Archives

  • 2012
  • 2013
  • 2014
  • 2015
    • Jan
    • Feb
    • Mar
    • Apr
    • May
    • Jun
    • Jul
    • Aug
    • Sep
    • Oct
    • Nov
    • Dec
  • 2016
    • Jan
    • Feb
    • Mar
    • Apr
    • May
    • Jun
    • Jul
    • Aug
    • Sep
    • Oct
    • Nov
    • Dec
  • 2017
    • Jan
    • Feb
    • Mar
    • Apr
    • May
    • Jun
    • Jul
    • Aug
    • Sep
    • Oct
    • Nov
    • Dec

Northwestern University Football Players Can Unionize

By [Sunday, March 30th, 2014]

Read the National Labor Relations Board decision here. Read an analysis of the decision, and its impact on the future of college sports here.

After the Whistle Blows: Criminal Liability in Sports Law

By [Tuesday, March 25th, 2014]

Colorado Avalanche v Boston BruinsOn December 7, 2013, Shawn Thornton of the Boston Bruins sucker punched Brooks Orpik of the Pittsburgh PenguinsThe result is that the National Hockey League (NHL) gave Thornton a 15-game suspension for the hit. Will a prosecutor press charges?  Probably not.  The media fully covers when athletes get charged with crimes like domestic violence, rape and murder.  But they do not always pay attention to excessive violence in sports, because that is not a crime.  Excessive violence includes hits that are unrelated to the game and hits that are outside the scope of the game, and they should be crimes.

Athletes should be subject to the criminal justice system, not just for criminal behavior off the field (rape, murder, dog fighting); rather prosecutors should be able to bring charges against athletes who are criminally violent on the field.  Prosecutors should not be able to bring charges for any and every hit, as they should not interfere with the game.  Instead, they should have guidelines to follow in order to press these charges, such as the proposed Sports Violence Act of 1980.  The point of the Act was to protect athletes from excessive violence in the game, and provide prosecutors with guidelines to exercise their discretion in bringing criminal charges against game-time conduct, to ensure even-handed enforcement of the criminal laws.  Without these guidelines, prosecutors who press charges for game-time conduct might be criticized for interfering with the game or the leagues’ own discipline.

But the Act never passed, and the result is an even greater disparity in treatment of game-time versus off-field acts of aggression.  Currently, an otherwise criminal act in hockey results in a mere 2- or 5-minute penalty, while athletes who commit similar acts outside the game risk convicted of a crime and incarceration.  For example, former footballer, Alonzo Spellman, served 1 year in prison for simple assault when a similar act on the field would have been met with at most a flag and a fine.  Former baseball player, Milton Bradley spent almost 3 years in prison for assault with a deadly weapon, when stabbing someone with his spikes during a game would at most have resulted in him being ejected.

Aside from the lack of guidelines for bringing charges against athletes, another problem with applying criminal law to sports is that athletes consent to the expected behavior in the game and assume the risks that are inherent in the game they are playing.  However, they should not be expected to assume the risk and consent to hits and injuries that are not inherent in the game.  When an athlete acts beyond the scope of the game, whether it is swinging a hockey stick at a player’s head, tackling someone after the play is over or tackling someone who is totally separate from the play, that athletes should be open to criminal liability.

Athletes are often considered role models for our youth.  In fact, Kadence Otto, in an article from the Journal of Legal Aspects of Sport, writes that “[s]port sociologists have noted that sport is a microcosm of society; namely, the behavior exhibited by athletes is reflective of the behavior exhibited by those in society in general.” People look up to athletes as people they would like to emulate, so when athletes commit any crimes, on-field or off-field, they should be punished, as anyone else is, to show that this is not proper behavior.  People use sports to help them decide how to treat others, how to conduct themselves, and even when illegal conduct is okay if it gains them undue advantages.  For some reason though, we ignore the criminality of something when it happens on the field.  While under the protection of their uniforms, we pay no mind to athletes’ otherwise criminal acts.  It then becomes okay for a person to act beyond the scope of the rules of the game as long as they are within the confines of the game.  Jeffrey Standen in Taking Sports Seriously: Law and Sports in Contemporary American Culture, notes that “The philosophy behind criminal law is based on society’s need to be free from harmful conduct.”  While “society” is not usually in harms direct way during a sporting event, one could argue it is indirectly in harm when children look up to their role models.  Society can also be directly harmed when on-field violence escalates, and makes its way into the stands, especially in basketball, where brawls have broken out.

We should not expect athletes to act like people they are not just because they are role models.  The role they are modeling, though, is professional athlete.  According to Standen, “Athletes display the athletic virtues:  diligence, perseverance, the value of training, fair play and sportsmanship, grace under pressure, and the pursuit of excellence.  The best of our athletes exhibit these virtues abundantly, in full public display.”  We should, however, expect them to be treated the same way as everyone else.  Just as anyone else who commits a crime at work should be charged with that crime, so should athletes.  Says Standen, “We can’t fairly ask our sports stars to be especially kind or honest, but we can ask them to exhibit good sportsmanship and a commitment to fair play.”  When they fail, we should be able to fairly expect them to pay for their actions, just as the people looking up to them have to do.

Should NFL Players Push Back Against League’s Social Media Rules?

By [Wednesday, December 11th, 2013]

BY NEIL M. WILLNER, NYLS ’14

Since the beginning of social media, NFL athletes have found a way to get in trouble.  Whether it’s Shady McCoy tweeting about his baby-mama-drama, or Chad Ochocinco (or Johnson, or Ochocinco-Johnson?) tweeting from the field, athletes cannot seem to figure out what is appropriate.  The NFL fines athletes tens of thousands of dollars in an effort to deter behavior “detrimental to the integrity of and public confidence in the National Football League.” But do athletes have any legal recourse against league rules restricting their social media activity? The National Labor Relations Board (NLRB) might answer in the affirmative if leagues fine athletes for posting comments about working conditions or wages.

chadochocincoappologizetwitterSince 2010, the NLRB has been policing employers’ social media policies to ensure its compliance with Section 7 of the National Labor Relations Action (NLRA). Under Section 7 of the NLRA, employees have the right to “self-organize, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Employers run afoul of Section 7 if they: (1) punish an employee for participating in a protected activity, or (2) maintain a social media policy restricting an employee’s Section 7 rights. Protected activity includes criticizing your employer on Facebook.  Similarly, social media policies that illegally restrict an employee’s Section 7 rights include rules “prohibiting employees from electronically posting statements that damage the company…or damage any person’s reputation.” In other words, the NLRB interprets Section 7 to extend to employees’ rights to engage with and disparage their employers on social media.

Missing from the NLRB’s social media decisions, however,  is any assessment of major sports league  discipline of players’ social media transgressions. Clearly, the NLRA does not protect every Facebook post or Tweet; the statute protects only labor organizing activity that is concerted, i.e., activity on behalf of all employees to improve working conditions. On what seems like a daily basis, athletes are running afoul of their respective leagues’ social media policies.  Granted, some infractions are not protected under Section 7 because they don’t implicate labor organizing or concerted activity, while other tweets defy all bounds of human decency and equally don’t deserve protection.

But other athletes, like Antonio Cromartie, tweet about their employment.  In 2009, when Cromartie played in San Diego, the Chargers fined him for a tweet complaining about the quality of food at training camp. Via Twitter, Cromartie said “Man we have 2 have the most nasty food of any team.  Damn can we upgrade 4 str8 years the same dish maybe that’s y we can’t w[in] the SB we need.” Although Cromartie never filed a complaint, he could have argued that he was punished for engaging in protected Section 7 activity because his tweet criticized a working condition – meals at training camp.  If Cromartie’s comments represented the general sentiment of his teammates and were not made solely on his own behalf, his activity would be concerted. Thus, his activity could be considered concerted activity because he sought to improve working conditions – better food at training camp.

Similarly, in the beginning of the 2012 NFL season, after replacement refs made a bad call and blew the game for the Green Bay Packers, many players, including T.J. Lang lashed out on Twitter, criticizing the NFL and replacement refs.     Even though the NFL ultimately decided to forgo fining the Packers, T.J. Lang tweeted about working conditions, specifically, the inexperienced replacement refs. His activity was most likely protected because he expressed the general sentiment of his teammates.  Thus, if the NFL did fine T.J. Lang, he would be able to file a complaint with the NLRB about the NFL restricting his protected Section 7 activity.

vick facebooThus, even though the NFL’s Personal Conduct Policy requires players to “avoid conduct detrimental to the integrity of and public confidence in the National Football League,” arguably the policy is unenforceable to the extent  players interpret it to prohibit Section 7 activities. The test determining whether rules of employment restrict Section 7 rights was articulated by the NLRB in Lutheran Heritage Village:  “whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights…  If the rule explicitly restricts Section 7 rights, it is unlawful.  If it does not, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

In other words, even if a social media policy does not explicitly restrict Section 7 rights, the NLRB can find it unlawful if employees could reasonably construe the language to prohibit Section 7 activity.  For example, in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the NLRB held part of a dealership’s employment policy violated Section 7.  The unlawful policy stated: “Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, police and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”  The Board found the policy unlawful because a reasonable employee could construe it as prohibiting Section 7 activity, such as discussing working conditions.

The exceedingly broad application of the Lutheran Heritage Village test should worry many employers, including the NFL.  Even if employee policies don’t facially restrict Section 7 rights, and even if policies are designed to promote workplace courtesy, they can still be unlawful.

The NFL’s social media policy prohibits players, coaches, and other personnel from using social networking sites on game day, 90 minutes before kickoff until after the “post-game locker room is open to the media and players have first fulfilled their obligation to be available to the news media who are at the game.” Because the policy prohibits any social media activity  during that time frame,  a reasonable employee (e.g., a “reasonable” player) could construe the policy as stopping him from complaining about employment-related conditions, like the referees.  If, for example, T.J. Lang tweeted about the referees before fulfilling his post-game duties, the NFL could have levied a fine under their social media policy. If Lang fought the fine, he could question the lawfulness of the NFL’s social media policy.  Just as in Karl Knauz Motors, Inc., employees could construe the NFL’s policy as restricting their Section 7 rights.

Granted, an employer has an interest in controlling their employees’ time during working hours and can thus restrict social media use in the office.  But, the NFL is not a typical “office,” and what exactly is the duration of the players’ workday – 90 minutes before the game through all post-game media obligations? Or, strictly on-field activity? What about practice?  The NFL’s policy does not prohibit tweeting 90 minutes before practice, nor does it prohibit tweeting during practice.  Aren’t daily practices just as much part of an athlete’s job as the game itself?  (Allen Iverson need not answer).  Because the athletes do not have standard working hours, any blanket ban on social media activity, like the NFL’s policy might reasonably be interpreted to restrict athletes’ Section 7 rights.

Thus, take note the next time the NFL levies a fine for a social media infraction.  If the player is engaging in concerted labor activity, he just may be protected.

The Aaron Hernandez-Patriots Contract Dispute: Waived, Voided, and Branded a Criminal

By [Tuesday, December 3rd, 2013]

aaron hernandezBY MICHELLE TORRES, NYLS ’14

In August of 2012 the New England Patriots negotiated a handsome five-year $40 million contract extension with the tight end Aaron Hernandez to play through the 2018 season. Fast-forward and both parties are unexpectedly in a dispute. The breakup began shortly after the June 2013 arrest of Hernandez for the murder of Odin Lloyd. The Patriots waived the tight end within a half hour of the arrest.

There is no dispute that the Patriots were entitled to use the NFL waiver system, described below, as a form of contractual relief from employing the indicted criminal. However, the Patriots announced they would void all future payments after examining their legal rights under the NFL collective bargaining agreement (CBA). The NFL Players Association (NFLPA) disagrees with the team’s decision to void such payments and filed grievances to make the Pats cough up the remaining amounts. The Patriots are denying payment on the basis that Hernandez forfeited future guarantees when he engaged in conduct detrimental to the best interest of the league. Hernandez will contend he is contractually entitled to the guaranteed money, and the contract lacked forfeiture language with respect to these amounts. Furthermore, if the Pats’ goal was to recover past payments or block future ones, they shouldn’t have waived Hernandez, but kept him under contract. Hernandez pled “not guilty” to six charges, including murder and gun possession charges and is being held without bail. He is due back in court on the unlucky Friday, the 13th of December.

The Patriots legally waived  Hernandez from employment under CBA Article 29’s procedure on waivers of player contracts.  The waiver is a labor-management practice that gives other clubs the opportunity to claim a waived player and his contract from the releasing team. A player can be waived for any reason and neither the player nor the new club suffer penalty or require compensation from the releasing team. However, if the player is unclaimed through the waiver system then he becomes a free agent. The releasing team is relieved from continuing employment and paying unguaranteed salaries to the free agent and may have to make the remaining (unpaid) guaranteed payments under the contract.  According to the CBA, Hernandez’s contract was subject to waiver because he is shy of a four-year tenure within the league. It came to no surprise when Hernandez cleared the waiver system, going unclaimed by the other 31 NFL teams and becoming a free agent. The waiver gave the Patriots the right to refuse continuation of employment and the right to refuse payment of unguaranteed salaries. But, the Patriots remain on the hook for payment of guaranteed money, unless they can cite to specific clauses in the contract and/or the CBA that justifies  doing otherwise.

Payment of guaranteed money is subject to the CBA, the NFL Standard Player Contract, and player-specific addendums. The standard player contract is a collectively-bargained contract that, other than yearly base salaries, contains structured and unalterable terms applicable to every player. In addition, each contract contains an addendum negotiated between the player’s agent and the team, which  covers guaranteed money, bonuses, incentives, and forfeiture. Base salary is money the player earns for playing during the season and does not require actual participation in a game. A workout bonus is earned for participating in a negotiated percentage of off-season workouts. A signing bonus is earned for signing with the team. It is typically paid in one lump sum to the player, but for salary cap purposes, teams prorate the signing bonus over the life of the contract. If a player is cut, the remaining portion of the signing bonus accelerates to that year. Guaranteed portions of the base salary, workout bonus, and signing bonus are protected from skill, injury, and cap terminations under the standard player contract. In other words, if Hernandez’s skill level decreased, if he suffered serious injury, or if the Patriots simply needed salary cap space, they could waive him but would still have to remit all guaranteed payments.

With respect to waivers for any other reason, the CBA requires the parties to negotiate the “Voiding of Guarantees”–this contractual forfeiture language in the addendum dictates guarantee obligations.  NFL contracts usually contain “failure to perform,” “failure to practice,” and “failure to report” clauses. The practical effect of these clauses protects teams from player suspensions or other legal woes, giving the team the right to void guaranteed payment under these circumstances. Ian Rapoport of the NFL Network reports that Hernandez’s contract lacks language that forfeits guaranteed base salary and signing bonuses in the event of the player’s default. The only forfeiture clause in Hernandez’s contract   apparently covers just his workout bonuses.  Arguably, this means Hernandez may be entitled to guaranteed payments even if he’s incarcerated.

Accordingly, the NFLPA dutifully filed grievances on behalf of Hernandez seeking payment of:

  1. $1.323 million in guaranteed 2013 salary;
  2. $1.137 million in guaranteed 2014 salary;
  3. $82,000 for guaranteed 2013 workout bonus;
  4. $500,000 for guaranteed 2014 workout bonus; and
  5. $3.25 million installment from his signing bonus.

The NFLPA believes the team wrongfully voided the portion of Hernandez’s 2013 salary that became guaranteed and due on March 17, 2013, months before police found Lloyd’s body near Hernandez’s home. The 2014 salary, although due after Hernandez’s arrest, is guaranteed without forfeiture language. Henandez earned the 2013 workout bonus when he successfully completed at least 90 percent of the offseason workouts from April to June, 2013. The 2014 workout bonus is guaranteed, and although subject to forfeiture per the contract, the Patriots waived him before he could breach the contract in the 2014 year. Lastly, Hernandez argues he earned the deferred signing bonus the second he signed the extension.

The Patriots nonetheless assert that the CBA gives them the right to void Hernandez’s guaranteed payments.  A Pats executive told Ben Violin of the Boston Globe that the contract “was guaranteed for skill and injury. It wasn’t guaranteed for personal conduct that cast the club in a negative light. We know the CBA. We are well within our rights.” In other words, the Pats believe the guarantees disappear because they cut Hernandez under Paragraph 11 of the Standard Player Contract, which allows termination when the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.”

Hernandez’s grievances raise several novel issues. First, when a player’s contract omits forfeiture language for guaranteed payments, does conduct-based termination nonetheless allow the team to void the guarantees, and if so, which ones? Section 9 of the CBA on “Forfeiture of Salary” expressly allows teams to void contracts and recoup bonus money in the case where a player commits a “forfeitable breach” due to incarceration. However, the Patriots waived Hernandez before his incarceration caused him to miss any football-related activities. Had Hernandez been under contract and unable to play because he was in jail, or suspended by the League, the Pats could have easily recouped the previously paid bonus money and voided any remaining payments. Although it is understandable that the Patriots wanted to distance themselves from Hernandez, their disregard of CBA procedure may well have financial consequences.

It’s also important to note that Section 9 is new to the 2011 CBA, in  recognition of the prior CBA’s failure to adequately protect teams from paying incarcerated players. The Michael Vick and Plaxico Burress incidents paved the way for this development. The  Hernandez situation may influence the League to seek further protection under the CBA when a player is waived for an arrest relating to personal conduct reasonably judged by Club to adversely affect or reflect on Club. The NFLPA should also seek clarification as to how the League’s “conduct detrimental” disciplinary standard interacts with CBA conduct provisions.

The Pats may also find grounds to forfeit and recoup bonus money in yet another provision in Hernandez’s contract. The contract contained a representation that Hernandez knew of no then-existing circumstances that would prevent his continuing availability throughout the contract. He is now being investigated for committing or participating in a double murder in July 2012, before he signed the contract. If Hernandez was involved in the July 2012 murder of Danny Abreu and Safiro Furtado, then he made a misrepresentation and breached the contract. The Patriots’ obligations with respect to the signing bonus may have to await a determination of Hernandez’s role, if any, in the double murder.

While some question the NFLPA’s advocacy on behalf of Hernandez,  the NFLPA said in a statement to USA TODAY Sports, “On behalf of all players, it is our responsibility to protect the rights in the collective bargaining agreement. We are not tone-deaf to what the allegations are in this case, but for the benefit of all players, there are important precedents here we must protect.” The NFLPA must pursue these grievances for players regardless of the accusations, in order to promote player trust and confidence in the union.  Meanwhile the NFLPA understands it faces a volume of criticisms for attempting to secure millions of dollars for an accused murderer. According to analyst Samer Ismail, the Hernandez drama may encourage the NFLPA to “lead teams to take harder stances in future contract negotiations with players regarding legal issues. For example, a ruling in Hernandez’s favor could easily lead to less guaranteed money for such players and more salary assigned to roster bonuses per game.”

And what about this murder rap? The details are long and complicated. Hernandez was indicted in August 2013 by a grand jury for the murder of Odin Lloyd. The prosecution’s biggest hurdle is the lack of a star witness and murder weapon. From the NFL’s perspective, it may be well-served by continued incarceration of Hernandez after all the negative media buzz involving the fallen star. Multiple murder charges, gun trafficking operations with other NFL players, and consistent drug use are just a few reasons Hernandez’s conduct may be detrimental to the best interest of football.

The NFL announced in a statement that if Hernandez “enters into a player contract prior to the resolution of the charges pending against him, the contract will not be approved or take effect until Commissioner Roger Goodell holds a hearing. The purpose of the hearing would be to determine whether Hernandez should be suspended or face other action prior to the charges being resolved.” Considering the severity of the charges piling up against Hernandez, any NFL suspension will likely be of the permanent variety. Even if Hernandez is found not guilty of all of charged offenses, and those on his legal backburner, the NFL response could be similar to the $250,000 fine imposed on Ray Lewis. Lewis also faced murder charges, and ultimately pled guilty to a misdemeanor for obstruction of justice. The NFL’s cited the negative stereotype of the admitted conduct as the basis for the fine.

Legal experts in the eye-opening Rolling Stone article on Aaron Hernandez assert, “In these cases, juries think that reasonable doubt means no doubt at all.”  If Hernandez is acquitted, the Patriots may still try to deny him millions of dollars, but the NFL can’t deny an innocent man a jersey.

NFL Cheerleaders: Not all Ra-Ra-Shish-Boom-Bah

By [Monday, November 25th, 2013]

Colin Ronan, NYLS student and advocate for cheerleader rights, with two members of the NY Jets Flight Crew

Colin Ronan, NYLS student and advocate for cheerleader rights, with two members of the NY Jets Flight Crew

BY COLIN RONAN, NYLS ’15

Cheerleading is an important part of American culture and the overall NFL entertainment product. NFL cheerleading has a colorful 50-year history dating back to the 1954 Baltimore Colts, the first NFL team to employ professional cheerleaders. With 32 total NFL teams, 26 have cheerleading squads. Cheerleaders entertain fans, motivate NFL players, support charitable causes, and add glitz and glamour to a sport that is otherwise known for its ruthless and brutish nature. Cheerleaders are featured prominently in NFL advertising and game-day television coverage, especially leading in and out of every commercial break. However, NFL teams across the country routinely underpay cheerleaders, despite seemingly recognizing their valuable contribution to the NFL’s entertainment product and fan relationships. Many NFL teams pay the members of their cheerleading squads poorly, while requiring incredible time commitments, and subjecting them to restrictive rules and regulations. Unlike NFL players, NFL cheerleaders do not have a collective bargaining unit to negotiate their compensation and working conditions as a unified group.

NFL cheerleaders have significant demands placed on their time for what is routinely referred to as a part-time job. For example the San Diego Chargers cheerleaders state outright that “being a Charger Girls member is a part-time job. You should at least hold a part-time job or attend college full-time.” These women endure rigorous tryouts with multiple rounds in which they are required to pay the team an audition fee for the privilege of subjecting themselves to scrutiny. For example, the Jets Flight Crew has its prospective cheerleaders brave four rounds of auditions.  Across the NFL, cheer team members are required to attend multiple unpaid weekly practices, training and boot camps, private appearances, photo shoots, and charity events in addition to weekly NFL games. Texans cheerleaders have to attend three rehearsals per week, and agree to a time commitment the team estimates at nine hours a week of rehearsal during the off-season and 16 hours a week during the season. The Minnesota Vikings cheerleaders “average over 400 appearances a year at charity events, community events, Vikings Children’s Fund events, corporate events, media events, travel appearances, calendar sales promotions, etc.” Each Vikings cheerleader is required to participate in a minimum of two charity events per month.  The Dallas Cowboy cheerleaders, perhaps one of the most famous cheerleading squads in the world, are required to attend two to five mandatory practices per week. On game days, the time commitment of an NFL cheerleader can range anywhere from seven to ten hours, not counting the time spent primping and prepping in advance of national television appearances, and hours spent in the gym sculpting their bodies to fit into unforgiving team uniforms. Baltimore Ravens cheerleaders are required to be on site five hours before kickoff.

Despite cheerleaders’ significant commitment and hard work in producing a product that grosses over $9 billion dollars annually, cheerleaders are paid on average about $75 a game, while at the same time, NFL players and coaches enjoy multi-million dollar contracts. The NFL minimum player salary for a rookie in 2013 is $405,000.00, and the salary for a returning 2013 Patriots cheerleader is the state minimum wage, $8.00 an hour. Dallas Cowboy cheerleaders, who are better paid amongst their peers, earn $150 a game. The disparity is staggering. Although comparing the salary of NFL cheerleaders to those of NFL players may seem like comparing apples and oranges, they are both talent that makes up the NFL entertainment product. Although cheerleaders’ contribution to NFL is peripheral and cannot be said to be on par with the players or coaches, it is comparable to say an NFL team mascot. NFL mascots earn salaries ranging from $23,000.00 to $65,000.00 a year including health benefits. For additional comparison, consider that dancers performing in Broadway shows and musicals are paid more than $1,500 a week based on minimum wage agreements negotiated by the Actor’s Equity Association, the union representing Broadway performers.

Why cheerleaders are paid so little becomes even less clear considering the NFL and individual teams seem to recognize the important role that cheerleaders play in producing the overall entertainment product that is NFL football. The NFL head of communications David Tossell told CNN, “cheerleaders are part of American football culture from youth leagues to the NFL and are part of the game day experience for our fans.” NFL teams, like the Carolina Panthers and the Jacksonville Jaguars, routinely refer to their cheerleaders as “invaluable” members of their organizations.  The Indianapolis Colts organization describes its cheerleaders as “ambassadors” of their organization. Generally, NFL teams view cheerleading as a hobby or part-time job in order to justify the low wage. In fact many teams unabashedly flaunt the perks of being an NFL cheerleader to recruit new talent. For example, in response to the frequently asked question: what do cheerleaders get paid? The Minnesota Vikings response sounds like a sales pitch:

Besides receiving two season tickets, free game parking, travel opportunities, sponsorships for FREE hair-cuts and coloring, FREE brow wax/shaping, FREE tanning services, FREE gym memberships, FREE make-up kits, FREE medical spa treatments, professional photo sessions, team clothing and apparel, and much MORE ….. team members are also paid for their time on game day, at many appearances, for travel/show tours, sales events and MORE! It works out to be a pretty great part-time job! (No emphasis added).

NFL teams understand that cheerleaders represent them in the communities that make up each team’s fan base, and accordingly, NFL teams hold cheerleaders to high professional and moral standards. As part of their employment, NFL cheerleaders are required to sign employment agreements and agree to abide by strict team rules and regulations. In Wampler v. Indianapolis Colts, a covenant in the Indianapolis Colts Cheerleader Agreement announces the high moral and ethical standard to which NFL cheerleaders are held:

Cheerleader agrees not to commit any act that will or may create notoriety, bring Cheerleader into public disrepute, or reflect adversely on Club or its sponsors. Cheerleader understands that she will serve as a public representative of the Club from time to time and that it is important to this employment relationship that she be viewed in a positive manner. Cheerleader agrees to behave in accordance with socially acceptable mores and conventions.

NFL teams profit from their cheerleading squads without leaving any room for cheerleaders to profit personally. For example the Oakland Raiders based eligibility for being a Raiderette in part on the cheerleader’s exclusivity. The Raiders cheerleader team policy flatly states: “You may not cheer for The Oakland Raiders and another professional or college team.”  The Dallas Cowboy cheerleaders earn the organization over $1 million each year through personal appearances, merchandising, cheerleading camps, and licensing agreements. The Cowboys charge upwards of $200 an hour per cheerleader for public relations, charity, and performance events. In addition, cheerleaders generally are required to sign publicity releases that eliminates any possibility of them earning money from their role as a cheerleader. The Baltimore Ravens publicity release states cheerleaders must “expressly release and waive any demand, action, claim, license, royalty, or any other form of payment the undersigned…may have based on claims…relating to any use by the Ravens of the undersigned’s name, likeness or appearance. The St. Louis Rams cheerleading publicity release grants the team and unrestricted right to use the undersigned’s name, likeness, or appearance in any “form, content or medium in order to promote or market the Rams.”

Cheerleaders should rebuke this unfairness and strongly consider organizing to form a labor group from which they can assert leverage against NFL teams to increase their compensation for their valuable contribution to the NFL entertainment product. NFL cheerleaders are eligible to unionize under the National Labor Relations Act (“NLRA”) if they can establish an employment relationship with their respective NFL teams. However, if cheerleaders are categorized as independent contractors, they are excluded from coverage under the NLRA. The Internal Revenue Service points to several factors to determine whether a worker is an independent contractor or an employee including: (1) behavioral control: whether the business has a right to direct or control how the work is done through instructions, training, or other means; (2) financial control: whether the business has a right to direct or control the financial and business aspects of the worker’s job; and (3) the type of relationship, which relates to how the workers and the business owner perceive their relationship. (See TOR’s coverage of this issue in the context of pro golfers and the PGA Tour’s ban on anchored putters.)

There are aspects of NFL cheerleading that point to an employment relationship, and contrarily to an independent contractor relationship. Supporting an employer-employee relationship is that cheerleaders are closely controlled, supervised, and managed by NFL teams. Most auditioning cheerleaders must be at least 18 years old and have a high school diploma or GED. The NFL team management sets cheerleaders’ schedules, routines, and rules and regulations. Cheerleaders are also provided uniforms, dress codes, and guidance regarding their appearance.  On the other hand, supporting an independent contractor finding is that cheerleaders are paid a flat fee per game, not salaries, and do not receive health benefits. In addition, cheerleaders do not enjoy continuous employment from year to year, but are forced to audition for NFL squads each season. However, if a team’s cheerleaders collectively perceived their relationship with their team as one of employment, the analysis may sway in favor of finding an employer-employee relationship.

Assuming NFL cheerleaders were found to be employees of NFL teams and therefore eligible to unionize, there are two ways in which they could form a league-wide NFL cheerleading union. The first is by getting at least 30 percent of NFL cheerleaders to sign cards or a petition saying they want a union. If the 30 percent threshold is met, the National Labor Relation Board (“NLRB”) will conduct an election. If a majority of voters opt for a union, the NLRB will certify the union as the collective bargaining representative for the class of employees. The second way NFL cheerleaders may form a union under the NLRA is by having each NFL team or possibly the NFL itself voluntarily recognize a union based on the support of a majority of NFL cheerleaders. However, this is unlikely to happen because NFL teams would then be obligated to bargain over cheerleader terms and conditions of employment, which would likely require them to pay cheerleaders higher salaries and grant additional benefits. Challenges to the creation of an NFL cheerleader union include the transient nature of the work; in many cases NFL cheerleading is a job that women do not make a career out of, which reduces their motivation to push for unionization. In addition, forming a union often requires public support to force the hand of the employer to improve working conditions; in the case of NFL cheerleaders, the public is at best split on whether they perceive NFL cheerleading as part of American culture or gratuitous sexism. Nevertheless, unionizing is an option that cheerleaders could employ to heighten their leverage with NFL teams and negotiate better terms of employment for themselves.

In an industry that grosses more money than the individual gross domestic products of more than 60 countries, it is hard to justify the poor compensation of NFL cheerleaders. NFL cheerleaders should earn a wage that is reflective of their contribution to their communities, the NFL entertainment product, and American culture as a whole. NFL teams should step up and treat these women like the ambassadors, leaders, and role models that teams require them to be.