From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
By Porter Wells
The New Orleans Saints football players and cheerleaders are held to markedly different rules for fraternization and social media even though they work for the same employer, according to a charge filed March 26 with a federal anti-discrimination agency.
Saints cheerleaders aren’t allowed to follow coaches or players on social media, exchange messages with them, or even be seen in the same nightclub or restaurant as a coach or player, according to the squad’s written rules. They also aren’t allowed to post pictures to their personal accounts where they’re holding alcohol or in which they are nude or semi-nude.
Saints players aren’t bound by the same rules, former New Orleans Saints cheerleader Jacalyn Bailey Davis says in her Equal Employment Opportunity Commission charge.
The rules for the women are in place to “protect” them from players and fans, according to documents provided to Bloomberg Law.
EEOC charges aren’t publicly available, but Bloomberg Law has obtained a copy of Davis’ charge and attachments. Davis is also starting a formal arbitration process with the Saints and sending a letter to National Football League Commissioner Roger Goodell.
Davis says the different rules for Saints players and “Saintsations” cheerleaders by their common employer is sex discrimination in violation of Title VII of the 1964 Civil Rights Act. The Saintsations’ rules “are highly and patently offensive and discriminatory holding the female cheerleaders in a stereotypical role of needing protection from supposed male predators,” the charge says.
The Saints are confident their “policies and workplace rules will withstand legal scrutiny,” Gregory Rouchelle told Bloomberg Law. He’s with Adams and Reese in New Orleans, the firm serving as counsel for the Saints. The NFL didn’t immediately respond to Bloomberg Law’s request for comment.
An employer may treat classes of employees differently if the discrimination relates to a bona fide occupational qualification. But the U.S. Supreme Court has said that disparate treatment of women must be viewed as “inherently suspect” as it has long been “rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”
‘Very Poor’ Judgment
Davis was a member of the Saintsations squad for three years before being fired for violating Saintsations rules. Rumors circulated that she had been messaging players and that she had been seen at a party with a player, according to the charge.
When confronted by Pat McKinney, Saints executive director of human resources, and Ashley Deaton, senior director of entertainment teams, Davis denied ever responding to player messages or being at the party. Deaton reportedly told Davis that she could question the players, who have “no reason to lie and nothing to lose.”
Saints players aren’t prohibited from messaging cheerleaders, but a cheerleader can be fired if she doesn’t report the messages to Saintsations staff.
A few days after the meeting, Davis posted a professional photograph of herself to her private Instagram in a lace-covered one-piece. Deaton sent Davis a text message saying she had shown “very poor” judgment to post a picture like that considering the “rumors going around” about Davis.
Deaton reminded the whole Saintsations squad of the social media rules by email, two of which Bloomberg Law has obtained. “Although you are not necessarily posting as a Saintsation,” Deaton told the dancers Jan. 10, “how you represent yourself on your private pages, and in your private life, reflects upon this entire team and our organization.”
The Saints terminated Davis on Jan. 23 for “failure to comply with the Saintsations rules and regulations.”
‘Supposed Male Predators’
“In an effort to protect you from player advances and activity that can be deemed suspicious it is in your best interest that as long as you are a Saintsation you do not follow any player or coaches at all,” Deaton wrote to the Saintsations squad Jan. 10. “Any such activity will likely give them the impression that you are available to their advances,” she said in the email sent to the Saintsations.
Saintsations get messages from players all the time, Davis said. She isn’t sure the players know the cheerleaders aren’t allowed to respond.
The dancers are expected to screenshot the messages and send the images to the team director, according to Deaton’s emails and the written Saintsations Rules and Regulations obtained by Bloomberg Law.
The players aren’t penalized for messaging Saintsations, Davis told Bloomberg Law. But a cheerleader has to provide proof to her bosses that she hasn’t encouraged the attention by responding.
“I’m not afraid of them. I don’t feel like they’re predators chasing after us,” Davis said. “What I was afraid of was losing my job.”
Playing by Different Rules
“If you’ve been in the same VIP section in a club, at the same dinner table, or even had a conversation with one of them that lingered beyond a professional ‘hello’ or ‘great game,’ you are guilty of fraternizing and can be terminated,” Deaton told the Saintsations in an email Jan. 3.
“Dating or personal relationships” between employees and players is prohibited by the Saints’ Employee Handbook, obtained by Bloomberg Law. No further specifics are given. The NFL Personal Conduct Policy and Player Contract doesn’t mention specific dating or fraternization rules.
Content a Saints cheerleader posts on her personal page “is expected to be tasteful, respectful, and classy,” Deaton wrote to the squad Jan. 10. “This experience should be a catalyst for your growth. Don’t allow it to feed your ego and make you a superficial, attention-seeking, annoying person to be around. This attention is fleeting and if you get caught up in the scene you can lose it all in an instant.”
The Saintsations rules say that the director has discretion for enforcement. But “the written rules are so patently discriminatory that we don’t need to get to whether the discretion has been abused,” Davis’ attorney, Sara Blackwell of the Blackwell Firm in Sarasota, Fla., told Bloomberg Law.
The requirements are so restrictive that they can affect a dancer’s career after she leaves the Saintsations, Davis said. Being a Saintsation is a part-time job with a four-year cap. But it can be the most visible moment on which an aspiring professional dancer can build her brand.
The Saintsations are referred to only by their first names on the Saints website. They are supposed to have all their social media pages private. “You should not be easy to find,” Deaton wrote to the squad Jan. 10.
“We have fans who have a favorite cheerleader, just like they have a favorite player,” Davis said. “But we’re supposed to be this faceless, nameless bunch of cheerleaders that no one can pick out.”
Saints players are referred to by their first and last names on the Saints roster and are allowed to use their last names on their social media accounts. They aren’t barred from holding themselves out as a member of the Saints team, which Saintsations aren’t allowed to do, according to the Saintsations regulations.
“They say they want it to propel you, but then they put you in a box,” Davis said. “I would go to dance camps and dance studios to work with young girls and I couldn’t even say I was a Saints cheerleader.”
Meanwhile, players can pursue side benefits like sponsorships “because they are Saints players,” Blackwell said. “The Saintsations can’t do any of that.”
Other NFL cheerleading squads seem to follow similar rules, Davis says. Her charge was brought on her behalf and other cheerleaders not yet named.
“I hope other women come forward with their stories,” Blackwell told Bloomberg Law. “I encourage other athletes and women who are subject to rules that aren’t fair to come forward and speak up.”
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)