The NFL cheerleader problem is back, and this time the league may not be able to resolve the issue as easily as it did the last time.
You may recall that several years ago cheerleaders from a number of teams, including the Oakland Raiders, Cincinnati Bengals, Tampa Bay Buccaneers and New York Jets, filed lawsuits claiming teams were violating wage and hour laws by failing to pay them minimum wage and overtime. The suits were resolved, with cheerleaders collecting thousands-of-dollars in back pay along with reimbursement for uniforms and transportation they were required to pay for out of their own pockets.
The current brouhaha isn’t over money but rather decency and common sense, namely, how cheerleaders are treated and controlled by their teams. According to The New York Times, a number of teams have “handbooks” which detail how cheerleaders should dress and act, not only in their official capacity but in their private lives as well. Cheerleaders have restrictions on where they eat, who they date and associate with, and what kind of nail polish and jewelry they wear.
Teams even try to limit their cheerleaders’ social media activity. When New Orleans Saints cheerleader Bailey Davis posted a picture of herself in a semi-revealing outfit on her private Instagram account, the team deemed it a violation of their handbook and fired her. Davis filed a complaint with the Equal Employment Opportunity Commission accusing the Saints of having two sets of rules – one for cheerleaders and another for players. She may be right.
The Saints handbook for cheerleaders contains an anti-fraternization policy that requires them to avoid contact with players, though players have no such restriction. Cheerleaders are told not to dine in the same restaurant as players. If they enter a restaurant and a player is already there, the cheerleader must leave. If a cheerleader is in a restaurant and a player arrives, she must leave.
The Dallas Cowboys popularized the concept of NFL cheerleaders in the 1960’s and other teams soon followed suit, subscribing to the philosophy that combining sex with football creates a better form of entertainment than an unadulterated version of the latter. Twenty-six of the NFL’s 32 teams employ cheerleaders, all of whom dress in skimpy attire and gyrate on the sidelines during games. Beyond the games, cheerleaders are expected to entertain season tickets holders, as several Washington Redskins cheerleaders did on a debaucherous trip to Costa Rica in 2013 when they posed topless before a group of ogling men.
The NFL has a hands-off policy when it comes to team cheerleaders. According to spokesman Brian McCarthy, “The league does not decide anything concerning cheerleaders or their employment with particular teams.” But that see-nothing, do-nothing approach may no longer be viable. New case law suggests if teams have legal liability for how they treat cheerleaders, the league may be liable as well.
Times change. What was once acceptable may no longer fly under the radar. Perhaps it’s time for NFL teams to stick to selling football and leave the sex to consenting adults.
Jordan Kobritz is a former attorney, CPA, Minor League Baseball team owner and current investor in MiLB teams. He is a professor in and chair of the Sport Management Department at SUNY Cortland and maintains the blog, sportsbeyondthelines.com. The opinions in this column are the author’s. Kobritz can be reached at email@example.com.