SAN FRANCISCO (Legal Newsline) – A former San Francisco 49ers cheerleader identified in court papers as Kelsey K. is appealing the U.S. District Court for the Northern District of California’s order to dismiss her case against the National Football League.

Kelsey K. filed her motion July 25. The May 25 order to dismiss stated the plaintiff did not provide direct evidence that the NFL was involved in a conspiracy to keep cheerleaders pay low, that she suffered any direct harm and that the NFL contract was meant to control the cheerleaders.

Kelsey K. alleged the NFL has conspired to keep cheerleader’s pay under federal minimum wage and violations of antitrust laws. The lawsuit sought more than $300 million on behalf of herself and other cheerleaders across the league’s 32 teams.

Kelsey K. was part of the San Francisco 49ers Gold Rush Girls from July 2013 to February 2014. She says she received a wage of just $125 per game, or $1,250 per season, and as part of an NFL contract she signed, was not permitted to talk about pay with other NFL cheerleaders, or work with another squad due to the NFL’s no poaching rule. 

The NFL filed a motion to dismiss her claims, stating she had not provided any evidence, only allegations of conspiracy.

Kelsey K. appealed the order dismissing her suit that was delivered by Judge William Alsup. Alsup granted the dismissal and denied her motion for discovery, citing failure to provide actual evidence.

Alsup stated in the order, “For a conspiracy of the scale alleged by this complaint, one would expect at least some evidentiary facts to have been located and pled. For example, a former NFL employee might have come forward to counsel, at least as a confidential witness, to provide the details…regarding some actual conspiratorial meeting, communication, or agreement. The complaint fails to allege anything of the sort and instead rests on assertions of parallel conduct anchored in rhetoric and conclusory statements.”

The parallel conduct is a requirement to assert a claim under the Sherman Antitrust Act that Kelsey K. stated in her complaint. Alsup pointed to the inconsistencies that Kelsey K. stated in her complaint regarding the varying payments of cheerleaders for several NFL teams that are not consistent for a Sherman Act claim.

Alsup said Kelsey K. did not provide facts that defendants entered into any agreement or conspiracy to unlawfully restrain trade, or facts showing that she herself suffered any harm from the alleged controlling conduct. 

Alsup stated that there is no direct evidence to support the allegation, and it supports no implication of unlawful conduct or conspiracy. Alsup emphasized that the court “declines to infer conspiracy from the mere fact that defendants attended annual events that constitute standard fare and serve legitimate functions in the NFL."

Alsup said that Kelsey K. did not prove that the NFL’s requirement to sign a contract is a mechanism to enforce conspiracy, and without any factual allegations, Kelsey K.’s complaint does not support a credible reasoning that the NFL are liable for any unlawful agreement to prohibit cheerleaders from seeking other employment and discussing their earnings with each other.

Drexel Bradshaw of Bradshaw & Associates in San Francisco filed the lawsuit on behalf of Kelsey K. and her colleagues.

U.S. District Court for the Northern District of California case number 3:17-cv-00496-WHA

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