PomPomGate?

Tweet

For over two decades, the National Football League (NFL) has experienced backlash and discontent from its female athletes.  Sex discrimination, unequal pay, and exploitation have left many cheerleaders feeling disgruntled and frustrated by their billionaire employers.  Fed up with only minor progression, the cheerleaders are holding up their most enthusiastic spirit finger by filing a class-action lawsuit against the league.

If a Raiderette gained five pounds or looked “too soft,” they may be benched without pay.

In the complaint, filed in California on January 31, 2017, the plaintiffs allege that the owners and senior executives of 26 NFL member teams are in a conspiracy to suppress their female athletes’ compensation.  Additionally, it is contended that the defendants are in violation of federal antitrust law by entering into a series of agreements designed to eliminate competition amongst cheerleaders.  According to the allegations, the defendants intentionally prevent female athletes from being recruited by teams within the NFL, while also prohibiting them from being employed by professional cheerleading squads outside the league.  The conspiracy was recently renewed—plaintiffs assert—prior to the 2016-2017 NFL season when they were forced to sign new employment contracts that were filed with the NFL for safekeeping.

This is not the first time NFL teams have been on the receiving end of a class action representing its female athletes.  Back in 2014, the cheerleading squad for the Oakland Raiders, known as the Raiderettes, was represented by one of its members in a claim against the team owners.  The suit alleged that the Raiders paid their cheerleaders less than $5 per hour and made them wait until the end of the season before receiving any compensation.  For all the required labor, including attending practices, home games, photo sessions, and special events, the cheerleaders were only making $1,250 per season.  Lacy T., the lead plaintiff in the case, also claimed that if a Raiderette gained five pounds or looked “too soft,” they may be benched without pay.

The Raiders ended up settling that case for $1.25 million and offered the Raiderettes new employment contracts that increased their hourly wage to $9.  The result had a substantial impact on other NFL cheerleading teams that were experiencing similar circumstances and wanting to recover.  In facing such claims—and in lieu of trial—the Cincinnati Bengals, Tampa Bay Buccaneers, and New York Jets all settled their cases for a combined total of $1.35 million to be given to their respective cheerleading squads.

The NFL senior executives and team owners still possess the ball and all of the arbitrary power that comes with it.

In response to the string of litigation occurring in 2014, most NFL member teams have increased their female athletes’ pay to minimum wage.  In 2015, California Governor Jerry Brown passed a law requiring professional sports teams to pay their cheerleaders minimum wage and to provide certain benefits, such as sick leave and workers’ compensation.  Despite these feats, progress is hard to effect when the issues are being settled outside of court instead of statutorily.  The NFL senior executives and team owners still possess the ball and all of the arbitrary power that comes with it.

A day after the current lawsuit was filed, NFL Players Association executive director DeMaurice Smith stated in an annual news conference that the players’ union supported the lawsuit.  In a report by ESPN on the matter, Smith said,

Let’s just be blunt, they were being paid less than minimum wage, and so in a league that makes billions and billions of dollars, it took a group of women to come together to seek and file a wage and sex discrimination action against the National Football League only to have that settled.  And now nearly a year later another case has popped up.  So, one, we’re a union and we believe that people should be paid their fair wage, and we have those fights with the National Football League.

Unlike the 2014 lawsuits, the present action is unique in that it names as defendants—not only the 26 privately owned NFL member teams—but also the league itself on the ground that it is a joint employer of the cheerleaders.  Secondly, the claims are not for higher wages as in the previous cases, but are instead centralized on more “sinister” allegations, as Drexel Bradshaw, the plaintiffs’ attorney, put it.  The complaint asserts that the defendants colluded to keep wages artificially low by eliminating competition in violation of the Sherman Act and the Cartwright Act—California’s own version of the federal law.

Plaintiffs contend that the defendants violated these statutes when they entered into and engaged in unlawful agreements for the purpose of restraining trade and commerce.  As a multi-billion dollar industry that seems to have an unending growth of popularity, the NFL is well adept to paying its athletes incredible contract prices.  According to a report by Forbes, the average NFL player salary is $2.5 million, with Cam Newton among the highest paid players after signing a $103.8 million contract in 2015.  The complaint makes note of this stark difference in pay and even points out that NFL team mascots, who possess no discernable skill can make up to $60,000 a year.  So why is it that professional cheerleaders, the NFL’s largest group of female athletes and employees, have to go to court just so they can get their annual salaries raised to $1,000?

The crucial factor missing from the cheerleaders’ equation, and allegedly by the defendants’ intent, is recruitment.  Whereas after their draft contract ends, NFL players utilize the advantages of the free market by choosing the team that offers the highest price, NFL cheerleaders are not afforded these benefits.  As discussed at length in the complaint, the NFL teams have allegedly agreed to pay plaintiffs less than fair value for their labor and also agreed not to recruit each other’s female athletes.  In addition, the complaint alleges that the cheerleaders are prohibited from discussing their pay with teammates, in an attempt to keep the conspiracy under veil.

She had to work in a pizza parlor while performing with the 49ers squad in order to pay rent and was forced to buy stacks of calendars to resell.

As a result of the defendants’ efforts to thwart competition for skilled labor among the NFL member teams, the plaintiffs claim that they are earning far less than the fair market value of their work, which they claim should be around $100,000 per year.  To support that figure, plaintiffs reference the Dancers Alliance, a union for professional dancers and choreographers, which has prescribed rates based on minimum compensation for live shows and performances.

According to the union’s guidelines, plaintiffs should also be given compensation when their likeness is being commercially used and sold.  Currently, NFL cheerleaders are required to sign over to the defendants the right to use their likeness without compensation.  This means that the profits gained from the sale of calendars and other novelty items featuring the plaintiffs’ likenesses are never shared with them.  A 2003 Forbes statistic declared that NFL cheerleaders garner $1 million in revenue per team per year.  The plaintiffs cite this statistic to suggest that that number would be even greater today an use it to justify their claim that the fair market value of their work is $100,000.

One plaintiff using the pseudonym Jane Doe is a former cheerleader for the San Francisco 49ers.  She has alleged that the defendants used fear and intimidation tactics to keep their wages suppressed.  “Female athletes were told by defendant NFL member team agents they were lucky to be chosen, should be grateful and could be quickly replaced if they failed to perform in any way.”  In an email sent to NBC News, Doe stated that she had to work in a pizza parlor while performing with the 49ers squad in order to pay rent and was forced to buy stacks of calendars to resell.  She did not receive any compensation in return.

Because the lawsuit was filed so recently, it is still too early to tell how everything will play out.  Although there are only four named plaintiffs as of now but more plaintiffs are expected to join the litigation since the class is intended to cover all female athletes employed by the NFL.  Yet the trend of the 2014 cases begs the question whether this case will too be settled outside of court.  Plaintiffs estimate damages in the range of $100 million to $300 million and while this is far greater than any settlement amount agreed upon by the NFL, players like Cam Newton would expect nothing less.