Over the last month, seven former Houston Texans cheerleaders have sued the team and raised very disturbing claims. The cheerleaders assert that they were subjected to assault, harassment, misappropriation of identity and unpaid wages. They also contend that the team’s cheerleading coach, Altovise Gary, forcibly applied duct tape on at least one cheerleader as a means of humiliation and body-shaming. These cheerleaders felt intense pressure to avoid the alleged wrath of Gary, who is accused of obsessing over the cheerleaders’ weight and physique—particularly when the cheerleaders appeared “skinny fat.” All of the cheerleaders insist that they were grossly underpaid and required to operate in hostile and unsafe working conditions.
These and other claims are detailed in two complaints recently filed in the U.S. District Court for the Southern District of Texas. The cheerleaders demand jury trials and seek compensatory and punitive damages. Prominent civil rights attorney Gloria Allred and Houston attorneys Kimberly Spurlock and Bruse Loyd are representing the cheerleaders. The following is an analysis of the cheerleaders’ core arguments and likely defenses by the Texans.
The cheerleaders depict a hostile, abusive and exploitive workplace
Hannah Turnbow, Ainsley Parish, Morgan Wiederhold, Ashley Rodriguez, Kelly Neuner, Angelina Rosa and a woman identified by the initials P.G.G. were all cheerleaders for the Texans in recent years. Turnbow and the other named women are co-plaintiffs in one complaint (Turnbow v. Texans) whereas P.G.G. has brought her own complaint (P.G.G. v. Texans). The two complaints raise similar claims and detail related fact patterns.
Collectively, the cheerleaders take aim at what they portray as a strict, burdensome and often uncompensated workload. To that end, Turnbow’s complaint notes that Texans cheerleaders engaged in job functions that went well beyond merely appearing and performing at NFL games. As the cheerleaders explain it, they were required to partake in team meetings, photo shoots, cheer rehearsals, apparel fittings and also travel long distances on behalf of the Texans. The cheerleaders were paid $7.25 an hour—which is the federal minimum wage—but they insist that they were not paid for most of their work. Along those lines, the cheerleaders argue that Texans supervisors and human resources personnel failed to record much of their team-related activities. Therefore, the cheerleaders insist, the Texans failed to pay them for numerous hours of active employment.
To illustrate, P.G.G highlights that she was contractually obligated to regularly tweet on a team-related Twitter account and send emails in a timely manner. Her pay, she insists, did not reflect these electronic activities. For their part, Turnbow and her co-plaintiffs calculate that they earned such meager salaries that fast-food workers earned more. In fact, the cheerleaders say that they were paid mere “pennies for each hour worked.” The cheerleaders reached this conclusion after comparing their actual pay with the total number of hours they spent on practices, games, appearances, travel time, preparation and compulsory social media marketing.
The two complaints also depict a workplace where the cheerleaders were frequently exploited and subjected to both discriminatory and degrading treatment. Here are some of the claims (please note that these are claims, not proven facts):
·Altovise Gary, whom the Texans’ media guide lists as “Coach and Senior Cheerleader Programs Manager,” is accused of cruelty. The cheerleaders say that Gary routinely engaged in physically and emotionally abusive behavior. This alleged pattern included invasive physical inspections and body shaming rituals. Gary is also accused of trying to embarrass cheerleaders through physical assaults, such as duct-taping a cheerleader in the stomach and on the sides. Gary allegedly duct-taped Angelina Rosa and then, while “dangling” the duct tape in front of the other cheerleaders, Gary warned them that they would be next if they didn’t properly attend to their bodies. For her part, P.G.G. recalls Gary walking up to one cheerleader and “poking her face, asking her if she had gained her ‘freshman 15’ [and] saying she looked like she ‘ate a plate of salt.’”
·When traveling on behalf of the Texans, the cheerleaders were not provided a stipend or per diem to cover their food costs.
·Cheerleaders were denied any share of revenues generated by the sale of licensed products in which they appear; cheerleaders were also required to sign thousands of Texans calendars without accompanying compensation.
·Cheerleaders were subjected to “dangerous” work conditions, including those that allowed a fan to inflict a “serious bodily injury” on one cheerleader.
·The Texans “micro-managed” the private and professional lives of the cheerleaders in demeaning ways. For instance, the cheerleaders were allegedly given explicit orders on “how they wear their hair, including where to have their hair cut and styled.” According to P.G.G., one cheerleader was admonished that “she could not have straight hair” and that if she didn’t display curly hair then the team would “find another Latina girl to replace her.” P.G.G. also contends that she was required to receive a spray tan before every game and also visit the gym “multiple hours” each week.
·The cheerleaders were “often reminded” that they were easily “replaceable” and thus shouldn’t complain or speak up.
The cheerleaders’ legal claims
The factual assertions detailed above serve as predicates for the specific legal claims levied against the Texans.
The cheerleaders raise several types of claims that fall under the category of “failure to lawfully compensate.” The cheerleaders maintain that the Texans have run afoul of the federal Fair Labor Standards Act (FLSA) and the Texas Labor Code. Where it applies, the FLSA mandates that employees’ pay cannot fall below the minimum wage. It also dictates that employees who work in excess of 40 hours per week are owed overtime pay of one-and-a-half times regular pay for those excess hours. The cheerleaders insist that the Texans owe substantial back pay and should be directed by a court to pay the cheerleaders for all of the work they performed—a figure that would include retroactive pay of at least minimum wage ($7.25/hour) and overtime pay (one and a half times/hour) for all hours worked in excess of 40 hours per week.
As detailed above, the cheerleaders depict “work” to include a broad range of team-related activities and services rendered. Such work includes practices, games, appearances, travel time and compulsory social media marketing. Some of these activities could fall within the definition of “off-the-clock” time, which generally refers to job-related activities that occur outside the workplace. For instance, “volunteer” work on behalf of an employer can be compensable under the FLSA, as can certain kinds of travel time (home-to-work travel is usually not compensable but travel to off-site locations for work often is compensable).
The degree to which the cheerleaders “worked” also impacts whether they are classified as benefit-eligible employees. Such a classification dictates whether they were owed health care and other forms of remuneration. Pursuant to their contracts with the Texans, the cheerleaders agreed that they would work a schedule of less than 30 hours per week. As a consequence, they accepted that they would “not receive benefits afforded to regular full-time or eligible part-time employees of the Club, including, without limitation, health and welfare benefits, retirement benefits, paid vacation days and holiday pay.” If the cheerleaders in fact worked in excess of 30 hours, they may be owed compensation for the value of unpaid benefits.
The cheerleaders also claim financial injury through the appropriation of their likeness without consent. They cite their appearance in the team calendar (which costs $10.00 on NFLShop.com) and their obligation to sign various Texans products that are then sold or distributed. The cheerleaders demand the monetary value of their likenesses used in these products and other team publications. Under Texas law, the cheerleaders have a right to privacy and a right of publicity, the latter of which refers to the property interest every person has in his or her name or likeness. These rights can be used to prevent, or be compensated for, appropriation of one’s name or likeness without consent; whether the cheerleaders sufficiently consented is a factual question that would be determined in the litigation.
In addition, the cheerleaders demand damages for breach of contract. Their breach of contract theory rests on the assertion that they signed employment contracts with the Texans and that those contracts obligated the team to pay them minimum wage for each hour spent providing services as a cheerleader. The contract, the cheerleaders assert, expresses that they must perform at games and make various other appearances. As detailed above, the cheerleaders contend they were not paid for many of these activities and were denied reasonable per diems, refunded expenses and reimbursed mileage.
The cheerleaders also maintain that they suffered assault and assault by threat of bodily injury, the latter of which refers to a person intentionally threating another with imminent bodily injury and then causing an injury. Here the cheerleaders focus on the alleged duct-taping of body parts as a way of shaming them into losing weight and/or adding muscle tone. Other cheerleaders were also purportedly threatened with these same abusive and degrading practices. Accordingly, the cheerleaders also plead a claim for “intentional infliction of emotional distress”—a claim that contends that the cheerleaders suffered severe emotional distress because of Gary’s (allegedly) outrageous conduct.
The cheerleaders also assert that the Texans engaged in negligent hiring and negligent retention. In short, the cheerleaders maintain that the Texans should have never hired someone like Gary or continued to employ her. Team management is also accused of failing to intervene in the alleged mistreatment. Similarly, the Texans are blamed for failing to supervise, train and retain competent employees.
Lastly, two of the cheerleaders—Turnbow and Rosa—assert civil rights claims against the Texans. They contend that they were subject to gender discrimination. Turnbow and Rosa intend to file a complaint with the Equal Employment Opportunity Commission (EEOC). For more on the process ahead for the two cheerleaders in pursuing a remedy with the EEOC, see my The MMQB article on former New Orleans Saints cheerleader Bailey Davis’s charge of discrimination against the Saints.
Legal defenses for the Texans
Every lawsuit has two sides, and the Texans are armed with a number of legal arguments in hopes of seeing these lawsuits dismissed.
As a starting point, the Texans have filed a motion to dismiss Neuner from the litigation. The Texans contend that Neuner waited too long to sue and that her claims are time-barred under the relevant statutes of limitation. Neuner worked for the Texans for four months in 2011. She was employed on a one-year contract that was terminable at will by either the team or Neuner. The team elected to terminate the contract in August 2011, around the time Neuner allegedly told Glenda Morrison, the Texans senior director of human resources, that she was “very thankful to have this opportunity” and “would be devastated if it was taken away.” According to an affidavit signed by Morrison, Neuner added that she "really [respected] Coach [Gary] and what she does for the cheerleaders." Under Texas law, Neuner likely had to file her claims within two or four years (depending on the nature of the claim); she waited seven years to do so.
The Texans have also sought to dismiss the cheerleaders’ claim on grounds that their employment contracts contain mandatory arbitration provisions and the cheerleaders failed to adhere to those provisions. Such a provision expresses that NFL commissioner Roger Goodell has the power to resolve disputes between the cheerleader and the Texans, including those that arise after the cheerleader leaves her employment. SI has obtained copies of employment contracts used by the Texans to employ cheerleaders. The one between the Texans and Neuner was signed in 2011. It contains a sweeping arbitration clause:
The contracts for P.G.G. and Turnow, both signed deals in 2017, contain a similar clause. The clause, however, expressly limits the commissioner’s authority to serve as the arbitrator. Indeed, the clause instructs that if the commissioner determines that the dispute between the cheerleader and the team is “not football oriented”—a phrase that the contract defines as “a dispute that could arise between any employer and employee, such as a dispute relating to or arising out of discrimination, wage and hour, or family and medical leave issues”—then the cheerleader and the team agree that the alternative dispute resolution company JAMS, Inc. would serve as the arbitrator and that the arbitration hearing would take place in Houston. While this type of arbitration clause limits the commissioner’s authority to resolve the cheerleader-Texans dispute, it more relevantly reaffirms that the cheerleader contractually agrees to arbitrate her claims and that any lawsuit can only follow arbitration.
At the same time, Neuner’s contract (signed in 2011) contains various provisions that prohibit the Texans from engaging in harassment and discrimination. Likewise, it prohibits the team and its employees from “physical contact such as assault” and making threats. Gary, the cheerleading coach, is accused of engaging in such misbehavior. Whether Neuner notified Texans’ human resources of her grievances (as required by the employment contract) is unclear. Interestingly, such anti-harassment and anti-discrimination clauses do not appear in the 2017 employment contracts—a finding that suggests the Texans learned from other NFL teams that had been sued by their former cheerleaders and in turn sought to minimize opportunities for lawsuits brought by Texans cheerleaders.
The Texans also charge that the seven cheerleaders are at fault for not reporting their hours. According to Turnow’s employment contract, the cheerleaders were explicitly required to report their hours:
The Texans, who are represented by attorney David Gregory of the law firm Locke Lorde, stress that such a reporting clause is essential for the team to accurately measure cheerleaders’ workloads: “If the Texans do not know a cheerleader is working hours, the Texans cannot ensure she is paid for such hours.” As the litigation develops, it will be interesting to see whether, and how, the cheerleaders notified the team of the time they spent working.
The litigation may also delve into whether the cheerleaders are exempt from the FLSA. If they are exempt, then the cheerleaders would lose the argument that the FLSA commands that they are owed overtime pay and minimum wage. Anticipating that the Texans might argue the cheerleaders are exempt, the cheerleaders insist that they are “nonexempt”—meaning, among other things, that they would be entitled to overtime pay if they can prove that they worked in excess of 40 hours per week.
One concern for the cheerleaders may be FLSA findings involving the Oakland Raiders and their cheerleaders, the Raiderettes. In 2014, the U.S. Department of Labor concluded that the Raiderettes are “seasonal workers” under the FLSA. Seasonal workers, who are exempt from the FLSA, are employees of amusement and recreational businesses that operate for seven months or fewer during the year. Whether this classification is appropriate can be debated: NFL teams operate throughout the year and between tryouts, practices, games and various public appearances, cheerleaders are engaged in many months of work.
The Texans still have other defenses. They stem mainly from the employment contracts signed by the cheerleaders. In terms of the cheerleaders arguing that their likenesses have been lawfully misappropriated, the team can highlight that each cheerleader contractually assented to the Texans receiving “all revenues derived” from any films, broadcasts, photographs and other recording of the cheerleaders. The cheerleaders also contractually assented to the team owning “all rights with respect to the Houston Texans Cheerleaders (including, without limitation, the names, trademarks or service marks, logos, uniforms and copyrights.)” Further, each cheerleader “irrevocably [granted] to the Texans the exclusive right and authority to copyright, use and publish, and the right to license to others to so use, cheerleader’s name, likeness, picture and voice.” Whether such language extends to cheerleaders’ signatures on Texans’ products may become a source of debate.
The Texans are also poised to argue that cheerleaders agreed to the team—and Coach Gary—having significant discretion in demanding a certain physical appearance. Each cheerleader consented to being “selected by the Houston Texans” for their “individual ‘look’ and style.” Also, although the employment contract makes clear that “there will be no weigh-ins or body fat analyses,” each cheerleader agreed that their appearance would “be evaluated from time to time in the sole discretion of the Director of Cheerleader Programs and Coach.” Under this contractual framework, Gary had the right to issue a negative appearance evaluation and impose a 30-day suspension “due to factors such as excessive weight gain or loss, body rolls, cellulite, an unapproved hair style or hair color, visible tattoos or prohibited piercings.” Keep in mind, the cheerleaders will likely argue that Gary’s alleged techniques crossed the line from contractual right into unlawful abuse.
Other NFL teams have settled lawsuits brought by cheerleaders
As explained above, the Texans possess several defense arguments that might ultimately persuade a court. Whether the team will elect to battle former cheerleaders to reach that outcome is a separate consideration. If the team opts to litigate, it faces all of the risks inherent in pretrial discovery. Such “discovery” refers to the legal process where each side must exchange evidence, such as emails and texts, and provide sworn statements in response to often difficult and invasive questions. The team may worry about unflattering information becoming public through discovery.
The Texans and the seven former cheerleaders are also aware that their litigation occurs as other teams have been sued by former cheerleaders. Over the last four years, the Raiders, the Tampa Bay Buccaneers, the New York Jets and the Buffalo Bills have all been sued. Also, as mentioned above, the Saints now face an EEOC complaint. Most of these teams have settled these claims and none have gone to trial. Chances are the Texans will settle as well.
The MMQB will keep you updated on the Texans litigation and other NFL cheerleader litigation.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.