SEEK­ING JUS­TICE

Fired over An In­stA­grAm post And A ru­mour, for­mer SAints Cheer­leAder BAi­ley DAvis Could forCe the NFL to Ad­dress dou­Ble stAn­dArds, es­pe­CiAlly rules thAt don’t Ap­ply to plAy­ers

Ottawa Citizen - - SPORTS - ADAM KIL­GORE

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 ru­moured 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. “Clubs which em­ploy cheer­lead­ers do so be­cause they bring ex­cite­ment to fans and help strengthen com­mu­ni­ties.”

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 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. In her com­plaint, Davis’ side noted that it hoped play­ers would join her push for equal treat­ment.

“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.”

The end of Davis’ time as a Saint­sa­tion be­gan in early Jan­uary, with the cir­cu­la­tion of a ru­mour among the Saint­sa­tions that Davis had been spot­ted at a party with an NFL player in at­ten­dance. It prompted an email from Ash­ley Deaton, the team’s di­rec­tor, to the cheer­lead­ers, re­mind­ing them it was their re­spon­si­bil­ity alone to fend off play­ers.

“In the his­tory of pro­fes­sional dance teams and play­ers, the is­sue of frat­er­niza­tion isn’t a rare one,” Deaton wrote. “Af­ter all, you are beau­ti­ful and tal­ented so at­ten­tion from men is a given. I’m not sur­prised that you may be ap­proached or pur­sued, but how you re­spond sets you apart and shows us your char­ac­ter.” Deaton re­minded the team to make sure the team had a great rep­u­ta­tion “in ev­ery sense of the word.”

When Davis learned of the ru­mour, she con­tacted Deaton and de­nied it. Shortly there­after, Davis met with Deaton and Saints of­fi­cials. Pat McKin­ney, the Saints’ ex­ec­u­tive di­rec­tor of hu­man re­sources, told Davis she was ru­moured to be hang­ing with and mes­sag­ing play­ers. Bai­ley de­nied any con­tact aside from mes­sages she re­ceived on In­sta­gram. McKin­ney asked her how those play­ers had found her page; Bai­ley in­sisted she didn’t know.

At the meet­ing, Deaton threat­ened to ask play­ers about the party in ques­tion. Deaton told Bai­ley the play­ers would tell the truth be­cause they had no rea­son to lie — be­cause the play­ers faced no re­stric­tions in prox­im­ity to or con­tact with cheer­lead­ers.

Days af­ter the meet­ing, Davis posted a pic­ture of her­self wear­ing a black, lacy one-piece out­fit on her pri­vate In­sta­gram ac­count. Some­one alerted Deaton to the im­age, and she chas­tised Davis in a text be­fore mak­ing her come in for an­other sit-down.

Ac­cord­ing to the com­plaint, McKin­ney told Davis the im­age made her look guilty, that it called her char­ac­ter into ques­tion and that he would never let his grand­daugh­ters post such a pic­ture.

“They made me feel like I was just trashy and had a ter­ri­ble rep­u­ta­tion in the or­ga­ni­za­tion, for that one pic­ture,” Davis said. “And that one pic­ture made me seem like I was go­ing around with all the play­ers.”

When the Saints fired her, Davis sought le­gal re­course. The pub­lic­ity would mean her mother Lora Davis, a Saint­sa­tions coach, would for­feit her job and likely any fu­ture as a pro­fes­sional cheer­lead­ing coach. Davis be­lieved she had been wronged. She did not re­al­ize to what de­gree rules per­tain­ing to pro­mo­tion and frat­er­niza­tion dif­fered be­tween her and play­ers.

As an em­ploy­ment lawyer, Black­well fre­quently con­fronts un­writ­ten poli­cies and mind­sets that tilt work­place ben­e­fits to­ward men — the abil­ity of sales­men to ex­pand client lists and net­works through trips to a strip club, for in­stance. When Davis started shar­ing doc­u­ments with her, she was floored by how clearly writ­ten rules di­verged for cheer­lead­ers and play­ers when they were sim­i­larly sit­u­ated.

“Hav­ing it in writ­ing and hav­ing the emails and the texts from Ash­ley Deaton, it was like that Perry Ma­son mo­ment,” Black­well said. “No­body re­ally has those, and I couldn’t be­lieve it when I saw it.”

Deaton did not re­spond to a mes­sage left on her cell­phone.

“The New Or­leans Saints is an equal op­por­tu­nity em­ployer, and it de­nies that Ms. Davis was dis­crim­i­nated against be­cause she is fe­male,” Gre­gory Rouchell, a part­ner in the law firm rep­re­sent­ing the Saints, said in an emailed state­ment. “The Saints will de­fend these al­le­ga­tions in due course and in the ap­pro­pri­ate fo­rum, and the Or­ga­ni­za­tion is con­fi­dent that its poli­cies and work­place rules will with­stand le­gal scru­tiny.”

Black­well and Davis said they had heard from sev­eral for­mer NBA, NFL and NHL cheer­lead­ers with sim­i­lar con­cerns and sto­ries. But re­sponse from cur­rent cheer­lead­ers and those wish­ing to pub­li­cize their ex­pe­ri­ence has been scant, they be­lieve, be­cause cheer­lead­ers fear for their po­si­tions.

“I think they’re prob­a­bly afraid to stand up or say any­thing,” Black­well said. “I think that a lot of these cheer­lead­ers prob­a­bly want to speak out, but they don’t want to lose their jobs.”

“Any­time we’ve had a com­plaint about some­thing — whether it was makeup or hair or uni­form or any­thing — they say over and over, ‘There’s 100 girls that would do your job for free,’ ” Davis said. “Your opin­ion doesn’t mat­ter, ba­si­cally. It made me an­gry, be­cause I had worked my whole life for this job. I knew I was qual­i­fied for the job. At the same time, I wanted to keep my job. What­ever they said, went.”

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 — last week, she used a brief respite to go shop­ping for a new out­fit to wear on an­other TV in­ter­view. 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.

“I hope (peo­ple) re­al­ize this is a change that needs to hap­pen and that women shouldn’t still be treated as sec­ond-class cit­i­zens in 2018. I think be­cause this is in the NFL, and it’s such a big or­ga­ni­za­tion, they shouldn’t be al­lowed to treat their women like this. Be­cause what does that say to ev­ery­one else?”

They made me feel like I was just trashy and had a ter­ri­ble rep­u­ta­tion inthe or­ga­ni­za­tion, for that one pic­ture. And that one pic­ture made me seem like I was go­ing around with all the play­ers.

SEAN GARD­NER/GETTY IMAGES

New Or­leans Saints cheer­lead­ers must fol­low strict guide­lines to re­main em­ployed by the team.

BAI­LEY DAVIS/IN­STA­GRAM

Bai­ley Davis, pic­tured here in an In­sta­gram post, drew at­ten­tion for an­other In­sta­gram photo the Saints con­sid­ered racy.

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