A shadow hangs over this year’s NFL Draft Day. On Wednesday, the day before the 2014 NFL Draft, a former cheerleader filed a lawsuit against the New York Jets, alleging the team had paid her significantly below minimum wage in violation of state and federal labor law. And on the day of the draft itself, members of the United States House of Representatives held a formal hearing on whether college athletes have the right to unionize.
Neither the lawsuit nor the hearing was an isolated occurrence. The Jets are the fourth team to get hit by a wage theft lawsuit from its cheerleading squad; over the course of the past four months, cheerleaders for the Oakland Raiders, the Cincinnati Bengals and the Buffalo Bills have also accused their employers of wage theft. The House hearing on student athlete unionization, meanwhile, was a response to the unfolding legal battle at Northwestern University over whether some of the school’s football players are employers who have the right to unionize.
Both the Northwestern University players and the former Jets cheerleader are submerged in legal battles which could permanently alter the business of football. Both cheerleaders and college players are now fighting to get themselves classified as employees, entitled to the legal rights enumerated under the National Labor Rights Act. And both have seen their effort to win those rights balloon into battles of national significance.
Sharon Stiller, partner and director of the Employment Law Practice at the firm Abrams Fensterman, compared the cheerleaders’ lawsuits to another wave of litigation which has bubbled up over the last couple of years: Lawsuits from unpaid interns who say they should have been compensated by their employers.
“I think it’s one of those situations, like the student interns that have been suing, where people are standing up and saying yeah, I’m an employee too,” she said.
The former Jets cheerleader, identified in court filings as “Krystal C.,” alleges that she was paid as little as $3.77 per hour during her time on the squad. Former Cincinnati Bengals cheerleader Alexa Brenneman says she earned about $2.85 per hour, and was subjected to strict rules regarding her weight and personal appearance. Similarly, the Buffalo Bills cheerleading lawsuit says that cheerleaders have to pass a “jiggle test” and receive instructions on how to properly wash their intimate areas.
Stiller predicted the accusations of wage theft wouldn’t stop with those four teams, saying, “I think these are not all the suits we’re going to see.”
The NFL did not reply to a request for comment.
As cheerleaders try to establish that they are employees and not independent contractors, student-athletes at Northwestern University are trying to get themselves classified as employees of the school so they can legally unionize. In March, a regional director for the National Labor Relations Board (NLRB), ruled that some Northwestern football players are employees of the school; the university appealed that decision, and the case will now be heard by the board itself.
Meanwhile, Congress has gotten involved. On Thursday, the House Committee on Education and the Workforce held a hearing titled “Big Labor on College Campses: Examining the Consequences of Unionizing Student Athletes.” Committee chair John Kline, R-Minn., set the tone for the proceedings in his opening statement when he bemoaned the regional director’s ruling as “a radical departure from long-standing policies.”
“We share the concerns of players that progress is too slow, but forming a union is not the answer; treating student athletes as something they are not is not the answer,” he said.
No student-athletes were present at the hearing to argue their case, but ranking Democrat Rep. George Miller, of California, was on hand to argue in favor of unionization.
“In the end, this is a classic labor dispute,” he said. “The NCAA empire is holding all the cards, making all the rules, and capturing all the profits. The hardest-working, most valuable components of this system – the payers – are left with little say or leverage, with no one blocking or tackling but themselves.”
One of those giving testimony at the hearing was Ken Starr, the attorney who led an investigation into Monica Lewinsky’s affair with President Bill Clinton. Starr, who is now the president and chancellor of Baylor University, argued against granting student-athletes the right to unionize.