NFL Ducks Cheerleaders’ Antitrust Class Action

SAN FRANCISCO (CN) – The National Football League has defeated an antitrust class action claiming it conspired with 27 teams to suppress cheerleaders’ wages and restrict their mobility.

In a ruling issued Thursday, U.S. District Judge William Alsup refused to let plaintiff Kelsely K., who cheered for the San Francisco 49ers in 2013, file an amended complaint. Alsup found her proposed amendments failed to plausibly allege an antitrust conspiracy, just as he found in a ruling dismissing the lawsuit in May.

The judge found the proposed complaint failed to cite actual evidence for allegations that NFL teams colluded to keep cheerleaders’ wages low.

“The proposed amendment … rests solely on a theory of parallel conduct, i.e., that all clubs must have acted in concert because they all paid below what, according to the proposed amendment, cheerleaders’ services were worth,” Alsup wrote in his 11-page ruling.

The lead plaintiff says NFL teams paid cheerleaders as little as $90 to $125 per game with no compensation for other required activities, until a rash of recent labor suits raised most cheerleaders’ pay to at least minimum wage.

Alsup also found allegations of a “no poaching agreement” among teams implausible, given that  an NFL policy expressly forbids such conduct. While the league bans recruiting other teams’ employees when they are under contract, another policy bars interfering with an employee’s ability to seek employment with another team while in between contracts.

Despite that policy, the plaintiff insists that no team has ever hired another club’s cheerleader, which serves as proof of a “no poaching” pact among the NFL teams.

But Alsup found the mere fact that no team has hired another club’s cheerleader does not by itself support a theory of collusion.

“Is it proof of a conspiracy? No, it is not, at least in the absence of well-pled facts showing a need for clubs to poach in the first place,” Alsup wrote in his ruling.

The judge said it’s possible that NFL clubs have never had to lure away cheerleaders from other teams because “sufficient local cheerleader talent” exists in their respective geographic regions.

Turning to claims that cheerleaders’ wages have not “skyrocketed” at the same pace as NFL revenue and salaries for players, executives and coaches, Alsup found the cheerleaders failed to explain why their salaries should swell at that pace.

“The proposed amendment alleges nothing to suggest that cheerleaders have made the same contributions as have players, executives, and coaches in causing the NFL to flourish,” Alsup wrote.

He also found lead plaintiff Kesley K. failed to demonstrate how she personally suffered an antitrust injury.

Kelsey said the director of the 49ers cheerleading team “caused to be communicated” to her that if she was not rehired as a 49ers cheerleader, she could not try out for another NFL team. After she was turned away at the end of the 2013 season, Kelsey says she didn’t try out for another team – like the then-Oakland Raiders – even though she wanted to.

Alsup found those allegations were missing a lot of key facts, such as how the message that she was not allowed to try out for other teams was conveyed, why she could not try out for other teams, and why she did not attempt to try out for another team.

“The peculiar phrasing of the allegation makes it impossible to infer any reason why it was not wholly plaintiff’s own decision to not tryout for another club after the 49ers declined to re-hire her,” Alsup wrote in his ruling.

Alsup said he warned the plaintiff to “be sure to plead her best case” in any proposed amended complaint.

“Her proposed amendment, however, still fails to plead factual allegations supporting any plausible claim for relief,” Alsup wrote.

Alsup denied the motion for leave to file an amended complaint as futile and issued judgment in favor of the NFL on Friday.

The NFL’s corporate office in New York and attorneys for the lead plaintiff and NFL teams did not immediately return phone calls seeking comment Monday afternoon.

The lead plaintiff is represented by Thomas O’Brien of Bradshaw Associates in San Francisco. The NFL and its 27 teams are represented by Sonya Winner of Covington & Burling in San Francisco.

Five of the NFL’s 32 clubs were left out of the lawsuit because they do not employ cheerleaders.

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