Over the past four years, NFL cheerleaders have used litigation to demand, and to some degree receive, more equitable pay for their labor. This week a new kind of claim has emerged that could compel NFL teams to revise workplace policies and treat cheerleaders with greater dignity.
The claim comes through former New Orleans Saints cheerleader Bailey Davis, who has filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Davis is represented by Florida attorney Sara Blackwell. The charge, as first detailed by Ken Belson in The New York Times, contends that Davis and other members of the all-female “Saintsations” cheer and dance squad have been subjected to unlawful sex discrimination. The main source of that alleged discrimination is found in workplace social media and fraternization policies.
SI has obtained a copy of the charge. In it, Davis maintains that the Saints impose blatant and patriarchal double standards. For instance, Saints’ cheerleaders are obligated to avoid any contact or interactions with players in social settings or online, while players are not bound by such restrictions. Cheerleaders are also vulnerable to swift termination of employment if they “have contact with a player even if not initiated by the cheerleader” or if they “post a picture that is considered ‘semi-nude’ or ‘lingerie’” by a team official. As the charge notes, “no player has ever been terminated for having consensual contact with a cheerleader.” Similarly, players “are not limited or bound by any rules on social media activity.”
Davis invokes a clear stake in seeing these rules changed. According to her charge, Davis says the Saints fired her in part because of unfounded rumors that she was “hanging out with the players, messaging players and was seen at a party with a player.” In addition, Davis was reprimanded for posting on her private Instagram a photo of her “in a black one-piece which was lace covered” and for supposedly displaying a “dirty face”—whatever that means—in the photo.
The potential merits and drawbacks of the charge are discussed below.
Understanding the broader context of cheerleader claims against the NFL
NFL teams have long treated their players and cheerleaders differently. In some respects this is neither surprising nor necessarily worrisome. Football players and cheerleaders have very separate jobs, with varying occupational risks and differing impacts on the core business of competitive football. Their respective employment expectations are thus structured with different objectives in mind.
NFL players and cheerleaders also experience unique employment relationships with their teams. Players are “hired” through the distinctive employment rules that govern the NFL draft, trades and free agency and that involve NFL teams competing with one another to hire players. Players are also unionized, meaning they and their teams are bound by numerous workplace requirements contained in a collective bargaining agreement. Cheerleaders, in contrast, are hired directly by teams, much like those teams hire other staff. Also, as observed by U.S. District Judge William Alsup last year in a ruling involving NFL cheerleaders, there is no record of NFL teams competing with one another to hire cheerleaders. In addition, NFL cheerleaders are typically regarded as either independent contractors or non-unionized employees. In either classification, the cheerleaders and their teams enjoy more latitude in defining the employment relationship than do unionized players and teams.
The fact that teams treat players and cheerleaders differently is therefore not automatically grounds for suspicion. However, certain differences can be suggestive of sexism and unlawful discrimination, and are worthy of judicial review.
To that end, groups of current and former NFL cheerleaders have used multiple lawsuits to sue both the league and the teams that feature cheerleaders (the Chicago Bears, Green Bay Packers, Pittsburgh Steelers, Cleveland Browns and the New York Giants do not employ cheerleaders; the Buffalo Bills also do not employ cheerleaders but have been sued over the Buffalo Jills, which the Bills discontinued in 2014). In these cases, the cheerleaders argue they have been denied minimum wage and overtime pay in violation of federal and state wage laws. They have also argued that teams have, in violation of antitrust law, conspired to pay them low wages.
Whether lawful or unlawful, the low pay of cheerleaders is startling. Some earn less than $1,000 a year. It is not uncommon for cheerleaders to be paid just $75 for cheering in an NFL game. Cheerleaders are also often denied compensation for practice, rehearsals, photo sessions or travel on behalf of the team. Attorneys for cheerleaders maintain that their clients’ effective pay has been about $3 dollars per hour, which is less than half of the federal minimum wage of $7.25 per hour. Cheerleaders obviously earn a mere fraction of salaries paid to NFL players—practice squad players earn at least $7,200 a week, or more than 700% what many cheerleaders earn in a year. Cheerleaders are even paid decidedly less than mascots, who earn $25,000 to $65,000 per year plus benefits.
Low pay isn’t the only hazard of the job. Some of the cheerleaders have also been subjected to degrading “performance assessments.” For instance, former members of the Buffalo Jills have talked about the so-called “jiggle test” to measure body firmness.
In response to these claims, teams have argued that cheerleaders are not employees but rather independent contractors who freely and knowingly accept these workplace conditions. The classification of a worker as an employee or independent contractor is very consequential for cheerleaders: independent contractors, unlike most employees, are exempt from the Fair Labor Standards Act and are thus not guaranteed minimum wage and overtime pay.
There are a number of factors that courts use to distinguish employees from independent contractors. One such factor is whether an employment contract clarifies whether the worker is an employee or an independent contractor. Also, independent contractors are usually hired for specific projects and without an expectation for continued work; independent contractors also exert significant control over how they perform their work.
NFL teams have stressed that cheerleaders are only hired for one season and they must try out again the following season without any guarantee of a spot. This arrangement is consistent with an independent contractor relationship. On the other hand, NFL teams exert enormous control over how cheerleaders perform their work and even how they guarantee their personal hygiene. These types of dynamics are more suggestive of an employee relationship.
Although none of the cheerleaders cases has gone to trial (yet), the New York Jets opted to settle their lawsuit with their cheerleaders, The Flight Crew, and reportedly agreed to pay each cheerleader in the lawsuit $2,500 per season, plus interest and additional payments for photo shoots. The Oakland Raiders and Tampa Bay Buccaneers have also settled similar claims with their cheerleaders. In addition, the Jills’ lawsuit against Bills has been certified as a class action and continues to progress in the pretrial process. On the other hand, an antitrust lawsuit brought by a former cheerleader against the NFL and 26 teams was dismissed last year. In dismissing the lawsuit, Judge Alsup noted that the former cheerleader failed to explain how teams had conspired to suppress wages.
Keys to the Davis EEOC charge
By filing a charge of discrimination with the EEOC, Davis begins a multi-step process for attempting to show that the Saints and NFL have violated Title VII of the Civil Rights Act of 1964. Title VII forbids employers from treating workers unfavorably because of their sex (along with certain other demographic traits).
Davis contends that the Saints have imposed workplace rules that are blatantly sexist and degrading. The charge notes that while the all-female Saintsations are forbidden from interacting or following players either in live social settings or on social media, the all-male players (and coaches for that matter) do not face the same restrictions. Saintsations members are also limited in the kinds of social media postings they are allowed to make whereas players are given no such limitations.
The absence of rules governing players’ social media interactions is stressed in the charge. Davis notes that in spite of a CBA that occupies 316 pages of mostly single-spaced sentences, the NFL has not bargained for “anything regarding dating, contacting or fraternizing cheerleaders or anyone” or for “any rules or guidelines for social media, posting or appearances other than as it relates to promoting products.” Even the far-reaching Article 46, which empowers NFL commissioner Roger Goodell to punish players for “conduct detrimental to the integrity of, or public confidence in, the game of football”, has not been used to sanction players over social media usage and fraternizing cheerleaders. The closest example of such a sanction would be when the NFL fined Brett Favre $50,000 in 2010 as part of an investigation into whether Favre’s “interaction with New York Jets game-day employee Jenn Sterger in 2008 violated the NFL Personal Conduct Policy.” The fine, however, reflected Favre refusing to turn over his phone, rather than allegations he sent Sterger inappropriate texts.
Going forward, an EEOC investigator will be assigned to review the charge. The investigator will seek records from Davis, the Saints and the NFL. The requested records will include workplace polices as well as memoranda explaining how those policies came into existence. The investigator will want to know how these policies are applied to individual employees and whether those policies are reviewed and updated by management. This type of documentation will shed light on whether the Saints have engaged in discriminatory conduct or whether there are lawful explanations for the varying treatment of Saints players and Saints cheerleaders. The investigator can also use the EEOC’s subpoena power to compel cooperation.
The EEOC investigator might also pay visits to the Saints and the NFL. The visits would be designed to conduct interviews of Saints and NFL officials and gauge their respective understandings of workplace rules and how those rules are enforced. The investigator will also meet with Davis and fellow former members of the Saintsations to see how well their claims hold up against questioning. The investigator will likely ask whether NFL cheerleaders facing possible adverse employment consequences merely if a player attempts to contact her creates worrisome possibilities for sexual exploitation and blackmail.
How the Saints and NFL will defend against the charge
Saints and NFL officials will likely offer several kinds of defenses in their meetings with the EEOC investigator.
As a starting point, they will likely attempt to offer an alternative and lawful explanation for Davis’s firing. The charge contains facts and allegations selected by Davis for purposes of offering the most convincing narrative. In response, the Saints and NFL will offer other facts and allegations that try to complicate or contradict Davis.
For instance, should there be emails, texts or recordings of Davis that cast doubt on her account, her claim would be weakened. Likewise, if the Saints or NFL have evidence of players or other male employees being warned about, or punished over, inappropriate social media interactions or fraternization, the Saints and NFL would be able to more effectively rebut allegations of sex discrimination.
The Saints and NFL will also stress that workplace rules governing NFL players are not unilaterally imposed. These rules are the product of careful collective bargaining between the NFL and the NFLPA. From that lens, the absence of social media policies and fraternization rules for players reflects the give-and-take of bargaining with a union, not gender-based discrimination by a league. In contrast, teams can be more demanding of non-unionized workers, including cheerleaders. The difference in treatment between players and cheerleaders, then, would arguably not be about gender but instead about bargaining position.
This rationale would be bolstered if the Saints subject male non-player employees to the same social media and fraternization polices that govern the cheerleaders. If only cheerleaders are subjected to such rules, the Saints better have a compelling business reason for why that is the case.
The EEOC investigation will take months and could lead to mediation
EEOC investigations take a while to play out—usually lasting 9–12 months. As mentioned above, an investigator will spend considerable time seeking evidence from the Saints, NFL and Davis and then reviewing it. He or she will also attempt to meet with various witnesses.
As the investigation proceeds, the investigator will likely encourage the parties to resolve their dispute through mediation. Mediation involves a hearing before a mediator, who proposes a resolution. One plausible resolution in this scenario would be Davis being financially compensated and the Saints and NFL pledging to revise workplace rules for cheerleaders and dancers.
Such a resolution would only become binding if all of the parties agree to it. In the event they agree, the charge would be dismissed. The Saints and NFL may find mediation to be an appealing option. Historically, the league has been leery of turning over internal documents in legal disputes (this has been especially apparent in the concussion litigation). If there are electronic records that might portray Saints and NFL officials as insensitive on issues of gender, it would be wise for the Saints and NFL to resolve the dispute with Davis before those records become public.
In the event mediation does not resolve the dispute, the investigator would then consider whether there is reasonable cause to believe that discrimination has occurred. Such cause would depend on the investigator’s review of the evidence and witness statements.
Neither a finding of reasonable cause nor a finding of no reasonable cause would end the dispute.
A finding of reasonable cause would lead the investigator to request that Davis, the Saints and NFL partake in a process known as “conciliation.” Like mediation, conciliation is a vehicle for dispute resolution. The EEOC would hope that it produces a settlement. Assuming conciliation fails, the EEOC would then decide whether to sue the Saints and NFL for unlawful discrimination. If the EEOC opts not to sue, Davis would have 90 days to file her own lawsuit.
Alternatively, a finding of no reasonable cause would also give Davis 90 days to sue. If Davis sues, the litigation could take months or years.
SI will keep you updated on the Davis charge and other NFL cheerleader litigation.
Michael McCann, is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.