By Ashley Arnett
The first outcome has surfaced in a series of National Football League (“NFL”) cheerleader lawsuits that were filed over the span of 2014. On September 4, 2014, attorneys for both the Oakland Raiders and their cheerleaders (“Raiderettes”) announced that a settlement had been reached in favor of the aggrieved women. The settlement, which is still subject to court approval, would award $1.25 million to all current and former Raiderettes that worked for the team since the 2010-2011 NFL season. The settlement would pay an average of $6,000 in back pay and penalties for each of the three seasons prior to the 2013-2014 season. In addition, the women will receive $2,500 in back pay and penalties for the 2013-2014 season, noting that the Raiderettes’ compensation was increased to minimum wage mid-season as a result of this litigation. The plaintiffs to this dispute, Lacy T. and Sarah G., will each receive an additional $10,000 for initiating the lawsuit and their attorneys will walk away with around 1/3 of the total settlement amount.
Not only were the Raiderettes victorious in the arbitration room, but their efforts made traction in other ways as well. On July 1, 2014, six months after the original complaint was filed, the Raiders organization announced the implementation of a new cheerleading contract that nearly tripled the cheerleaders’ pay. Instead of earning $125 per game regardless of the number of hours worked, the women now receive compensation at a rate of $9 per hour plus overtime. The new contract also provides for reimbursement of business and mileage expenses and the women will now receive their paychecks every two weeks as opposed to one lump sum at the end of the season. Additionally, the Raider organization eliminated the provisions that permitted illegal deduction for minor rules infractions — like showing up a few minutes late to rehearsals, wearing the wrong color nail polish, or failing to bring the correct pom poms to practice — and the girls are now entitled to a 10-minute break on game days.
If approved by the court, the settlement would bring an end to the precedential NFL cheerleading lawsuit that motivated women across the country to think twice about the common practices of each NFL team. In all, thirteen current and former NFL cheerleaders filed six complaints against five different NFL organizations seeking relief for alleged inadequate compensation. The Oakland Raiders, Cincinnati Bengals, Buffalo Bills, New York Jets, Tampa Bay Buccaneers, and the NFL itself are all under fire for policies that effectively disregarded state labor laws and diminished the significance of cheerleaders in the NFL. As a whole, the outcome for each of these disputes centers on the classification of cheerleaders as employees or independent contractors. Even though most of, if not all, the contracts in dispute include the terms “independent contractor,” labor law dictates that the analysis is focused on the amount of control that the teams have over the women — a fairly straightforward and one-sided investigation. Cheerleaders are controlled in almost every aspect of their involvement: from attendance at games, charity events, and team functions to specific requirements for hair, skin, nails, body fat, and dining etiquette. It is no doubt that most NFL organizations exercise the amount of control requisite for the finding of an employer-employee relationship. It would be illogical to predict that any court would reason differently, and the emergence of this agreement might be an indicator of just that.
The approval of this settlement would mark the first substantial victory for NFL cheerleaders and presumably set a precedent for the five other lawsuits that are currently pending. While the majority of the lawsuits have seen little movement over the last eight months, it is not groundless to predict that this agreement will spark settlements across the grid. A day after the Raiderettes’ settlement proposal was announced, on September 5, 2014, a tentative ruling was made in the Raiders’ second cheerleading lawsuit that was filed in early July 2014. In deciding to continue a hearing that was set to take place on September 17, 2014, Judge Ioana Petrou of the Alameda County Superior Court stated:
“The hearing is being continued in light of the pending Motion for Approval of Class Settlement . . . If that class settlement is approved, and if most or all of the Raiderettes opt to accept the terms of that settlement, it would obviously have a significant impact on this case, and possibly even make this case moot. It makes little sense for the Court to proceed with this case until it is clear which Plaintiffs (if any) are still asserting any claims that remain to be litigated.”
Certainly, it is easier to make an immediate decision when it comes to two lawsuits that implicate the same pool of cheerleaders — the Raiderettes — however, the crux of each case is dependent on nearly identical labor law principles. The only claim that involves a slightly altered set of circumstances relates to the lawsuit filed by cheerleaders of the Buffalo Bills (“Jills”). In that dispute, the Jills were contracted out to a third party — potentially insulating the Bills organization from liability. However, a New York Supreme Court judge quieted those pleas when he refused to grant the team’s motion to dismiss in late June 2014. The judge supported this decision by stating that there was enough evidence to suggest that the Bills were involved with the cheerleaders in more ways than to just protect the integrity of the team’s brand (as was claimed). More specifically:
“The minute control that [the third parties] exercised over the work of the cheerleaders supports the conclusion that they were not independent contractors but employees. The Bills insisted that [the third parties] obtain the agreement from each of the cheerleaders that they were independent contractors and the Bills directed that the agreements be returned promptly to them. These facts are further indication of the control the Bill exercised over the Jills cheerleaders despite the fact that they were in the nominal employment of the subcontractors.”
Despite the minimal dissimilarities that exist between each team’s management of their cheerleaders, it would be baseless to conclude that the results of each dispute will be mutually exclusive. Bottom line, both the NFL and the individual organizations have done a poor job monitoring the conditions of the professional cheerleaders that they employ. At a time when the NFL is facing substantial backlash over its handling of a domestic violence case involving a former Baltimore Raven, it would be advantageous for the league to cut its losses and encourage the most generous agreements that are within the bounds of each team’s responsibility. Either way, this decision, if approved, marks a significant leap forward for professional cheerleaders and women across the nation.
Ashley Arnett is a 3L at the University of California, Davis School of Law. She is a Senior Articles Editor on the UC Davis Law Review and the President of the Entertainment and Sports Law Society. Ashley recently placed 3rd place in the Sports Lawyers Association’s 2014 Student Writing Competition for her article on NFL cheerleader litigation.
