Blog #21: NFL Cheerleaders and Wage Dispute

By Doug Silverstein

The NFL is big business for owners, players, and sponsors. However, NFL cheerleaders who work each game day often see very little of that business. In fact, many NFL cheerleaders do not even make the minimum wage.[1] Within the last year, several NFL cheerleader squads have pushed their teams to raise their wages.[2] The Buffalo Bills are one team in particular that have argued that their cheerleaders are not employees but independent contractors.[3] The main issue for the Buffalo Bills cheerleaders, nicknamed the Buffalo Jills (“Jills”), is whether the Jills should be considered employees and, therefore, paid the minimum wage.[4]

Even though the Buffalo Bills believe that they are not the employers of the Jills, the team maintained significant control over the members of the Jills.[5] The Jills were required to attend every Buffalo Bills preseason, regular season, and postseason football game.[6] The Jills were also required to attend two mandatory practice sessions each week, and any fittings, rehearsals, photo sessions, and meetings.[7] In addition to the amount of time the Jills had to spend working for the team, the team instituted ridiculous requirements for each cheerleader regarding their physical appearance. For example, each Jill during the season was subjected to a physical evaluation where team representatives tested the Jills bodies for “jiggling.”[8] During the test, a team representative would scrutinize each cheerleader’s stomach, arms, legs, hips, and buttocks while she did jumping jacks.[9] If a cheerleader’s body “jiggled” too much, then she could be penalized or potentially would not be allowed to perform at an upcoming game.[10] Also, the Jills were subject to various etiquette rules when they attended sponsorship events on behalf of the Bills, such as how to eat bread and eat soup as well as how to tip waiters.[11] The Jills also had various personal hygiene rules they were supposed to follow, including how to wash “intimate areas” and how often to change tampons.[12] Given the vast array of requirements that come with being a member of the Jills, and because the Jills were not paid for practices, games, and sponsorship appearances, the Jills should be considered employees of the Buffalo Bills and not independent contractors.[13]

In March 2014, the Department of Labor completed an investigation into the Oakland Raiders and the treatment of their cheerleaders, the Raiderettes.[14] Similar to the Jills, the Raiderettes were not paid the minimum wage while cheering for the Oakland Raiders even though the Raiderettes were subject to similar working conditions as the Jills.[15]Unfortunately, the Department of Labor determined that the Oakland Raiders were exempt from paying the Raiderettes the minimum wage under section 213(a)(3) of the FLSA.[16] Section 213(a)(3) provides an exemption to the federal minimum wage laws for any seasonal employee employed by an establishment, which is an amusement or recreational establishment.[17] Therefore, with respect to the Jills, because of the FLSA exemption, even if the Jills were able to show that they are full time employees, the Buffalo Bills may not have to pay them the federal minimum wage.[18]

Despite the Department of Labor’s ruling, there may be some hope for the Buffalo Jills. Over the past month, the Raiderettes and the cheerleaders for the Tampa Bay Buccaneers reached settlements with their respective clubs for over two million in back pay for their cheerleaders.[19] Furthermore, both of these teams have agreed to pay their cheerleaders minimum wage and to reimburse them for their out-of-pocket expenses while cheering.[20] Now that other NFL teams are starting to recognize the need for change in how they treat cheerleaders, the Buffalo Bills can follow suit and begin paying their cheerleaders minimum wage for all hours worked and not just game days.

[1] See Tierney Sneed, String of Cheerleader Lawsuits the Next Headache for the NFL, U.S. News, (Apr. 25, 2014),http://www.usnews.com/news/articles/2014/04/25/buffalo-bills-suspend-cheerleading-squad-after-lawsuit-third-of-its-kind (noting that many cheerleaders around the NFL are paid less than the minimum wage).

[2] Eric Morath, Cheerleaders vs. NFL Teams: A Fair Wage Fight, Wall Street Journal (Sep. 5, 2014, 6:49 PM),http://www.wsj.com/articles/cheerleaders-vs-nfl-teams-a-fair-wage-fight-1409939356.

[3] See id.

[4] See Complaint at ¶ 27, Jaclyn S. et al. v. Buffalo Bills, Inc. (W.D.N.Y. 2014) (explaining that the Jills were misclassified as independent contractors) [hereinafter “Complaint”], available at https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=i0tcm6_PLUS_Hml0bcLxf3FxTew==.

[5] See id. at ¶ 43 (pointing out that each cheerleader for the Jills spent approximately 840 hours per year working as a Jill and receiving almost no compensation).

[6] See id. at ¶ 35 (detailing the amount of time each Jill had to spend working for the team).

[7] See id.

[8] See id. at ¶ 62 (discussing how if a member of the Jills did not meet the Bills physical standards in some instances were penalized and not allowed to perform in games).

[9] See id. (noting how the members of the Jills’ bodies were scrutinized while they did jumping jacks).

[10] See id. (discussing how Jills were initially given warnings if they did not meet the requsite physical standards).

[11] See id. at ¶ 66 (noting how much control the Bills had over Jills at personal events).

[12] See id.

[13] See id. at ¶ 57A (pointing out that Jills had to pay out-of-pocket for their uniforms and uniform accessories); see also Team statement on the Buffalo Jills, (May 14, 2014) BuffaloBills.comhttp://www.buffalobills.com/news/article-1/Team-statement-on-the-Buffalo-Jills/a393dad6-7937-47cf-9447-bd79c40fb798 (outlining Bills organization’s statement that Jills are not Bills employees).

[14] See Tierney Sneed, String of Cheerleader Lawsuits the Next Headache for the NFL, U.S. News, (Apr. 25, 2014),http://www.usnews.com/news/articles/2014/04/25/buffalo-bills-suspend-cheerleading-squad-after-lawsuit-third-of-its-kind (noting the vast amount of cheerleader lawsuits against NFL Teams).

[15] See id. (noting that the Raiderettes did not receive the minimum wage while working for the Oakland Raiders).

[16] See id. (noting that the Department of Labor considers the Raiderettes to be seasonal workers and therefore, they are not subject to minimum wage laws).

[17] 29 U.S.C. § 213(a)(3)(A).

[18] See id. (comparing the Raiderettes to the Bills but also noting that state laws in certain state laws maintain stricter standards on the distinction between who qualifies as a seasonal worker).

[19] See Billy Haisley, Tampa Bay Bucs Cheerleaders Win $825K Lawsuit Settlement Against Team, Deadspin, (Mar. 6, 2015),http://deadspin.com/tampa-bay-bucs-cheerleaders-win-825k-settlement-agains-1689973787?utm_campaign=socialflow_deadspin_twitter&utm_source=deadspin_twitter&utm_medium=socialflow# (discussing how much each former cheerleader will receive from the settlement).

[20] See Robin Acarian, Cheerleaders’ wage-theft lawsuit to cost Oakland Raiders $1.25 Million, LA Times, (Sep. 4, 2014),http://www.latimes.com/local/abcarian/la-me-ra-raiders-settle-cheerleader-lawsuit-20140904-column.html (noting that the Oakland Raiders now pay their cheerleaders fair wages); see also Joseph Hanna,Tampa Bay Buccaneers Settle with Cheerleaders for 825k, Sports and Entertainment Law Insider, (Mar 9. 2015),http://sportslawinsider.com/tampa-bay-buccaneers-settle-with-cheerleaders-for-825k/ (discussing that since May 2014 the cheerleaders have received at least minimum wage).