NFL Cheerleaders’ Pay Collusion Lawsuit Spiked

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By Jon Steingart

An NFL cheerleader who said the league and its teams collude to suppress cheerleaders’ pay had her lawsuit dismissed ( K.K. v. NFL Enterprises, LLC , N.D. Cal., No. 3:17-cv-00496, 5/25/17 ).

The lawsuit challenged cheerleader pay for roughly two dozen National Football League teams.

Kelsey K., a former member of the San Francisco 49ers Gold Rush Girls dance squad, said the league suppressed pay by requiring teams to submit employment contracts to the league for approval. Teams colluded to keep pay down by agreeing not to poach other teams’ cheerleaders, she said.

These arguments don’t allege a conspiracy because they describe ordinary business practices, Judge William Alsup of the U.S. District Court for the Northern District of California said in a May 25 ruling. The contract approval rules could just as easily be in place to protect the cheerleaders, he said. Moreover, there’s no contention teams would want to poach cheerleaders if there weren’t a no-poaching rule, he said.

Allegations Undercut No-Poaching Charge

The cheerleaders undercut their Sherman Act antitrust argument by contending they were told they were easily replaceable, Alsup said. There would be no need for the teams to try to poach from one another when they could easily recruit from other sources, he said.

Further, at this early stage of litigation, only Kelsey K.'s experience matters because the lawsuit hasn’t yet been certified as a class action, Alsup said. “Generalized accusations of wrongdoing against cheerleaders as a whole do not suffice,” he wrote.

Kelsey K. alleged facts relating to cheerleaders in general, but regarding herself, she only described her dance training and dates of employment as a Gold Rush Girl. These facts don’t suggest she was injured by the putative conspiracy, Alsup said.

The lawsuit might be plausible under a state antitrust law, Alsup said. The California Supreme Court has held that the NFL was entitled to an exemption from the state Cartwright Act with respect to its rules for football players. Alsup granted the cheerleaders an opportunity to amend their complaint so the court could analyze whether the reasoning that applied in the players’ case would also apply for the cheerleaders.

Whether that exemption also applies to the cheerleaders’ antitrust lawsuit is something the court needs more factual allegations to analyze, Alsup said.

A representative for the NFL, which was named as a defendant with the teams, declined to comment May 26. A representative for the 49ers didn’t respond to Bloomberg BNA’s request for comment.

Drexel Bradshaw, a lawyer with Bradshaw & Associates P.C. in San Francisco who represents the proposed class, wasn’t available to comment May 26. Timothy O’Brien with the firm also represents the proposed class.

Covington & Burling LLP attorneys Sonya D. Winner and Joanne Sum-Ping in San Francisco and Derek Ludwin in Washington, D.C., represented the NFL and the teams, except the Oakland Raiders. Kenneth Hausman and David Reis with Arnold & Porter Kaye Scholer LLP in San Francisco represented the Raiders.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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