Cheerleader Fumbles With NFL Wage-Fixing Appeal

SAN FRANCISCO (CN) – The Ninth Circuit won’t revive a former cheerleader’s proposed antitrust class action accusing the National Football League of suppressing cheerleader wages.

The court’s three-judge panel unanimously affirmed a federal judge’s 2017 order throwing out the suit, finding former San Francisco 49ers cheerleader Kelsey K. failed to state antitrust and conspiracy claims under the Sherman Act and California’s Cartwright Act.

“[T]hose allegations ‘just as easily suggest rational, legal business behavior,’ as they do the existence of an agreement among the defendants to restrain trade,” the panel wrote Dec. 21 in an unsigned and unpublished memorandum quoting Name.Space, Inc. v. Internet Corp. for Assigned Names & Nos., decided by the Ninth Circuit in 2015.

K., who cheered for the 49ers for up to nine months beginning in 2013, claimed the NFL and 27 of its 32 teams struck deals to suppress cheerleader wages and recruitment.

According to K., the teams’ senior executives also agreed to pay cheerleaders a low flat rate for each game, and to not pay them anything for time spent rehearsing or doing mandatory community outreach.

Before a glut of labor lawsuits raised most cheerleaders’ wages to at least the minimum wage, K. said, cheerleaders were paid as little as $90 to $125 per game.

Meanwhile, NFL players earned an average of about $1.3 million each in 2016, according to K.’s February 2017 complaint.

U.S. District Judge William Alsup in San Francisco dismissed the case, finding K. failed to marshal evidence to show the teams had agreed to eliminate competition for cheerleaders or that K. herself was harmed by their conduct. He also said K. hadn’t shown the teams acted together to suppress wages.

The Ninth Circuit affirmed the findings. Discussing K.’s evidence – a decades-old anti-tampering provision in the NFL’s constitution and bylaws that bar teams from tampering with other teams’ employees while they are under contract, and meetings between NFL executives at annual events like the Super Bowl – the panel concluded it didn’t pass muster. 

“[T]he mere fact that these meetings occurred, at most, shows opportunity, not intent,” the panel wrote in the 6-page memorandum. “These allegations, again, suggest rational, legal business behavior, not a violation of the antitrust laws.”

The panel also found Alsup correctly denied K. permission to amend her suit and to conduct discovery, citing the Supreme Court’s 2007 landmark opinion in Bell Atl. Corp. v. Twombly which advised federal judges against permitting expensive discovery on vague antitrust allegations.

“Here, the district court’s conclusion that no plausible claim for relief has been pled justifies the denial of discovery ‘to avoid the potentially enormous expense of [antitrust] discovery,'” the panel wrote, quoting from Twombly.

U.S. Senior Circuit Judge N. Randy Smith and U.S. Circuit Judges Consuelo Callahan and Mary Murguia sat on the panel.

K. was represented by Drexel Bradshaw of Bradshaw & Associates, and the NFL and its defendant teams by Sonya Winner of Covington & Burling, both in San Francisco. Neither attorney could immediately be reached for comment Monday.

The NFL also had no immediate comment.

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