Adventures In Cheerleading Litigation

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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45 Responses

  1. greginak says:

    Before going any further do stipulate that the Raiders do indeed suck?Report

  2. Mike Schilling says:

    Is it overly cynical to think that another reason arbitration is preferred is that that the employers hire and fire the arbitrators?Report

    • Explore around the website of the plaintiffs attorneys in this case and you will see them make this exact claim. If it’s a cynical claim or not, I can’t say. But it’s a very common one.

      Although recall that arbitrators — truly neutral ones — do find liability and issue damage awards in favor of employee claimants with regularity. If it’s a thumbs-up-versus-thumbs-down question, arbitration doesn’t seem to matter much. The practical difference is that awards tend to be smaller once the thumbs-up is earned.Report

      • Mike Schilling in reply to Burt Likko says:

        Peter Seitz found against baseball’s reserve clause; then he was fired and never worked for MLB again. They couldn’t have fired a judge. On the other hand, judges had recently failed to make that finding.Report

      • ScarletNumbers in reply to Burt Likko says:


        I am saddened that Wikipedia does not consider Peter Seitz notable enough for his own entry.

        However, there is someone of the same name who is a German-born graphic designer in Minnesota.

        When I looked this up, I made a connection between Peter Seitz and Donald Trump. Sort of a Wikipedia version of Seven Degrees of Kevin Bacon. I went from Peter Seitz to Seitz Decision to Marvin Miller to Michael Weiner to H Lee Sarokin (who was the judge who set The Hurricane free) to Maryanne Trump Barry (who followed Sarokin as Judge of the United States Court of Appeals for the Third Circuit) to Donald Trump (who is Barry’s younger brother).Report

    • Saul Degraw in reply to Mike Schilling says:

      There is a general feeling that arbitrator’s tend to be more favorable towards employers/corporate clients among plaintiff’s lawyers. Plaintiff’s lawyers would rather get this case in front of a jury that they can at least partially select or work with the defense in empanelling especially in a place as liberal as Alameda County.

      Arbitrators tend to be former judges and judges tend to come from corporate defense more than plaintiff’s law. Obama appointed a Federal District judge who was a big plaintiff’s lawyers and the Chamber of Commerce and Club for Growth nearly had a stroke.Report

  3. Brandon Berg says:

    But most importantly, arbitration awards are, on average, lower than the verdicts juries return.

    How much less? Is this true even after accounting for attorney’s fees?Report

    • Claims vary and methodology is sometimes suspect. But as a general proposition, the veracity of the claim is accepted wisdom and dovetails with my experience in wrongful termination cases. Plaintiff’s advocacy groups claim the haircut is anywhere from one-eighth to one-third. On wage-hour cases, the only place for discretion in a damage award is in factual findings of hours worked, and I lack enough data there to offer even the courtier’s reply I gave for termination cases. Anecdotally, my own experience dovetails with this accepted wisdom.Report

    • Stillwater in reply to Brandon Berg says:

      But most importantly, arbitration awards are, on average, lower than the verdicts juries return.

      Wouldn’t that have to be the case? The logic behind arbitration and settling out of court would be a calculus comparing the likelihood of a higher monetary award given the odds of winning vs. less money at no risk. If that’s the case, then there must be a pool of court-based awards large enough to permit statistical analysis and “bargaining”. And that bargaining would have to include total costs to both parties in the different scenarios, no? Or am I thinking about this wrong?Report

  4. Brandon Berg says:

    Of this, the lawyers themselves will share something between a third to a half, after their overhead is pro-rated into their fees; the remainder will be divided between the four partners of this law firm according to the terms of their own partnership agreement, which is no one’s business but theirs.

    I got a chuckle out of this, considering that the entire premise of the case is that how revenues are divided among the participants in an enterprise is other people’s business.Report

    • EB in reply to Brandon Berg says:

      And if employees of the law firm charge that the partnership agreement violates, say, wage-hour litigation, it will rapidly become other people’s business. Funny how that works.Report

    • I mention this for the purpose of disabusing the reader of the notion that these attorneys will be buying mansions and Bentleys with the money they took from a hapless professional football team. If it’s a share-alike partnership, on the best day I can reasonably imagine, the lawyers will get about $50,000 each for their work. A good amount of money, yes, but not an extraordinary sum. If you could do one such case a month, that’s be really good. But still not a million dollars a year.

      Nb, they’re still many months away from getting paid, the exact amount of money-in-the-lawyers’-pockets remains indeterminate, and they could have lost and took nothing.Report

      • Vikram Bath in reply to Burt Likko says:

        But they got to depose cheerleaders! (If you know what I mean.)Report

      • The Tick in reply to Burt Likko says:

        “But they got to depose cheerleaders! (If you know what I mean.)”


      • Saul Degraw in reply to Burt Likko says:


        But this is not going to be their only case for the year.

        Plaintiff’s litigation is a gamble. You can have lots of cases that pay a lot less than you expected. You can also have cases that pay a lot more than expected. There might be years without any cases paying anything.

        But all the really rich lawyers I know are plaintiff’s lawyers or doing it right can eventually lead to a solidly upper-middle class existence with year end payments per a partner of around a million dollars or more. This can be supplemented with money during the year.Report

      • Burt Likko in reply to Burt Likko says:

        You speak truth, @saul-degraw . If this was the only case this firm settled or won this year, easily the whole award of fees would go to overhead and the lawyers would take home nothing at all. But of course they’ll have dozens if not hundreds of lower-profile but substantively similar cases, likely most of which are on behalf of individuals rather than classes. If they’re good, and all available evidence suggests they are, they’re making pretty decent money.Report

      • Mike Schilling in reply to Burt Likko says:

        “Look at her; she used to be the queen of the cheerleaders.”Report

  5. Vikram Bath says:

    It’s remarkable to me how unnecessary this seems. The Raiders are not like a McDonalds where the labor costs of the least-valuable workers make a significant impact on the bottom line. Heck, they could go crazy and pay them $10/hour, and it might not make much of a difference.Report

    • Mo in reply to Vikram Bath says:

      They do it because they can and there’s a long line of people who want to be NFL cheerleaders.Report

    • Mike Schilling in reply to Vikram Bath says:

      The same is true of the refs, but the NFL was willing to ruin large parts of a season rather than pay them. Likewise, MLB players, who blackballed anyone who was poised to become a replacement player, were quite willing to work with replacement umps.Report

      • Morat20 in reply to Mike Schilling says:

        And yet they still decide they need new, tax-payer funded stadiums every 15 years or else they’ll have to move.

        Professional sports is a racket, entirely for the benefit of a handful of owners. The few really well compensated players are basically unavoidable, but quite useful — makes it look more like all that cash is going to the players.

        Only thing worse is college sports, which doesn’t even pretend to pay it’s athletes while doing things with tuition funds that taxpayers wouldn’t go for.Report

      • Saul Degraw in reply to Mike Schilling says:


        It is the same reason that theatres and universities find it easier to raise money for capital campaigns over paying actors a salary or moving people from adjunct.

        People like donating for buildings because it is tangible. You can say “I built this” or contributed to it.

        I wish I knew how to change this.Report

      • Kim in reply to Mike Schilling says:

        Do what unis do. Fund chairs.Report

  6. ScarletNumbers says:

    it was probably appropriate to alter the normal convention that a plaintiff waives a degree of her privacy by filing a public document.

    I disagree. There are plenty of famous attractive women whose last names are known.

    Of course, those women tend to be rich. As Howard Stern once said, it is a nightmare to live as a famous person who isn’t rich.

    Having said all that, I was on the cheerleaders’ side in this situation. It is scary how many people reflexively take the big corporation’s side in these situations. Ironically, most of these people would identify as Christian. BTW, telling people that they are hypocrites vis-a-vis their religion isn’t a good way of making friends.

    At least the Raiders are agreeing to keep having cheerleaders. They could have been spiteful and gotten rid of them. After all, it isn’t a requirement for a team to have cheerleaders. A number of old-school teams don’t. Out of the 12 teams that existed before the AFL, 6 of them don’t: the Bears, Browns, Lions, Packers, Giants, and Steelers.

    One recent addition to the list is the Buffalo Bills. After getting sued, they decided to disband their cheerleaders. Stay classy, Buffalo Bills.Report

    • IIRC, the Packers have never had their own cheerleaders but borrowed them from local high schools, and today use cheerleaders enrolled at UW-Green Bay who wear green and gold uniforms. Not sure what the monetary arrangement is.

      You’ve got a fair point there re: privacy and filing public documents. There needs to be a good reason why the public isn’t told what a court is doing, and that includes getting to know who gets what as a result of judicial process. I see an unusual potential for violence here justifying minimal concealment of identity, but I can see the notion that this isn’t really any more unusual than any other case where the litigants’ names are public record.Report

      • ScarletNumbers in reply to Burt Likko says:

        They were not invited to Super Bowl 45. Since they played the Steelers, it was the only Super Bowl ever with no cheerleaders.

        Maybe I am biased because the Giants are my favorite team, but I always thought that the concept of NFL teams having cheerleaders was low-class. Much like college football.Report

      • Kim in reply to Burt Likko says:

        +1. If you’re there to watch the game, watch the damn game.
        Halftime is for “having fun” and marching a band about. or other things that aren’t the game.Report

  7. Saul Degraw says:

    Interesting post Burt.

    I’ve done some research and writing on wage and hour cases when I was a summer law clerk at a firm. Those cases were with people who were wrongfully labeled assistant managers and managers for a very large retail chain. Retailers like to give out assistant manager titles like candy because they think it means they can turn someone into a salaried employee at 30,000 or so a year and have them work longer hours. As I understand it, the retailer usually if not always losses these cases. Sometimes I have to question the judgment of actual management about why they keep trying to do this because it never works.

    On the other hand, Goldman Sachs might get away with making Vice President a meaningless title:

  8. Kazzy says:

    I’ve sometimes gotten notices in the mail that I am potentially eligible to participate in a class action law suit. There always seems to be language indicating that I must actively opt-out of the suit or else I am included and forfeit future claims. How can this be? It seems kind of fished up to potentially deprive someone of their day in court because they missed a letter in the mail.Report

    • Saul Degraw in reply to Kazzy says:


      Corporate defense tried to change it to an opt-in but the Supreme Court ruled against that.

      You need to do something affirmative to have your own claim for Rule 23(b)(3) class actions.

      The reasons class actions exist for a policy reason is that often the damages are minimal for the individual but in the aggregate they are huge. Imagine there is a bank that managed to illegally take 2 dollars for every checking account it had for 24 months. This only comes out to 48 dollars per an individual but if a bank has 10 million checking accounts, it comes out to 48 million. No lawyer is going to bring a suit for 48 dollars. A law firm will bring a suit for 48 million dollars or more worth of a damages.

      A typical wage and hour claim usually only gets a few hundred to a few thousand dollars. Some extreme cases might go up to 5 figures per an individual. The small cases would still not find lawyers unless there was an aggregate because of filing fees and other costs. So workers would be out of the cash.

      The reason Corporate Defense wants to change it to an opt-in requirement is not to preserve your rights but because they know it will effectively kill a lot of claims against their clients. So you have to be a bit counterintuitive in this situation and realize that an opt-out requirement is really the best for individuals in a class, many of whom might not realize they had a claim or were being bilked. I go to a local coffee shop and a bunch of the baristas used to work for a bigger and more corporate coffee shop. They once told me that they received 500 dollar checks in the mail because of a wage and hour class action and that they did not even realize was going on.Report

      • Kazzy in reply to Saul Degraw says:

        Good points, @saul-degraw . I had a sense that that — or something similar — was the case. Still, there is something bothersome about being told that I lost my right to bring suit because I missed the mailing. Perhaps there should be three sub-groups to the class: those who opt-in, those who opt-out, and those who do not respond. And then figure out a way to work with those in the third group. Because you could also run into potential shenanigans there. “Hey… we had 10 million members of the class. 9 million of them never responded so we included them in the settlement numbers. There checks all went uncashed. I guess we’ll just keep the money. And, yes, it is purely a coincidence that they all use a PO Box in Cheyenne.”

        In the grand scheme, the system as you described is probably preferable from a strictly utilitarian standpoint. But imagine you’re the guy who lost that $2 from his bank account, causing him to go into overdraft, leading to a freeze being put on his account, and his mortgage transfer never making it through and then getting evicted and he’s told he has no ability to even pursue a case because, again, he missed a letter in the mail. You should have to actively forfeit your day in court. Full stop.Report

      • Saul Degraw in reply to Saul Degraw says:


        I am full and sincere in my belief that your way would actually result in more corporate abuse and trying to get around the Fair Labor Standards Act and getting away with it.Report

      • Kazzy in reply to Saul Degraw says:

        I don’t doubt you, @saul-degraw . As I said, from a utilitarian standpoint, it seems like the better way to set up the system. I just know if I was told that I forfeited my right to my day in court because of a letter I never opened, I’d be pissed as hell. I’ll concede that an opt-in system is not the solution. And I have no better one. There likely isn’t a way to go about it that is both practical and addresses all of the various issues.Report

  9. Nob Akimoto says:

    I was hoping you were going to announce that you’d taken some team’s cheerleaders as a client….I was going to ask if you needed an intern.Report

  10. Jim Heffman says: