By Jordan Kobritz
What began as an isolated lawsuit has become an epidemic. The Buffalo Jills became the third NFL cheerleading squad in the past four months to sue over wages – or lack thereof – and working conditions.
Lawsuits have also been filed by the Raiderettes against the Oakland Raiders and the Ben-Gals against the Cincinnati Bengals. All three suits detail the lack of compensation, strict club control over dress and appearance – at the cheerleaders’ own expense – and the summary imposition of fines and other penalties for any rule violations. Rather than the glitter and glamour depicted on television and described on team websites, cheerleading, at least NFL-style, appears to be nothing more than a scam perpetrated on naive young women and an unsuspecting public.
One of the most damning allegations contained in the Jills’ complaint is that they are treated as independent contractors rather than employees. Employers do not have to pay social security, Medicare and unemployment taxes nor do they have to withhold federal income taxes on independent contractors. As independent contractors, cheerleaders are responsible for their own tax withholdings — when they are paid at all – and are ineligible for workers compensation insurance and other benefits usually associated with employment. But any objective review of their circumstances leads to only one conclusion: The cheerleaders are in fact employees.
For federal employment purposes, the usual common law rules are applied to determine whether someone is an independent contractor or an employee. Courts focus on the degree of control vs. independence in the relationship. Factors that are considered fall into three categories: Behavioral Control, Financial Control and the Relationship of the Parties.
Behavioral Control covers facts that show whether the business has a right to direct and control what work is accomplished and how the work is done through instructions, training, or other means.
Financial Control looks at facts that show whether the business has a right to direct or control the financial aspects of the worker’s job, including the extent to which the worker has unreimbursed business related expenses, the worker’s investment in the tools used in performing services, how the business pays the worker and whether the worker can realize a profit or incur a loss.
Factors that determine the Relationship of the Parties include the terms of their written contracts, whether benefits are provided to the workers, the permanency of the relationship, and how integral the services provided by the worker are to the regular business of the company.
The standards that determine state employment vary from state to state, which means it’s possible that cheerleaders in one state could be declared employees while cheerleaders in another state are classified as independent contractors. However, the general rule is that a worker is an independent contractor if the payer has “the right to control or direct only the result of the work and not what will be done and how it will be done.” An individual is an employee if he or she performs services that can be controlled by an employer, i.e., what will be done and how it will be done. The key is whether the employer controls the details of how the services are performed.
You want details? Teams control a cheerleader’s hairstyle and makeup, right down to the length of finger nails and color of eye shadow, for which the girls foot the bill. Cheerleaders are told when to show up for work and which events they must attend. To add insult to injury, cheerleaders are usually required to pay the cost of traveling to such events. Every team has a detailed handbook and Code of Conduct that must be adhered to.
The Ben-Gals handbook regulates everything from panties to boobs. The section on panties and pantyhose reads as follows: “No panties are to be worn under practice clothes or uniform, not even thong panties. Wear pantyhose to match skin tone (L’eggs). No Danskins/Dance type tights. No control top at practices or games. No exposed skin at ankles — pantyhose must extend down into socks.” Admonitions concerning a cheerleader’s chest include: “No slouching breasts. Support as needed. Black or nude seamless bra mandatory for games. (No lace)”
The Jills’ handbook consists of twelve pages of dos and don’ts that are both demeaning and insulting in their detail. Cheerleaders are given instructions on such things as conversation starters for appearances and etiquette for formal dining (25 rules), rules for communicating with people with disabilities (17 rules), and rules on female hygiene (17 rules). Examples include: “When trying to capture a small piece of food onto a utensil, it is acceptable to use another utensil for aiding it aboard. Never use your fingers.” In the section of the handbook titled, “General hygiene & lady body maintenance,” cheerleaders are told which tampons to use and how frequently to change them. Another clause instructs them how to keep their “intimate areas” fresh.
Every cheerleader is subject to a weight and appearance clause which is contained in their contract or the team’s handbook. The ultimate indignity is the so-called “Jiggle Test” imposed on the Jills. Periodically, cheerleaders’ body parts – stomachs, arms, legs, thighs and butts – are scrutinized while they perform jumping jacks before team personnel. If their bodies fail to measure up to some subjective standard, cheerleaders are “…penalized, suspended or dismissed.”
The most scathing complaint, and potentially the greatest risk to the defendants, is how much — or little — the cheerleaders are paid. The suit against the Bengals alleges that Ben-Gals are paid only $90 per game, plus whatever they make during paid appearances. In addition, the rules require cheerleaders to sign up for at least 12 charity (i.e., unpaid) appearances for the season before they will be selected to attend a paid event.
The lawsuit against the Raiders alleges that the team withholds all pay from the Raiderettes until the end of the season, does not pay for all hours worked and forces the cheerleaders to pay many of their own business expenses. Cheerleaders are paid $1,250 per season, which amounts to less than $5 per hour for the time they spend rehearsing, performing and appearing at events for which they are not compensated.
Jills are not paid for game day cheering, practice, or the bulk of their required minimum 20 personal appearances. When they do receive tips, for example during the Jills Golf Tournament (for which participation is mandatory), they are required to turn them in. In addition to being a freebee, the golf tournament itself is particularly demeaning. According to the allegations in the complaint, cheerleaders are required to wear bikinis, are “auctioned off” to the highest bidder and forced to ride around in the winner’s golf cart where they are subjected to “…degrading sexual comments and inappropriate touching.”
While the cheerleaders themselves are underpaid, they generate millions for their employers. A 2003 article in Forbes estimated that cheerleaders generated a minimum of $1 million per year for their teams. That amount has surely increased over the past decade.
The NFL should be embarrassed. Teams are swimming in cash — the league grossed nearly $10 billion in revenue last year — but they can’t resist squeezing the little people that are affiliated with the most popular sport in the country. In contrast to the cheerleaders, NFL Commissioner Roger Goodell was paid $44.2 million in 2012, based on tax returns filed by the league. Surely the courts will decide that cheerleaders are entitled to be paid minimum wage.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and also maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at jordan.kobritz@cortland.edu.
