NFL Cheerleaders Face Down League With Wage Discrimination Litigation

On January 31st, five days before the New England Patriots’ late-game Super Bowl win over the Atlanta Falcons, a former San Francisco 49ers cheerleader filed a federal lawsuit against the National Football League. Identified only as an anonymous “Jane Doe,” she named each individual NFL team, as well as the league itself, claiming the NFL conspired “with the purpose of reducing market competition among female athletes and thus ensuring female athlete earnings remained far below fair market value.” According to the filing, the cheerleaders received only a flat fee per game, and were not paid at all for performances at mandatory events or extensive rehearsal time.

This isn’t the first time the NFL has been forced to confront issue of cheerleader wages. In recent years, the league has been plagued by a wave of litigation from cheerleaders accusing the organization of unfair payment practices. Despite the fact that the NFL generates millions of dollars every year, cheerleaders have had to fight to earn even a minimum wage.

For contrast, Atlanta Falcons quarterback Matt Ryan was paid $20.75 million in 2016, while Patriots quarterback Tom Brady made $20.5 million. Commissioner Roger Goodell took home $32 million in 2015.

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This trend of wage-based lawsuits began in 2014, when a cheerleader for the Oakland Raiders filed a wage-theft lawsuit against the team, claiming that she was paid less than $5 per hour after factoring in rehearsals and obligatory event appearances. The suit was brought under the Fair Labor Standards Act (FLSA), which requires certain types of non-exempt employers to pay minimum wage and overtime wages to non-exempt employees. The suit was eventually settled for $1.25 million, and the California legislature subsequently passed a law that specifically classified professional cheerleaders and dancers as non-exempt employees under state labor laws.

That lawsuit kicked off a series of similar lawsuits by cheerleaders for NFL teams including the New York Jets, Buffalo Bills, Cincinnati Bengals and Tampa Bay Buccaneers. In 2014, the Oakland Raiders began paying cheerleaders $9 an hour, California’s minimum wage at that time. The Buccaneers cheerleaders’ suit settled for a reported $825,000, while the Bengals reached a tentative settlement reported $255,000.

These lawsuits also had the effect of sparking a national conversation concerning the exploitation of women in sports. A Change.org petition aimed at convincing the NFL to pay its cheerleaders a living wage has obtained 157,807 supporters as of the time of this article. The petition states that many of these women are paid less than $1,000 per year, while a mascot may make as much as $65,000 yearly.

In wage cases such as these, plaintiffs have utilized several types of experts to address unfair pay and economic damages wages. Experts specializing in wage disputes can provide valuable knowledge in cases involving labor/employment law, financial management, lost wages and workers’ compensation, among many other issues pertaining to employment. For example, in Gianfrancisco v. Excelsior Youth Center, Inc., a Colorado district court determined that an expert for the employee plaintiff could testify about deficiencies in the employer’s compensation structure, and the need for the structure to prevent discrimination between men and women performing the same or similar jobs. These opinions were found to pertain to generally accepted human resource practices, and thus would assist the jury. In the ongoing fight for fair pay, NFL cheerleaders will undoubtedly need to continue to utilize the opinions of many expert witnesses.