Fired NFL cheerleader sues over double standard for off-field behavior

For three years as a member of the New Orleans Saints cheerleading team, the Saintsations, Bailey Davis complied with the eight-page booklet of team rules. Sometimes they made her angry, but she loved performing and had worked her entire life to make it to an NFL sideline, so she accepted what was asked of her.

Davis could not publicly identify herself as a Saintsation on social media or in any other way - if she wanted to make money teaching a dance class, she couldn’t cite being at the top of her craft as a credential. She could not wear clothes with a Saints logo on her off days. She could not use her last name during public appearances. She, and the other New Orleans cheerleaders, could spend no more than four seasons on the Saintsations. And yet, she had to represent herself as a “role model” and avoid “questionable social interaction” or risk termination.

The form of social interaction most scrutinized was contact with players. It was forbidden in any form. If an NFL player liked her social media post, it was incumbent on her to figure out how he found her page and unlike it. She could not be in the same section of a club, party or restaurant as a player, regardless of who arrived there first.

Despite her efforts to follow rules, Davis was fired in January after a rumored encounter with a player at a party and a picture the Saints considered racy posted to her Instagram account. Davis subsequently filed a gender discrimination complaint with the Equal Employment Opportunity Commission against the Saints and the NFL, claiming female cheerleaders and male players unfairly faced different standards.

The rules that led to Davis’ firing and complaint filing, first uncovered last week by the New York Times, typify attitudes and treatment toward NFL cheerleaders. After a flurry of movements nationwide meant to empower women and increase equality between genders, rules that have been overlooked or accepted for years in the NFL may no longer be compatible with the cultural moment.

“There’s a long-standing history of the NFL not dealing with these workplace inequalities,” said New York Assemblywoman Nily Rozic, who has introduced legislation to improve conditions for cheerleaders. “I think finally they have to confront it. The social and political discourse in this country right now is such that there’s no way around it.”

The NFL did not take a clear stance on the case between the Saints and Davis, saying the league and its teams support fair employment practices.

“Everyone who works in the NFL, including cheerleaders, has the right to work in a positive and respectful environment that is free from any and all forms of harassment and discrimination and complies with state and federal laws,” league spokesman Brian McCarthy said.

But the drumbeat may only be starting, across all professional sports. Last year, the Milwaukee Bucks settled a class-action lawsuit brought for $250,000 over wages former Bucks dancer Lauren Herington claimed were below minimum wage. The Bengals, Raiders and Jets have all faced legal action over wages and treatment of cheerleaders. Ryan Stephan, the Chicago lawyer who represented Herington, noticed Davis’ case and believed it was both due and only a starting point.

“I wasn’t surprised,” Stephan said. “I think the claims being made by the plaintiff in the Saints case about disparate treatment between players and dancers is going to become something more familiar that’s pretty big. I think there is a viable case for action. And from a fairness standpoint, I don’t think it’s fair. It’s not equitable.”

Davis is not seeking equal pay, or equal perks, to what Saints players have received. She wants to be treated the same as Saints players when both are similarly situated. Since players and cheerleaders both perform for the Saints, she wants them subjected to the same rules regarding using an affiliation with the team for promotion, fraternization and social media postings.

In taking her case public, Davis said, she drew confidence from the way women in other fields haven spoken out, from the Hollywood #MeToo and Time’s Up pushes to the voices who spoke out against USA Gymnastics and abusive trainer Larry Nassar.

“I was really inspired by Aly Raisman and her speaking out about USA Gymnastics,” Davis said. “That’s kind of who I’ve been looking to as far as getting confidence in speaking out, how she interviews, and how it wasn’t OK. At the time, when I was in the organization, I didn’t realize these rules were not OK. It wasn’t OK for us to be treated like that.”

While further specifics have been slow to emerge, Davis said stories similar to hers abound. Davis said a San Francisco 49ers cheerleader told her she had been fired over an Instagram picture of her and her boyfriend nearly kissing. The picture, Davis said, was posted on her boyfriend’s account, and her boyfriend is not an NFL player.

A 49ers spokesperson declined to comment and said an outside company, e2k, operates the Gold Rush, the 49ers’ cheerleading squad. A message left with e2k was not returned.

According to the complaint, the NBA’s New Orleans Pelicans fired three Pelicans cheerleaders for dating Pelicans players, while the players received no sanction. The cheerleaders for the Saints and Pelicans are both owned by Gayle Benson, the widow of Tom Benson, and run under the same umbrella.

The rules also troubled Davis because they cast NFL players as inherently predatory. In the rules and in emails from Saints officials, the fact that players would pursue cheerleaders, even to the point of harassment, was treated as a matter of course, with all the onus to avoid the situation placed on the cheerleaders.

“Every employee deserves to be treated with respect,” NFL Players Association president DeMaurice Smith said in an email. “There is absolutely no justification for paying these workers less than a fair wage and for making them endure discrimination in the workplace. These stories, including the wage and hour discrimination cases won by cheerleaders, serve notice that changes must be made immediately. It is simply the right thing to do.”

Davis hopes other cheerleaders will eventually join her. Since the Times first reported Davis’ complaint, her life has been a whirlwind of television appearances and media requests. She cast herself as an advocate, not a victim. She isn’t sure what will come next, but soon she will start looking ahead.

“I’m looking forward to my next professional job,” Davis said. “And being able to be actually proud of my job, and be proud of myself.”