In response to a class action lawsuit (Lacy T. v. Oakland Raiders) filed by Raiderettes alleging wage theft and other violations of California labor law, team owners have filed a motion to force the cheerleaders out of court and into individual and secret arbitration before the NFL Commissioner.
“This is an attempt to avoid public scrutiny of the adjudication of the cheerleaders’ claims that Raiders’ management has engaged in illegal employment practices for years,” said Sharon Vinick of Levy Vinick Burrell Hyams, the Bay Area law firm representing the cheerleaders. “The owners want to have this employment issue decided by one man whose pay is dependent on the very teams that engage in the illegal conduct.”
The Raiders’ motion also claims that the lawsuit cannot be brought as a class action and its employees must bring individual actions to recover their unpaid wages.
“As we see it, this is a contract full of illegal provisions and trying to appoint the NFL Commissioner to act as judge and jury is just one more,” added Vinick. “It just doesn’t pass the smell test for the Raiders to suggest that the NFL Commissioner is unbiased when it comes to a dispute between the team owners who elect him and pay his $44 million salary and a group of non-unionized cheerleaders.”
The team’s motion to force the cheerleaders into arbitration claims that the dispute must be arbitrated under rules written by the NFL Commissioner and the decision of the Commissioner would be “final, conclusive and unappealable.” The rules also empower the Commissioner to force the parties to keep the entire proceedings confidential.”
“The NFL Commissioner can certainly enforce the rules of football. But a judge and jury should decide whether the Raiders have broken the laws of California, not a secret proceeding in which the Commissioner can, according to the NFL rules, disregard the laws of evidence used in judicial proceedings, disallow discovery, and conduct the arbitration in such manner as he deems appropriate” said Leslie F. Levy, another member of the cheerleaders’ legal team.
The case is currently in Alameda County Superior Court. The original complaint, filed in January, alleges that the club pays Raiderettes for only a fraction of the hours they practice and perform, withholds pay until the end of the season, does not pay overtime, and forces the cheerleaders to pay many of their own business expenses out of the low wages they earn.
Under the constitution and bylaws of the NFL, each team is required to forward copies of employment contracts to league headquarters. According to Vinick, “If the NFL Commissioner gets copies of all of these illegal contracts, why hasn’t he taken steps to make sure that the cheerleaders are being paid in accordance with both state and federal law?
“In their first public response to our lawsuit, the Raiders are asking the court to allow the very person who has tolerated the illegal contracts to decide the cheerleaders’ case” she said, adding that her clients will be asking the court to find the NFL arbitration procedure unenforceable.
The case has drawn national attention, from sports fans to employment law experts alike.
“Letting someone be an arbitrator who is paid by and works for one side would be like letting a corporate defendant pick its CEO’s mother to decide cases between the corporation and its workers.” said Paul Bland, Senior Attorney at Public Justice, a national public interest law firm with offices in Oakland and Washington, D.C. “This arbitration clause plainly violates both California and federal law,” he added.
The growing practice of requiring arbitration of employment disputes as a condition of employment has come under increasing attack by critics who claim that arbitration favors employers. A bill called the Arbitration Fairness Act, now pending in Congress, would put an end to the practice of forced arbitration of employment disputes. Paul Bland, testified in hearings before the Senate Judiciary Committee in October 2011 that many corporations are using arbitration agreements to eviscerate the ability of consumers and employees to bring class actions. Other leaders in the fight against mandatory arbitration include the National Employment Lawyers Association and the Alliance for Justice.
The lawsuit against the Raiders was followed shortly by a similar lawsuit against the Cincinnati Bengals on behalf of a member of their cheerleading squad, the Ben-Gals, who also seeks to bring the case as a class action.
Levy Vinick Burrell Hyams LLP is an Oakland-based firm specializing in representing employees. Anyone who is interested in further information regarding the lawsuit should visit www.levyvinick.com or call the toll-free number 1-866-318-7700.