Timothy Liam EPSTEIN's Article entitled, "Cheerleaders' antitrust tactic less than rousing so far," was published by the Chicago Daily Law Bulletin

A group of former NFL cheerleaders filed a lawsuit against the league earlier this year alleging underpayment along with a conspiracy claim that the NFL prohibits the cheerleaders from seeking employment with other professional cheerleading teams and discussing their earnings with each other. Kelsey K. v. NFL Enterprises LLC, 2017 WL 2311312 (N.D. Cal. 2017).

On May 25, a federal judge ruled that lead plaintiff, Kelsey K., a former San Francisco 49ers Gold Rush Girl, failed to state a claim for conspiracy under state and federal antitrust laws.

The judge, U.S. District Judge William Alsup, gave the cheerleader until June 15 to file an amended complaint and denied her motion for discovery “until a plausible claim for relief is pled.”

This pleading standard, developed from the notorious Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal Supreme Court decisions in 2007 and 2009 respectively, allows district courts to dismiss a case early if it does not set out a “plausible” claim.

Twombly itself was an antitrust case in which the plaintiff’s complaint alleged no direct evidence of an agreement between telecommunications companies to stay out of each other’s markets.

Likewise, in this case, Alsup noted in the dismissal that he expects an antitrust claim to include more details, not just generalizations, which are necessary to show specifics like “who, did what, to whom, where and when.”

In order to survive a motion to dismiss, the complaint might need to include details of a conspiratorial meeting between the teams’ executives or statements from a former NFL employee with knowledge of an agreement to fix wages. If the plaintiff fails to amend her complaint with more details, and more evidence, it is very likely the suit will be dismissed with prejudice.

The plaintiff’s attorney, Drexel Bradshaw, said he has uncovered “significant facts” that he thinks will lead the judge to allow the lawsuit to proceed, but he will need to expound upon such facts in a revised complaint to survive dismissal under the Sherman Act and California’s Cartwright Act.

This lawsuit is among a spate of legal actions in recent years accusing NFL teams of failing to pay cheerleaders sufficiently and failing to provide them with an adequate work environment, but the antitrust angle is relatively novel.

We have seen numerous NFL cheerleading teams be successful in claims of wage and labor law violations. The Buffalo Bills, Tampa Bay Buccaneers, Oakland Raiders and New York Jets have all been sued by their cheerleading teams in the past few years. In the summer of 2015, both California and New York enacted legislation to classify cheerleaders as “employees” instead of independent contractors, ensuring that they will at least be entitled to minimum wage.

The Raiders cheerleaders settled in September 2014 for $1.25 million and the Buccaneers settled for a reported $820,000 just one year later.

The Buffalo Bills’ cheerleaders, the Buffalo Jills, have a long history of fighting for equal wages. In 1995, the cheerleaders won a suit against the Bills before the National Labor Relations Board and earned the right to be classified as “employees” after the NLRB determined the Bills exercised significant control over things like the cheerleaders’ schedules, uniforms and appearance.

Subsequently, the Jills formed the first professional cheerleaders’ union to bargain for better employee rights. Though the Bills originally suppressed the union by contracting out its cheerleading services, the Jills filed a class action in 2014 alleging they had been improperly classified as independent contractors. The court ruled in their favor in early 2016. Jaclyn S. v. Buffalo Bills Inc., 997 N.Y.S.2d 669 (2014).

However, unlike the previously successful cheerleader wage and labor lawsuits, the cheerleader in the current case asserts only claims for violations of antitrust law. Therefore, the plaintiff must plead factual allegations sufficient to show violations of antitrust law, including collusion, rather than just evidence of wage or payment violations. This may prove to be an insurmountable burden.

Though the complaint rests on assertions of parallel conduct, common in antitrust pleadings, courts have held that plaintiffs are required to prove “plus factors” to demonstrate the conduct resulted from collusive activity, rather than interdependent unilateral decisions in response to similar market conditions. Twombly, 127 S. Ct. at 1964.

The plaintiff in the Kelsey K. matter did submit per game wage rates for the Oakland Raiders, Tampa Bay Buccaneers and the Cincinnati Bengals — which ranged from $90 to $125 per game — as evidence of a conspiracy. However, those rates actually differ up to 25 percent. Further damning to the collusion claim is the fact that the Buffalo Bills did not pay their cheerleaders for some of the games at all.

Alsup also noted that Kelsey K. failed to show how she had been personally injured by the NFL’s conduct with the complaint omitting details about her personal experience with the 49ers. In fact, the judge stated in his order that even if it is true that the cheerleaders are treated in insulting or demeaning ways, for the purposes of an antitrust claim, the allegations are irrelevant.

The plaintiff in the Kelsey K. case clearly needs to enhance her pleadings to provide more concrete evidence of collusion in order to survive further dismissal.

Whether she will be able to do so remains to be seen. Precedent suggests that professional cheerleaders will have a much easier time proving wage and hour violations under labor law than asserting a theory of antitrust violations.

If, however, the lawsuit proves successful, it could subject the league to extensive monetary damages and penalties imposed by federal antitrust law.

Regardless of how the case turns, the suit certainly keeps the spotlight on the league and its treatment of cheerleaders, which may spur action independent of any court ruling.

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