By: Mary Meghan Balkin on 07/15/14
Photo credit: https://www.flickr.com/photos/domit/
National Football League (“NFL”) cheerleaders have been part of the professional football experience for years. The Buffalo Jills, the affectionately named cheerleading squad for the Buffalo Bills, joined the Bills “team” in 1967. Two decades later, in 1986, the Jills became its own separate entity.
On April 22, 2014, the relationship went sour when five former Buffalo Jills filed suit against the Buffalo Bills, Inc. and the Jills’ owners, Citadel Communications (“Citadel”) and Stejon Productions Corporation (“Stejon”). The women claim that the companies violated New York State employment laws and maintained a harassing work environment.[i]
The main issue is whether the Jills should be considered Buffalo Bills employees rather than independent contractors, and as such should be paid according to New York State wage laws.[ii] The claims asserted include not paying appropriate wages in a timely fashion and unjust enrichment of the Jills organization to the detriment of the cheerleaders.
Presently, the Bills hire the Jills organization to provide cheerleading services during football games, but are not involved in Jills management.[iii] Nonetheless, the Bills require the Jills to abide by the Buffalo Bills Code of Conduct and meet other requirements as an affiliated party and brand licensee.
The former Jills argue that Jills cheerleaders are part of the Bills organization.[iv] However, the Bills argue that the Jills organization is an independent service provider for the Buffalo Bills.[v] Rather, the Jills are voluntary participants in the Jills organization, rather than employees of the Bills.
The Jills’ lawsuit is one of a series of suits filed by cheerleading teams, including the Cincinnati Bengals’ “Ben-GALS,” the Oakland Raiders’ “Raiderettes,” and most recently the New York Jets’ “Flight Crew.”[vi] According to the lawsuit filed by Bengals cheerleader Alexa Brenneman, she worked over 300 hours for the Bengals during the 2013-2014 NFL season, but was paid only $855, approximately $2.85/hour.[vii] Current and former Raiderettes filed a similar lawsuit in January claiming that they were underpaid, making a salary of only $1,250 per season, less than $5/hour.[viii]
What is Really at Stake?
The Buffalo Jills seem to have the most to fight for. The Jills claim that the women commit about twenty hours per week to practices, appearances, and game day performances.[ix] The Jills’ contract further includes various rules of etiquette, which go to extremes such as describing proper feminine hygiene, and how to properly sip soup.[x]
Further, the Jills are responsible for maintaining very specific “physique requirements” including nails, hair, make-up, and physical fitness, without being reimbursed or compensated for their efforts.[xi] These requirements include “jiggle tests,” during which the cheerleaders do jumping jacks while their bodies are scrutinized for areas that jiggle, and a supervisor’s approval is required before a Jill may dye her hair. [xii]
In addition to demanding physical requirements, the Jills are not paid for games or practices, and have to make 20-35 appearances at community events each season, most of which are unpaid.[xiii] The Jills must purchase their own uniform at a cost of $650, and must purchase and re-sell Jills calendars. [xiv]
The Jills’ claim asserts that,
The Buffalo Bills were and are the main beneficiary of the Jills’ work, in that the team’s reputation was and is enhanced by the Jills’ gameday performances and by their work in the community. The Jills were and are bound by the Buffalo Bills Codes of Conduct and general standards. Furthermore, upon information and belief, the Bills’ organization worked closely with defendants Citadel Communications and Stejon Productions in the management of the Jills’ day-today[sic] activities. Lastly, the Bills were the actual owner of the Jills[xv].
Initially, it seems as though the Buffalo Bills are responsible for the Jills. In response, theBills have released one statement pointing out the inaccuracy of the allegations against the team.
As part of running a professional football team, the Bills organization retains a number of third party vendors to provide ancillary services on game days. These services include, among others, parking services, concessionaire services and cheerleading services.
For decades the Buffalo Jills trademark has been licensed to independent third parties who have assumed the responsibility for the selection, management, training, scheduling and compensation of the cheerleaders.[xvi]
The Huffington Post stated that “[t]he time and expense, as well as rules governing their personal lives, far exceed what [the Jills] signed on for.”[xvii] However, when the United States Department of Labor looked into the Oakland Raiders case, the Department determined that the Raiderettes were seasonal workers and therefore exempt from minimum wage laws.[xviii] This raises the question; what exactly did these cheerleaders sign up for?
The former Jills explain that the cheerleaders were “required” to sign contracts classifying them as independent contractors, and consequently agreed to intrusive guidelines governing their personal lives.[xix] However, what would be the consequence of not signing the contract? Not being able to participate in the organization, and nothing more.
As a purchaser of services, the Bills control some aspects of the Jills’ management. The Bills contracted with Citadel and Stejon, and specifically established arms-length relationships with these parties.[xx] The Bills own the Jills trademark; the team granted Citadel, and subsequently Stejon, a non-exclusive right to the Jills’ trademark. However, the Bills retained ownership of the Jills’ intellectual property.[xxi]
While standards such as “jiggle tests” and required hair-dying are not necessarily socially acceptable employment requirements today, the Jills knew exactly what they signed up for upon signing their contracts.[xxii] By agreeing to be part of the squad without sufficient pay, the cheerleaders “ratified the voluntary nature of their participation,” and never previously questioned their status as contractors rather than employees.[xxiii]
Furthermore, the agreements between the Bills, Citadel, and Stejon state that “selection, training, and compensation of all cheerleaders” is the responsibility of the license holders, and that the Bills are not responsible for any costs or management beyond approval of brand use.[xxiv]
If the Department of Labor’s finding that the Raideretts are seasonal workers holds true when applied to the Jills, it will not matter who is ultimately responsible for the Jills’ employment and payment, as the Jills would not be covered by state and federal labor laws. Otherwise, Citadel and Stejon—who employ the cheerleaders—will be responsible, not the Bills, who merely licenses to the Jills organization.
Considering the Bills’ reaction to the lawsuit, and the Jills’ suspension for this season, the Jills might lose regardless of the legal outcome. Even if the Jills have to paid as employees of the Bills per legal reasons, it is very possible that the Bills will choose to not keep the cheerleaders as employees, making the Buffalo Jills a thing of the past.
[i] See generally Complaint, Jaclyn S. et al. v. Buffalo Bills, Inc., et al. (W.D.N.Y. 2014) (asserting breach of New York State and federal labor laws in Jills management) [hereinafter “Complaint”] available at https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=i0tcm6_PLUS_Hml0bcLxf3FxTew== .
[ii] See id. at ¶ 26 (explaining that Jills were misclassified as independent contractors rather than employees).
[iii] SeeTeam statement on the Buffalo Jills, (May 14, 2014) BuffaloBills.com http://www.buffalobills.com/news/article-1/Team-statement-on-the-Buffalo-Jills/a393dad6-7937-47cf-9447-bd79c40fb798 (outlining Bills organization’s statement that Jills are not Bills employees).
[iv] SeeComplaint, supra notei at ¶ 25 (explaining Jills were forced to sign contracts misclassifying them as independent contractors).
[v] SeeTeam statement on the Buffalo Jills, (May 14, 2014) BuffaloBills.com http://www.buffalobills.com/news/article-1/Team-statement-on-the-Buffalo-Jills/a393dad6-7937-47cf-9447-bd79c40fb798(illustrating relationship between Bills and Jills).
[vi] See Bengals cheerleader files lawsuit against team, CBSSports.com, http://www.cbssports.com/nfl/eye-on-football/24441947/bengals-cheerleader-files-suit-against-the-team (Feb. 13, 2014 4:29 pm) (describing Bengals cheerleader lawsuit); Josh Katzowitz, Former member of Jets cheerleading squad files lawsuit against team, CBSSports.com, (May 6, 2014, 4:47 pm) http://www.cbssports.com/nfl/eye-on-football/24552819/former-member-of-jets-cheerleading-squad-files-lawsuit-against-team (reporting that member of Jets’ “Flight Crew” also filed suit).
[vii] See Bengals cheerleader files lawsuit against team, supra note vii. Minimum wage in Ohio is $7.85/hour. State of Ohio 2014 Minimum Wage, http://com.ohio.gov/documents/dico_2014Minimumwageposter.pdf (last visited Jul. 14, 2014).
[viii] Mike Singer, Raiderettes suing team, allege wage theft, unfair employment practices, CBSSports.com, (Jan. 22, 2014, 6:40 pm) http://www.cbssports.com/nfl/eye-on-football/24417294/raiderettes-suing-franchise-for-wage-theft-unfair-employment-practices. Minimum wage in California as of July 1, 2014 is $10.00/hour. Minimum Wage, State of California Department of Industrial Relations (last visited Jul. 14, 2014), http://www.dir.ca.gov/dlse/faq_minimumwage.htm.
[ix] SeeComplaint, supra note i at ¶ 26 (explaining that Jills are underpaid for hours worked).
[x] See id. at ¶ 66 (explaining rules that Jills must follow).
[xi] See id. at ¶ 57 (explaining broad range of requirements Jills must maintain).
[xii] SeeJohn Wawrow, Buffalo Bills Cheerleaders Halt Season After Lawsuit, Huffington Post, (Apr. 24, 2014), http://www.huffingtonpost.com/2014/04/24/buffalo-bills-cheerleader_n_5209277.html (reporting Bills’ decision to suspend Jills activities).
[xiii] SeeWawrow, supra note xii (describing time commitment of Jills).
[xiv] SeeComplaint, supra note i at ¶ 57(A).
[xv] See Complaint, supra note I at ¶ 17.
[xvi] SeeTeam statement on the Buffalo Jills, supra note 4.
[xvii] SeeWawrow, supra note xii (describing personal requirements Jills must meet).
[xviii] SeeTierney Sneed, String of Cheerleader Lawsuits the Next Headache for the NFL, U.S. News, (Apr. 25, 2014) http://www.usnews.com/news/articles/2014/04/25/buffalo-bills-suspend-cheerleading-squad-after-lawsuit-third-of-its-kind (explaining Department of Labor’s ruling that Raiderettes are seasonal workers and not subject to minimum wage laws).
[xix] SeeComplaint, supra note i at ¶ 27 (arguing that Jills are Bills employees due to Bills’ discretion over Jills’ management).
[xx] SeeMemorandum of Law in Support of Defendant Buffalo Bills, Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to CPLR 3211(a)(1) and/or CPLR(a)(7), Jaclyn S. et al v. Buffalo Bills, Inc.et al, (W.D.N.Y. 2014)https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=VmRLfJGqni8YtS98OHersQ== (explaining contractual relationship between Bills, Citadel, Stejon, and Jills).
[xxi] See id. at 4 (explaining nature of Bills’ oversight of Jills).
[xxii] SeeGary Busio, The Insane, demeaning life of an NFL cheerleader, New York Post, (Apr. 27, 2014) http://nypost.com/2014/04/27/my-life-as-a-buffalo-jill/ (describing “jiggle tests” and other standards set for Jills).
[xxiii] SeeStejon Productions Amended Answer with Cross-Claims, Jaclyn S. v. Buffalo Bills (W.D.N.Y. 2014), at 10 (filing by Stejon Productions disclaiming all liability and asserting that Bills misled Stejon in indicating that Jills are independent contractors, and cheerleaders are actually employees of Buffalo Bills).
[xxiv] See id. at 4-5 (explaining licensing agreement and relationship between defendant parties).