Professional Cheerleaders Root for Increased Wages

Cheerleaders

Photo credit: https://www.flickr.com/photos/twosheffs/

by Macy Manolis*

Professional sports are a multibillion-dollar industry and growing annually.[1]  In light of this, it may come as a surprise that many professional cheerleaders in both the National Football League (N.F.L.) and the National Basketball Association (N.B.A.) are unhappy with their compensation, to say the least.[2]  Most recently, former Milwaukee Bucks cheerleader Lauren Herington sued the team, alleging failure to meet minimum federal and state wage requirements.[3]  Herington is not the first to take this type of action; rather, her suit follows a handful of others filed by women performing for a variety of NFL teams.[4]

Herington, in particular, claims that while on the team, her compensation translated to roughly three to five dollars per hour, depending on what the team required of her during a particular week.[5]  While a member, Herington and her fellow cheerleaders received flat fees for games, practices, and special appearances, as opposed to being compensated per hour of obligation.[6]  In addition, much of her wages went to beauty-related requirements not covered by the team, including uniform cleaning, tanning, false eyelashes, manicures, and hair appointments.[7]  Herington’s lawsuit was only filed last month, but the team has publicly stated it is willing to “fight the suit in court.”[8]  Although it may be months until the Bucks case reaches a resolution, other similar cases might prove illustrative as to its outcome.[9]

Last year, Lacey Thibodeaux filed a similar suit, which alleged eleven causes of action, all related to the Oakland Raiders’ failure to pay its cheerleaders reasonable wages and compensation for required business expenditures.[10]  Parties reached a $1.25 million dollar settlement, the terms of which included an hourly wage increase to nine dollars per hour, compensation for overtime, two-week pay-periods as opposed to payment at the end of the season, ten-minute breaks during games, and compensation for mileage and business expenses.[11]  Further, the team would agree to “no longer illegally deduct wages for minor rule infractions like showing up a few minutes late to rehearsal, wearing the wrong color nail polish[,] or failing to bring the correct color pom poms to practice.”[12]  Thibodeaux’s suit gave rise to others filed by cheerleaders belonging to “the Buffalo Bills, the Jets, the Tampa Bay Buccaneers, and the Cincinnati Bengals”—all of which have settled aside from the Bills case.[13]

Contractors vs. Employees: Will Proposed Legislation Remedy the Problem?

The question of whether cheerleaders qualify as employees or contractors is essential to the wage issue.[14]  Professional sports teams have chosen to classify their cheerleaders as independent contractors as opposed to employees.[15]  As such, these teams claim they are not legally required to pay cheerleaders in accordance with state and federal wage laws.[16]  Although state laws differ, federal wages are governed by the Fair Labor Standards Act (FLSA), which sets out “minimum wage, overtime pay, record-keeping and youth employment standards affecting employees ‘engaged in commerce’ in the private sector and in federal, state, and local governments,”[17] defines “employee” as “any individual employed by an employer.”[18]  Further, the U.S. Department of Labor explains that “[e]mployees of businesses that are engaged in interstate commerce or instrumentalities of interstate commerce are also generally covered [by the FLSA].”[19]  Assuming cheerleaders can show they are employees under FLSA, they would need to overcome an exemption for seasonal employees, “which relieves any seasonal ‘amusement or recreational establishment’ of the obligation to pay the minimum wage or overtime” if that employer “operate[s] for [no] more than seven months in any calendar year.”[20]  The answer to this question with regard to cheerleaders is unclear, as teams are choosing to settle, rather than litigate.[21]

In response, state lawmakers have taken action to define cheerleaders’ position.[22]  The Raider’s case, for example, prompted Lorena Gonzalez, a member of the California State Assembly, to introduce Bill No. 202, which Governor Brown signed into law this past summer.[23]  This law, now Section 2754 of the California Labor Code, “require[s] a cheerleader who is utilized by a California-based professional sports team during its exhibitions, events, or games to be deemed an employee.”[24]  Further, the “bill . . . require[s] the professional sports team to ensure that the cheerleader is classified as an employee.”[25]  As employees, cheerleaders receive “paid sick leave, family leave, and workers’ compensation” in addition to minimum wage.[26]

Similarly, Nily Rozic, a member of the New York State Assembly, introduced a bill in reaction to the Buffalo Bills lawsuit.[27]  If signed into law, this bill would establish the “cheerleaders fair pay act,” with the purpose of “provid[ing] cheerleaders employed by a professional sports team with rights, protections, and benefits.”[28]  Rozic’s efforts, however, extend beyond her state.[29]  She has teamed up with legislators from multiple states in an effort to encourage policy change.[30]

Will the NFL and NBA Make Policy Changes?

 Both the NFL and the NBA are “umbrella organization[s]” whose members operate as individual businesses.[31]  This, however, does not mean the organizations have no power to act.[32]  Some commentators have suggested that the organization does have “soft power” to fix the problem by instructing member teams to at least pay affiliated individuals minimum wage.[33]  In fact, the NFL did recently release a statement urging teams “to follow state and federal employment laws.”[34]  Other commentators explain the problem could be remedied more quickly if instead of urging teams to comply, the organizations enact their own policies.[35]  As of yet, neither organization has taken such steps.[36]


 

* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University School of Law

[1] See Curtis Eichelberger, Sports Revenue to Reach $67.7 Billion by 2017, PwC Report Says, Bloomburg Business (Nov. 13, 2013), http://www.bloomberg.com/news/articles/2013-11-13/sports-revenue-to-reach-67-7-billion-by-2017-pwc-report-says (reporting findings of PricewaterhouseCoopers LLP report projecting revenue of “North American sports industry will grow at a compounded rate of 4.8 percent to $67.7 billion by 2017”).

[2] See Emily Green, Cheerleaders’ Fair Wage Lawsuits Add To NFL’s Problems, NPR (Sept. 23, 2014), http://www.npr.org/2014/09/23/350946942/cheerleaders-fair-wage-lawsuits-add-to-nfls-problems (explaining that although sports are multibillion dollar industry, many cheerleaders do not receive minimum wage). Following recent complaints of players’ domestic violence, unfair cheerleader wages further tarnishes the NFL’s reputation with regard to the treatment of women.  See id.

[3] See Rebecca Ruiz, N.B.A. Cheerleaders’ New Rallying Cry: Better Pay, N.Y. Times (Oct. 25, 2015), http://www.nytimes.com/2015/10/26/sports/basketball/

cheerleaders-in-nba-make-case-for-better-pay.html?_r=1 (highlighting most recent class action suit with regard to professional cheerleader wages).

[4]  See id.  (noting Herington’s suit against the Milwaukee Bucks follows similar suits filed by cheerleaders belonging to the following teams: Oakland Raiders, Buffalo Bills, Jets, Tampa Bay Buccaneers, and the Cincinnati Bengals).

[5] See id.  The Milwaukee Bucks, like many other cheerleading teams, receive payment in the form of flat fees, not hourly rates.  See id.  Herington and her teammates earned $65 per game, $30 per practice, and $50 per special appearance. See id.

[6] See id.  When translating flat fees into an hourly wage, the wage fluctuates based on how many hours cheerleaders work.

[7] See id. (noting cheerleaders required to personally pay for many business related expenses).

[8] See id. (stating Milwaukee Bucks are not willing to admit to wrongdoing).

[9] See Robin Abcarian Cheerleaders’ Wage-Theft Lawsuit to Cost Oakland Raiders $1.25 Million, L.A. Times (Sept. 4, 2014), http://www.latimes.com/local/abcarian/la-me-ra-raiders-settle-cheerleader-lawsuit-20140904-column.html (reporting outcome of Raiderettes member’s class action suit against the Oakland Raiders).

[10] See id. (explaining terms of Oakland Raiders’ settlement with Raiderettes).  The causes of action alleged against the Oakland Raiders were as follows: failure to pay minimum wage, failure to pay wages in a timely manner, unlawful deduction from wages, failure to pay all overtimes earned for hours worked, failure to provide wage statements, unlawful prohibition on discussing wages, imposition of unlawful terms and conditions of employment, unlawful failure to reimburse employees for expenses, failure to provide meal breaks, breach of contract, and unlawful, unfair and fraudulent business practices. See generally Class Action Complaint, Lacey T. v. Oakland Raiders, No. RG14710815 (Cal. Super. Ct., Cnty. of Alameda filed Jan. 22, 2014), available at http://www.levyvinick.com/images/SKMBT_60014012209230.pdf (detailing causes of action alleged against defendant, Oakland Raiders).

[11] See Abcarain, supra note 9 (detailing Raiders’ obligations to cheerleaders post-settlement).

[12] See id.

[13] See Ruiz, supra note 3 (noting all lawsuits filed against various NFL teams settled except the Bills case). “The Buffalo Bills . . . stand out as the only . . . [sued team] that insists cheerleaders kick and dance in heat and arctic cold for zip.”  Michael Powell, Buffalo Bills Cheerleaders’ Routine: No Wages and No Respect, N.Y. Times (Dec. 10, 2014), http://www.nytimes.com/2014/12/11/sports/football/buffalo-bills-cheerleaders-fight-for-wages-and-respect.html (noting Bills lawsuit remains unresolved).  In light of the lawsuit, the Bills “disbanded” their cheerleading team for the season, noting they “appreciate[] [the] ‘ancillary service’ provided by ‘third party vendors,’” but are unhappy with its assertions “that ‘attempt to give the impression that [the Bills] employ[] cheerleaders.”  See id.

[14] See Adam Epstein, Attack of the Cheerleaders! Allegations of Violations of the FLSA on an Uncertain Landscape, 21 J.L. Bus. & Eth. 23, 26 (2015) (explaining whether cheerleaders are classified as employees or contractors is “fundamental to the [wage] analysis”).

[15] Marina Adshade & David Berri, Pay Cheerleaders What They’re Worth, Time (Mar. 25, 2015), http://time.com/3752957/nfl-football-cheerleaders-minimum-wage/ (advocating paying cheerleaders what they are worth in terms of revenue they earn for NFL).  Estimates show that “TV appearances of cheerleaders on game days alone are worth about $8.25 million to the NFL, or $317,000 per year for each team in the league.”  See id.  Additionally, cheerleaders contribute to total revenue “by promoting ticket sales and promoting the NFL brand.”  See id.

[16] See id.  Classifying cheerleaders as independent contractors, however, has not shielded teams from paying cheerleaders back wages when confronted with lawsuits.  See id.

[17] See Epstein supra 14, at 25 (citing 29 U.S.C. § 206(a)(1)(C) (minimum wage); 29 U.S.C. § 207 (maximum hours)) (explaining relevance of FLSA with regard to cheerleader wages).

[18] See id. (citing 29 U.S.C. § 203(e)(1)) (defining “employee”).

[19] See id. (alterations in original) (quoting Justing Fielkow, Putting Down the Pom-Poms: NFL Cheerleaders Fight for Minimum Wages, Sports Esquires (July 11, 2014), http:// thesportsesquires.com/2014/07/11/putting-down-the-pom-poms-nfl-cheerleaders-fight-for-minimum-wages/) (explaining what other employees are covered under FLSA); see also 29 U.S.C. § 203(e)(1) (defining “employee).

[20] See id. (second alteration in original) (citing 29 U.S.C. § 213(a)(3)(A)) (noting relevance of “seasonal employee” exception under FLSA).

[21] See id. at 27.  Although the issue has not been litigated, the Department of Labor independently investigated cheerleader wage claims, specifically the Oakland Raiders, and concluded “that the Oakland Raiders team members fall within the [seasonal employees] exemption . . .  and are therefore exempt from the FLSA.”  See id. (citing Fielkow, supra note 19).

[22] See Ruiz, supra note 3 (noting action taken by two state lawmakers aimed at protecting professional cheerleaders from wage fraud).

[23] See Assemb. B. No. 202, 2015-2016 Reg. Sess. (Cal. 2015) (text of bill proposed by California Legislator, Lorena Gonzalez, and approved by Governor on July 15, 2015).

[24] See id. (stating requirements of newly enacted California labor law).

[25] See id. (explaining new California labor law requires that professional cheerleaders are classified as employees).

[26] See Ruiz, supra note 3 (explaining that as employees, cheerleaders qualify for benefits reserved for employees).

[27] Assemb. B. No. 7830, 238th Leg. Sess., Reg. Sess. (N.Y. 2015) (text of bill proposed by N.Y. legislator, Nily Rozic on May 28, 2015, Amended September 28, 2015).

[28]  Grants Employee Protections Conferred by the Labor Law to Cheerleaders: N.Y. Committee Report on Assemb. B. No. 7830, 238th Leg. Sess. (N.Y. 2015) (describing New York law’s purpose of protecting employment status of professional cheerleaders).

 

[29] See Leah Messinger, Lawmakers Call on NFL to Give Cheerleaders a Fair Wage, The Guardian (Sept. 13, 2015), http://www.theguardian.com/sustainable-business/2015/sep/13/nfl-roger-goodell-cheerleaders-minimum-wage (noting Rozic’s efforts to change policy beyond her state).

[30] See id.  Rozic has reportedly “joined other legislators in Illinois, Ohio, Texas, Pennsylvania, and Maryland, among other states, to encourage the NFL to pay fair wages.”  Id.

[31] See Green, supra note 2 (explaining governing structure of NFL).

[32] See id. (noting although each NFL member-team is an independent business, the NFL as the governing body has power to influence policy).

[33] See id.  (noting comment by comment by N. Jeremi Duru, American University Professor of Sports Law, that NFL could influence policy by utilizing “soft power” and suggesting member-teams increase cheerleaders’ pay).

[34] See Christie Isidore, California Cheerleaders Win Right to Be Treated Like Regular Employees, CNN Money (July 17, 2015), http://money.cnn.com/2015/07/16/news/companies/california-cheerleader-law/ (noting NFL released statement encouraging teams to pay cheerleaders fair wages).

[35] See Messinger, supra note 29 (citing commentators who suggest NFL could do more than suggests teams pay cheerleaders fair wages).

[36] See id. (noting NFL has not made any policy changes to date); see Ruiz, supra note 3 (noting NBA has not made any policy changes to date either).