NFL Cheerleaders Need a Union

Welcome back to the column from the legal podcast Mic Dicta breaking down the strangest and most interesting legal battles being waged in the US.

To understand how this culture has evolved, you need to understand how cheering works at lower levels. Many women, myself included, grow up cheering for the middle and high school football teams. The sheer amount of work, time, and money required to dance on the sidelines and during halftime at games seems mind-boggling to outsiders. The expensive private dance lessons, the costumes ordered for more than $100 the will be worn once and never again, the usurious competition fees—it all works in combination to inure women into accepting a barely compensated job that likely costs more to maintain than it pays.

Being a cheerleader for professional teams is a pricey endeavor. There are the obvious expenses: gym fees, hair styling, and spray tans. But there are many hidden costs to this lifestyle: endless dance classes (the director of the Washington cheerleaders reportedly also owns a dance company where the cheerleaders are expected to take classes), stylists at photoshoots, and transportation to mandatory team events. Moreover, cheerleaders can be fined for inane violations, like having nails that don’t conform with dress code. Even trying out for a team costs money. Vying for a spot on the Falcons cheer squad, for example, sets you back $35. Want to be a Seattle Seahawks “Sea Gal?” That’ll be a cool $20, cash only.

It’s pretty hard to argue that NFL teams are too strapped for money to pay their cheerleaders a fair wage. NFL revenues have reached record highs, going from $4.28 billion in 2001 to $13.16 billion in 2016. More callous observers of this dynamic could brush off the wage concerns by saying that for most women, being an NFL cheerleader should be considered a hobby, and therefore not paid commensurate to an actual job. It seems like NFL cheer teams would very much like you to think that, since they stress the interesting and varied careers of their cheerleaders.

However, cheerleaders aren’t just expected to dance on the sidelines for their teams. They are required to attend mandatory events held on boosters’ private property, like on a boat where alcohol flows and fans judge “twerking contests.” Even more troublingly, several NFL cheerleaders for Washington have accused their director of sending them out as “escorts” for male sponsors while on a trip in Costa Rica. The women, of course, were not compensated for their time.

You may have heard about the recent surge in lawsuits by former cheerleaders for fair pay and against harassment in the wake of the #MeToo movement. Unfortunately, the piecemeal nature of discrimination and equal pay lawsuits mean that the results are often unequal. One suit seems poised to be settled for $1 and a meeting with NFL Commissioner Roger Goodell; another cheerleader lawsuit that accused the Oakland Raiders of wage theft was settled for $1.25 million in 2014. These chaotic outcomes are the result of “impact litigation,” which are lawsuits, usually class actions, specifically brought to effect broad societal change by altering laws and influencing public opinion.

Impact litigation has a big caveat, however. Lawsuits can only help the people who file them, and unless every cheerleader in the NFL wants to lawyer up, it's hard to imagine much is going to change. It is not apparent that any talks with Goodell will be anything other than a photo op.

The statutes that the cheerleaders can sue under are also a problem. The Fair Labor Standards Act establishes a federal minimum wage of $7.25 per hour and requires employers to pay overtime for all hours worked over 40 in a workweek. The act does not define “work” or “workweek,” but courts have defined it fairly broadly. The term “work” mean physical or mental exertion that is controlled by the employer and is completed for the employer’s benefit. The definition, crucially for NFL cheerleaders, can include time spent getting ready for work.

If NFL cheerleaders can demonstrate that they are covered employees (and therefore not exempt from the FLSA), NFL teams and possibly the NFL itself would likely have to compensate the cheerleaders with back pay and other damages, including attorneys’ fees. However, even if the cheerleaders are successful in demonstrating that they are employees, there is an exemption to the federal minimum wage under the FLSA which relieves any seasonal “amusement or recreational establishment” of the requirement to pay the minimum wage or overtime. In other words, this seasonal employee characterization allows employers to pay employees less than the federal minimum wage.

Moreover, while cheerleaders have fairly convincing claims under state laws, the NFL teams have the benefit of nearly unlimited resources to fight those claims, as well as the ability to buy off or simply fire dissenters. Teams also have the advantage of a tightly controlled majority of cheerleaders, many of whom are rightfully afraid of being fired if they fight back against a system they know to be unfair.

If lawsuits aren’t the best way to ensure equal pay, what’s a girl to do? Well, you know what they say: There’s power in a union. In 1995, the Buffalo Bills’ cheerleaders, the Buffalo Jills (lol) were the first NFL cheerleaders to form a union. In 2014, five former Jills sued the team, alleging they were not being paid for hours they worked, and management responded by literally getting rid of the cheer team. No other cheerleaders have attempted to form a union, but perhaps the answer isn’t individual cheer teams unionizing, but a league-wide union, which is the same model professional athletes have used to great success. The NBA player’s union, for instance, has won battles over everything from advocating for the mental health of their players to higher pay. One team’s cheerleaders is easy to ignore, but an entire league of cheerleaders can’t be shouted down.

Christina is an attorney in Chicago and embarrasses her mother online on Twitter.