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