The class action and individual lawsuits against the management of the Buffalo Jills Cheerleading squad have been pending in the New York Supreme Court for Erie County since April 2014 before the Honorable Timothy J. Drury, J.S.C.
The cases concern allegations that the NFL cheerleaders for the Buffalo Bills football team were misclassified as independent contractors and unlawfully deprived of minimum wage for hundreds of hours of work.
In January 2015, the Court granted a motion by Caitlin Ferrari, plaintiff in the class action to amend the operative complaint. The order permits plaintiff to: assert claims against additional defendants, including the National Football League (“NFL”); assert a claim for retaliation against Defendants Buffalo Bills, Inc. (the “Bills”); and add plaintiffs Alyssa U., Maria P., and Melissa M. as plaintiffs in the class action. The new class plaintiffs had originally asserted their claims individually.
Copies of plaintiffs' 78-page Second Amended Complaint and the Court's Decision and Order granting the motion for leave to amend the complaint are linked below.
The Court permitted plaintiff to add the NFL as a Defendant. As we noted previously, the Bills lost earlier motions to dismiss the cases against it. In its’ opposition to those motions, the Bills revealed evidence concerning the NFL’s participation in the classification of the Jills as independent contractors.
The Bills asserted that it was not the cheerleaders’ employer, but it merely licensed use of the Buffalo Jills trademark to certain third-parties, including Defendant Citadel Broadcasting Company. The Bills produced several licensing agreements which included independent contractor agreements that the Jills management were required to have the cheerleaders sign as a condition of their participation on the squad. Several of the licensing agreements were approved by Commissioner Roger Goodell.
Plaintiff has argued that the independent contractor agreements are void as a matter of law. In the new complaint, plaintiff sought to assert claims against the NFL for its participation in the misclassification scheme. The Court noted in its decision:
The copies of the agreements between the Bills and Citadel, which in part concern the operation of the Buffalo Jills, as independent contractors, were approved by Commissioner Roger Goodell for the NFL and are arguably evidence of the NFL’s role in the conduct of the Jills cheerleading squad, which is at issue.
The Retaliation Claim Against the Bills
The Court permitted plaintiff to add a claim against the Buffalo Bills alleging retaliation against the cheerleaders.
In its answer to the complaints, the Bills asserted counterclaims against certain class members in the class action and the plaintiffs in the individual action for up to $100,000.
The Bills claimed that the independent contractor agreements that it required one third-party management company to have the Jills sign, contained a provision indemnifying the Bills for costs of the lawsuits.
Plaintiff argued that the independent contractor agreement that she was required to sign did not include the indemnificatin provision, and even it had, the agreement would be void and unenforceable as a matter of law.
After Plaintiff Ferrari brought the issue to the Court’s attention, the Bills withdrew the counterclaim without prejudice. They then asserted a claim against the management company for failing to include the indemnification provision in the independent contractor agreement that the cheerleaders were required to sign.
Plaintiff sought leave to amend her complaint to add a claim against the Bills for filing the counterclaim in retaliation for bringing the lawsuit, and noted that because the claim was only withdrawn without prejudice, the Bills could later reassert the claim. The Court permitted plaintiff to add the retaliation claim, noting: “although the Bills have withdrawn the counterclaim, it has done so without prejudice.”
Christopher Marlborough, one of the attorneys for the plaintiffs commented on the Court’s decision:
We are pleased with the Court’s decision. We were shocked when we learned about the leagues participation in the misclassification of the Jills as independent contractors and appalled by the Bills' decision to file a counterclaim against its former cheerleaders. We remain hopeful that the situation can be resolved in time for the Jills to take the field for the start of the 2015 season.
This isn’t the first time that members of the Jills have fought to improve working conditions for their fellow cheerleaders. In 1995, the National Labor Relations Board determined that the Jills were employees rather than independent contractors. That same year, the members of the Jills voted overwhelmingly to form the NFL Cheerleaders Association, the first and only NFL cheerleader labor union. They had hoped that other NFL cheerleading squads would join the cause, but their historic achievement was short-lived. By 1996, the union was forced to disband in order for the Jills to continue performing on the field.