Employees are entitled to prosecute a cause of action for failure to pay wages and other unfair employment practices. There are a variety of avenues to pursue such as in federal court citing the regulations promulgated by the National Labor Relations Board or state court citing statutes prohibiting in effect wage theft. A number of class actions have been filed against three NFL franchises by cheerleaders.
Specifically, the suit against the Oakland Raiders charges that the team withholds all pay from the Raiderettes until after the season is completed, does not pay for all hours worked and forces the cheerleaders to pay many of their own business expenses. The Raiderettes earn an annual salary of $1,250.00 which after calculating numbers of hours worked amounts to less than $5.00 per hour. The Complaint filed in state court alleges that the squad is subject to fines for bringing the wrong pom poms to practice, wearing the wrong outfit at rehearsals, not having a yoga mat, and failure to turn in biographies of themselves on time. The cheerleaders often incur their own personal expenses in traveling to media events and photo shoots.
More recently, five former Buffalo Jills (cheerleaders) filed a class action in New York Superior Court alleging lower than minimum wage earnings and other New York labor law violations. This resulted in entire squad being suspended as a third party promoter managing the squad is named in the lawsuit. The third lawsuit inovlves the Ben-Gals in Cincinnati alleging parallel claims.
The specific payment structure for cheerleaders is unique to each team as well as certain employment and hiring policies. The cheering squads actually according to Forbes in 2003 cited in the Ben-Gals lawsuit generate over one million dollars in additional revenue for the NFL in promotional, merchandising, and fundraising events. They are subject to restrictions on hair style, socializing online and romantically, and regular weigh ins. The majority of teams withhold payment of wages till after the end of the season violating state laws particularly in California.
The brightline issue to be determined is whether these cheeleaders are full time employees or are independent contractors. This distinction controls many of the more detailed labor laws that could apply. In California, the cheerleaders after being investigated by the department of labor were deemed to be seasonal employees and thus exempt from federal minimum wage laws. However, certain state laws maintain stricter standards on the distinction. Many of the employment agreements for squads across the league contain arbitration clauses where in the commissioner would serve as arbitrator. Many see the lawsuits as a greater statement about equal and fair employment standards and gender politics. It will be interesting to observe the Raider’s motion to enforce their arbitration agreement as California is known for overturning mandatory arbitration clauses. The cheerleaders are also alleging they were forced into signing contracts misclassifying them as independent contractors.
The courts will also have to determine whether certain activities such as promotional and fundraising events constitute “labor” as defined by certain labor laws. For example, if the organization, controls the work hours, tells the worker what to wear, and exercises a good amount of control over the worker, then it’s likely the person is considered an employee. Many cheerleaders use the opportunity to market themselves for additional opportunities such as modeling and acting.
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