NFL Cheerleaders Could Test Joint Employer Liability Rule

By and | May 11, 2018

The NFL’s cheerleader problems are back.

The New York Times reported Wednesday that cheerleaders for the Washington franchise were made to pose topless for season ticket holders in Costa Rica in 2013. Earlier this year, a former New Orleans Saints cheerleader sued the team, saying she was improperly fired for posting a photo of herself online that the team deemed too revealing. These incidents follow lawsuits from several years ago from cheerleaders claiming wage theft over contracts that failed to pay the minimum wage.

The National Football League has consistently sought to keep these controversies at arm’s length, pointing to its longstanding policy of leaving teams alone when it comes to cheerleaders. “The league does not decide anything concerning cheerleaders or their employment with particular teams,” NFL spokesman Brian McCarthy said.

That policy is “a huge mistake,” said Paul Secunda, a labor law expert at Marquette University who has been following the cheerleader cases. “The league has a responsibility, if not to set exact terms and conditions of employment, then at least to set minimum terms.” By failing to do so, said Secunda, the league is enabling — and could find itself liable for — bad conduct.

In its statement, the NFL said it “will work with our clubs in sharing best practices and employment-related processes that will support club cheerleading squads within an appropriate and supportive workplace.” It did not respond to a question about whether those recommendations would be binding.

Teams manage their cheerleaders in different ways. Washington runs its cheerleading squad in-house. Other teams contract out the work. Six teams don’t have cheerleaders at all. The NFL prefers not to interfere in these decisions or other game-day operations such as concessions and video displays.

“It gets into a level of micromanaging that may not be bested suited for an association, which the NFL is,” said Marc Ganis, founder of the consulting firm Sportscorp Ltd. and a confidant of league commissioner Roger Goodell and many owners. The policy also serves to shield the league from legal liabilities, leaving franchises to defend themselves against cheerleader complaints.

A rapidly changing area of labor law may make the NFL more vulnerable. “There’s a legal argument to be made under the joint-employer doctrine, that both the NFL and the teams are responsible for these situations,” said Secunda. The league’s position, he said, resembles that of McDonald’s, which is in a long-running battle to protect itself from workers claiming wrongdoing by its franchisees.

Under President Barack Obama, the National Labor Relations Board made it easier for a company to be treated as a joint employer, and the agency’s prosecutors brought a major case against McDonald’s over alleged violations of franchise store workers’ rights. Last year, Shelly Sun, then-chair of the International Franchise Association, described the level of concern among companies about the joint employer issue as “similar to 30 minutes before the planes hit the World Trade Center.”

Under President Donald Trump, the earlier guidance on the broader understanding of who’s a joint employer was scrapped, and labor board prosecutors have moved to settle the McDonald’s case with a deal that doesn’t state the company is a joint employer.

But the earlier NLRB precedent, hated by business groups, is still in force, and the NFL and its cheerleaders could soon join the tussle.

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