By Ashley Arnett
National Football League (“NFL”) organizations across the country are facing a recent spate of wage and hour litigation. Within the span of five months, five different NFL cheerleading squads have filed complaints within their respective states seeking relief for alleged inadequate compensation. The Oakland Raiders (“Raiderettes”), Cincinnati Bengals (“Ben-gals”), Buffalo Bills (“Jills”), New York Jets (“Flight Crew”), and, most recently, the Tampa Bay Buccaneers are now scrambling to review their cheerleader employee agreements in an effort to avoid costly litigation. As a whole, the outcomes of these cases are going to rely on the classification of the cheerleaders as employees or independent contractors. If the NFL organizations have the right to control the manner and means of accomplishing their desired result, then the cheerleaders are properly classified as employees. As has been harped on since the original filing, this seems to be a fairly straightforward analysis. 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 of the NFL organizations that do have cheerleading squads seem to have control over every aspect of the cheerleaders’ lives, and this will undoubtedly result in negative consequences for the football organizations.
As one US News journalist put it, the frequency of these lawsuits are “creating a headache” for the NFL who has seen its fair share of legal issues in the past few years. From player head injuries, accusations of internal homophobia, a 2012 referee strike, and the latest Redskins trademark issue, the NFL has experienced a turbulent legal atmosphere in recent years — and that is not going to stop now. On June 4, 2014, a second complaint filed on behalf of the Oakland Raiderettes now poses a threat to the NFL itself. The claim alleges that the NFL is a joint employer of the Raiderette cheerleading squad and, therefore, is equally liable for the deficiencies in compensation. This is the first time the NFL has been added to any cheerleader lawsuit and raises the question if this will be a growing trend. Technically, the NFL does not employ any of the cheerleading squads, nor does the League require teams to staff cheerleaders. The legal question, however, revolves around the potential agency relationship that exists between the alleged employers of the cheerleaders, the Oakland Raiders, and the NFL.
The claim points out that in Section 9 (a)(2) of the NFL Constitution and Bylaws (“Constitution”), NFL teams are required to file all written employment contracts with non-player employees in the NFL League Office. The claim alleges that the NFL regulated those agreements and, in turn, exercised control over the wages, hours, working conditions, as well as suffered or permitted the Raiderettes to work, and/or engaged the Raiderettes to work. It further alleges that by operation of law the NFL became a party to the Raiderette Agreements, and an agency relationship between the NFL and the Raiders was created for the purposes of regulating Raiderette employment. The claim finishes up by alleging that there was a concerted action between the NFL and the Oakland Raiders to depress the wages of female athletes and, therefore, the NFL is equally liable for the conditions that the Raiderettes had to endure.
In order to successfully include the NFL in this litigation, the Raiderettes need to prove, among other things, that the Oakland Raiders were in fact acting as agents of the NFL in their contractual dealings with the Raiderettes. An agent relationship is created when one person, a principal, manifests assent to another person, an agent, that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. The crux of the litigation will rest on the NFL’s right of control over the Oakland Raider organization and whether the team was acting on the NFL’s behalf in employing the Raiderettes. The claim cites to Section 9.3 (a)(2) of the Constitution to evidence that the NFL Constitution requires a regulation of cheerleader employment agreements. This section states in whole:
Every contract with any employee of the League or of a club therein shall contain a clause wherein the employee agrees to abide and be legally bound by the Constitution and Bylaws and the Rules and Regulations of the League, as well as by the decisions of the Commissioner, which decisions shall be final, conclusive, and unappealable . . . . Every written employment contract with any non-player employee of a club shall be filed in the League office promptly following its execution and shall provide: that such contract sets forth the entire agreement between the parties; that no oral agreements, and no other written agreements, except as are attached to the contract or specifically incorporated by reference therein, exist between them; that such written contract (including agreements attached thereto or incorporated therein) sets forth the entire agreement or understanding not reduced to writing and specifically incorporated into such employment contract prior to its execution or when subsequently amended.
While the NFL requires copies of all non-player contracts be filed with the NFL office, it is not clear that the NFL is actually responsible for anything other than holding these agreements on file. The constitutional language makes no specific mention of regulation of the content of those contracts and minimal regulation of non-player conduct at all. For example, mention of cheerleader conduct appears merely one time, in Section N — a section dealing with the noise regulation of both cheerleaders and mascots. It is a stretch to impute the entirety of this constitutional language to mandate a review of every team’s non-player compensation. While it seems to be true that the NFL is not prohibited from raising an issue with teams or delegating standards for any aspect of a team’s business, at most it can be said that the NFL did a disservice by not becoming familiar with each team’s practices of employing cheerleaders — a decision that is already casting a negative light on the gender inequalities present in professional football.
It is also tenuous to claim that the Oakland Raiders were acting on behalf of the NFL in securing this business-generating contract. The NFL itself has no role in selection, hours, wages, or duties of the cheerleaders. Organizations, as mere “members” of the NFL, are given the discretion to employ cheerleading squads if they choose — a decision that generates an average of $1 million extra revenue per season for the football organizations. It is no doubt that these women are being exploited and underpaid for the business objectives of the individual teams as opposed to the revenue objectives of the NFL. As the Constitution spells out, “[t]he purpose and objects for which the [NFL] is organized are: to promote and foster the primary business of League members, each member being an owner of a professional football club located in the United States.” Read more literally, the purpose of the NFL is to further the business of league members— not to set requirements for league members in order to further the business of the NFL. Instead, the NFL acts as a type of gatekeeper that “promote[s] and foster[s]” the conduct of all the teams in the league, so as to ensure uniformity and fairness. The NFL was not created to employ individual teams as agents for the purpose of securing business contracts, but was instituted to regulate a professional league. Even though there are severe deficiencies in the pay for professional cheerleaders, it seems highly unlikely that the NFL will remain as a party in this dispute.
The outcome of this epidemic poses significant implications for the future of professional football cheerleading and the outcome has the potential to have a national impact. At the end of the 2013 season, there were six teams that did not have full-time cheerleading squads: Pittsburgh Steelers, Cleveland Browns, Chicago Bears, New York Giants, and Green Bay Packers. Since these lawsuits have popped up, one cheerleading squad, the Buffalo Jills, has been suspended and there is no telling if other teams will follow in tow. The surprising facet of it all is that cheerleaders continue to show up to tryouts with the hopes of making the squads — knowing that the pay and conditions are dismal. As one unnamed, former Buffalo Jill admits, “there are many girls who are against the suit. They claim that we knew there would be little to no pay and [it] was an invaluable experience.” This raises questions about the gender inequalities that are so inherently ingrained into the American lifestyle that women have no sense of the intrinsic wrong that is surrounding this litigation. Considering the NFL is a male-dominated field that makes millions upon millions of dollars every year, it is illogical that cheerleaders are exploited for less than minimum wage. While the NFL itself may have a good chance of escaping the consequences of this wage oversight, the individual organizations will likely feel the effects of the unequal playing field between the men and women that work for them.
Ashley Arnett is a rising 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.
