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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.

Ackerman Schools Women’s Hoops in NCAA White Paper

By [Wednesday, June 19th, 2013]

Val Ackerman nailed it in her NCAA white paper released yesterday offering a comprehensive assessment of intercollegiate women’s basketball.  Putting aside the details (and of course that’s where the devil is), she advocates rethinking the game from top to bottom:  playing rules, game presentation, season length and timing, post-season tournament logistics, player comportment, even off-court activities.  A key message is that what works for the men’s game doesn’t necessarily work for the women’s.  Schools, athletic departments, coaches, and all who promote the game need to think “outside the court.”

There’s no shame in tinkering with the game and all its details to improve the fan experience.  The most successful pro sports leagues undertake an off-season reality check every year to recalibrate the game for the benefit of the fans.  Look at the NFL’s perennial playing rules adjustments and improvements to the game-day stadium experience.  And contrast Major League Baseball’s lackadaisical enforcement of its own pace-of-play rules, allowing games to drag on for hours, undoubtedly a factor in the downward trend in baseball game attendance.

Just as importantly, Ackerman’s report highlights basketball’s preeminence as the top-ranked sport in terms of girls participation at the middle school and high school level, offering the greatest potential to fulfill Title IX’s promise at the college level. Perversely, however, Title IX’s guarantee of equal funding for women’s sports has fostered complacency at the college level, stifling innovation and reducing the urgency to market the game.  Indeed, one area where the report is somewhat thin is the lack of concrete recommendations for marketing to the youth demographic in a way that will generate spectator interest on top of playing interest.

There’s plenty of work for lawyers in here.  Implementing even a fraction of Ackerman’s proposals will require renegotiating tournament schedules, broadcast agreements, coaching contracts, and marketing relationships.  All and all, Ackerman has produced a solid blueprint for taking women’s hoops to the next level.