitness to participate in the series.”
Of course off the legal record a representative for the show said the medical professionals did have the proper credentials. So which is it? Are they properly credentialed? Or not? And if they are real doctors with bona fide qualifications, then why the legal mumbo jumbo that basically says “hey, we don’t know whether these guys really are who they say they are and whether they’re any good; so, don’t blame us if something bad happens.”
The acceptance of lop-sided terms reflect lop-sided negotiating or market power that bullies you and intimidates you into accepting terms you ordinarily wouldn’t if you really had something to say about it. Given some of the extreme weight loss techniques employed by The Biggest Loser contestants in their quest of the quarter-million dollar prize it’s only a matter of time before the release language will get tested in a court of law. Then we’ll really see who the biggest loser really is.