U.S. District Judge William Alsup ruled in a 13-page order that lead plaintiff Kelsey K., who cheered for the San Francisco 49ers for seven months beginning in 2013, had failed to state a claim for conspiracy under state and federal antitrust laws.
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.”
He added, “The complaint must answer the basic questions of ‘who, did what, to whom (or with whom), where, and when?’ Plaintiff has not met these requirements.”
K., who originally sued in January as “Jane Doe,” claims the NFL and 27 of its 32 teams struck anticompetitive deals designed to drive down cheerleader wages by agreeing not to poach cheerleaders from one another, eliminating competition for them.
According to K., the teams’ senior executives also agreed to pay cheerleaders a low flat rate for each game, and not pay them anything for time spent rehearsing or doing mandatory community outreach.
Before the glut of labor lawsuits raised most cheerleaders’ pay to at least minimum wage, K. said cheerleaders were paid as little as $90 to $125 per game, and nothing at all for other required activities.
NFL players, on the other hand, earned an average of approximately $1.3 million each in 2016, and mascots make between $25,000 and $65,000 per year.
In his Friday ruling, Alsup said K. had failed to submit evidence to support her claims under the federal Sherman Act and California’s Cartwright Act that the teams had agreed to eliminate competition, or that K. had suffered harm due to their anticompetitive conduct.
Alsup said K.’s evidence could have consisted of something like a former NFL employee coming forward to provide details of a conspiratorial meeting between the teams’ executives, but “the complaint fails to allege anything of the sort and instead rests on assertions of parallel conduct anchored in rhetoric and conclusory statements.”
“For a conspiracy of the scale alleged by this complaint, one would expect at least some evidentiary facts to have been located and pled,” he wrote.
Addressing K.’s wage claims, Alsup said K. hadn’t alleged facts showing the teams acted together to suppress wages.
K. had submitted per-game wage rates for the Oakland Raiders, the Tampa Bay Buccaneers and the Cincinnati Bengals – which ranged between $90 and $125 per game – as evidence of a conspiracy. However, Alsup noted that the rates actually differ by 20 to 25 percent.
Even more damning to K.’s claim is the fact that the Buffalo Bills didn’t pay their cheerleaders for games at all.
“These differences make plaintiff’s theory implausible,” he said.
Alsup added Friday that K. had failed to show how she herself had been injured by the NFL’s conduct, with the complaint omitting details about K.’s experience with the 49ers.
“Generalized accusations of wrongdoing against cheerleaders as a whole do not suffice,” he said.
In addition to the National Football League and NFL enterprises, the defendants are the San Francisco 49ers, Oakland Raiders, San Diego Chargers, Los Angeles Rams, Arizona Cardinals, Atlanta Falcons, Baltimore Ravens, Buffalo Bills, Carolina Panthers, Cincinnati Bengals, Dallas Cowboys, Denver Broncos, Detroit Lions, Houston Texans, Indianapolis Colts, Jacksonville Jaguars, Kansas City Chiefs, Miami Dolphins, Minnesota Vikings, New England Patriots, New Orleans Saints, New York Jets, Philadelphia Eagles, Seattle Seahawks, Tampa Bay Buccaneers, Tennessee Titans and Washington Redskins.
K. is 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 returned emailed requests for comment by press time.