As the NBA starts a new season this week, the salary cap for players will climb to a record $70 million per team at the same time that a federal court considers charges that cheerleaders have been cheated out of fair pay.
This fall, legal claims of wage theft in professional cheerleading have spread from the NFL to the NBA, and basketball teams’ treatment of female performers is under intense scrutiny.
Lauren Herington, a former dancer for the Milwaukee Bucks, sued the team in federal court in Wisconsin last month, charging that she had been paid well under the minimum wage during the 2013-14 season. Hers is the first suit of its kind in the NBA, and it could have implications both for the roughly 40 women who would qualify as members of a Bucks class action and for the broader league.
While dancing for the Bucks, Herington said, she spent full days practicing, performing and engaging in mandatory exercise and beauty regimens. The flat fees she received — $65 for games, $30 for practices and $50 for special appearances — translated to an average hourly wage of $5, according to her lawyers. On busier weeks, hourly earnings fell as low as $3, the lawyers said, less than half the $7.25 minimum required by both Wisconsin and federal law.
“They told us it was a full-time commitment with part-time pay,” Herington said. “If we had an issue, we’d be shown the door.”
Since last month, another plaintiff has joined Herington, and her lawyers said five others were considering doing the same.
In a statement, the Milwaukee Bucks said the team would fight the suit in court.
“The lawsuit presents inaccurate information that creates a false picture of how we operate,” Jake Suski, a spokesman, wrote in an email. “The Bucks value the contributions our dancers make to the team. We treat all of our employees fairly, including our Bucks dancers, and pay them fairly and in compliance with federal and state law.”
Mike Bass, a spokesman for the NBA, said: “Team dancers are an important part of the NBA game experience and are valued members of the NBA family. As for all employees, we work with our teams to ensure that they comply with all applicable wage and working condition laws.”
Beyond wages paid, Herington’s suit takes into account certain expenses that she said the Bucks required her to cover: special cleaning of her uniform, tanning sessions, false eyelashes, regular manicures and hair appointments at Salon Nova and Lash Boutique, where highlights can run more than $100.
Similar allegations emerged against NFL teams last year, accumulating after a woman sued the Oakland Raiders in January 2014. That case paved the way for subsequent cases against the Buffalo Bills, the New York Jets, the Tampa Bay Buccaneers and the Cincinnati Bengals.
Most but the Bills case have been settled, although teams have avoided admitting wrongdoing. Last week, the Bengals proposed a settlement, according to the lawyer who brought the class-action suit; the team offered to pay $255,000, or $2,500 for every season a qualifying cheerleader worked for the team, from 2011 to 2013.
The marginal difference between minimum wage and what plaintiffs in these cases were paid is not large, said Sharon Vinick, an employment lawyer in California who argued the first case of this kind, against the Raiders. That team agreed to pay about $6,000 to each woman who worked for the team from 2010 to 2012, and $2,500 for 2013, when pay was higher.
“That amount of money means nothing to these teams,” Vinick said. “We’re not talking about mom-and-pop struggling businesses that can’t afford to pay. These are multimillion-dollar organizations that are choosing not to follow the law when it comes to compensating these women.”
Responding to litigation, state lawmakers have sought protections for professional cheerleaders, some of whom are independent contractors rather than employees, an arrangement that can help insulate teams from liability. In the case of the pending suit against the Bills, for example, the dancers are contract workers.
In the wake of the Raiders suit, Assemblywoman Lorena Gonzalez of California introduced a bill that Gov. Jerry Brown signed into law last July, designating professional cheerleaders as employees and entitling them to paid sick leave, family leave and workers’ compensation. It will take effect in January. In New York, Assemblywoman Nily Rozic has introduced a similar bill.
Although both pieces of legislation were inspired by the higher-profile allegations against NFL teams, the lawmakers are not limiting their focus to football.
On Monday, Gonzalez and Rozic, together with another New York assemblywoman, will send a letter to the NBA commissioner, Adam Silver. In it, they will ask the NBA to disclose the terms and conditions of cheerleader contracts for all 30 teams in the league. (The lawmakers sent a similar letter to the NFL’s commissioner last month; it has gone unanswered.)
“We want a clear understanding of employment status and pay scales,” Rozic said, noting that a bit more information had been made public in the NFL because of suits and settlements, but no sense of NBA labor practices with respect to cheerleaders existed.
At least one NBA team is known to pay legal wages, said Vinick, the California lawyer, and it indirectly inspired the first suit of this kind. Vinick’s former client Lacy T. of the Raiders, whose last name was not released by the league, danced for the NBA before she joined the NFL. Vinick said the Golden State Warriors of the NBA had paid a legal hourly wage, and that basis for comparison had informed her client’s choice to sue the Raiders.
“I know the Warriors pay dancers legally,” Vinick said, “but I don’t have any sense of whether that’s the norm in the NBA.” She said that after the Raiders case, several other women from NFL teams that have not been sued had approached her. They considered bringing cases, too, she said, but ultimately decided not to for various reasons, including fear of alienating teammates or harming professional dancing careers. She said Herington’s case might prompt other women to come forward.
“A lot of employees don’t even realize it’s wage theft,” Vinick said. “There’s this attitude: ‘It’s the Raiders — why would they do something illegal?’ ”
She called the state legislation positive but not essential — it has always been a violation of the law not to pay minimum wage, she said. “If you’re the owner of a team and you’ve continued these practices after these cases, it’s the height of arrogance to think nobody’s going to come and get you,” she said, adding that she was skeptical that league commissioners like Silver were even aware of each team’s unique compensation structure for cheerleaders.
Her hope, and that of lawmakers, is for the leagues to issue labor guidelines specific to team dancers.
“This shouldn’t have to be done state by state,” said Gonzalez, the California assemblywoman. “This should be clear to the NBA, NFL and NHL.”
In 2006, “Making the Team,” a television show following hopeful young women through tryouts for the Dallas Cowboys’ cheerleading team, made its debut on Country Music Television. It entered its 10th season on air this year. The show has raised consciousness about the culture of professional cheerleading, showcasing women ridiculed during body-fat evaluations or for not wearing enough makeup.
Herington, the former Bucks dancer, has her own stories to that effect, having been chastised for choosing to eat a Subway sandwich at a rest stop rather than a salad, or for snacking on pieces of turkey that her coach mistook for beef jerky.
But such stories do not figure into her legal complaint. Instead, her case focuses on the financial bottom line.
“We know the concessionaire selling you a hot dog is an employee making minimum wage,” said Rozic, the New York legislator. “Why should that be different for the women dancing on the floor?”
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