A Comparative Analysis of the Lack of Contractual Protections in Female Dominated Opportunities: Collegiate Competitive Dancers and Cheerleaders Compared to NCAA Student-Athletes and National Pageant Organization Titleholders Compared to Employees/Independent Contractors

Abstract

The lack of contractual protections and regulations throughout female-dominated opportunities is abundantly clear in the collegiate competitive dance & cheer and the national pageant organization titleholders. Collegiate competitive dancers and cheerleaders have no standardized contractual requirements regarding their commitment to an academic institution or their engagement in NIL opportunities. Their NCAA recognized student-athlete counterparts, on the other hand, have extensive regulations and protections in place for both categories of contracts. In the pageant industry, pageant titleholders have no protection against the all-too-common procedural and substantive unconscionability of their service agreements, which can be found in confidentiality and arbitration clauses. In the parallel employment context, however, federal regulations and state case law alike protect members of the workforce from contracts with the same, or lower, levels of unconscionability that titleholders face.

Action is needed to address this disadvantageous contractual trend. Institutional regulatory action from the individual colleges and universities and the individual pageant organizations is an attainable first step on the road to a solution. Action from governing bodies, such as the NCAA and the Corporation for National and Community Service, is another plausible launching pad for a long-term solution. The collegiate competitive dance and cheer and the national pageant organization titleholder landscapes are just two small facets of the much broader societal issue of the lack of contractual protections in female dominated opportunities, but imminent action is necessary to begin paving a way to resolve a long-standing inequity. Further areas of research include the loose protections professional cheerleaders receive from individual contractor agreements, while performing more synonymously with their player counterparts who are highly protected by the layers of regulations surrounding employee contracts.

I.  General Introduction
Historically, women have had disproportionate access to contractual opportunities and protections.[1] An unequal economic standing characterized the early onset of the disparities in bargaining power, and scholars have argued that contracts have continuously been used to represent the domination of women.[2] Even in Contracts textbooks, women are often portrayed as powerless, weak, and uninformed, which highlights the long-held stereotypes concerning gender inequity in contracts.[3] In terms of seeking judicial action for an unfair contract, courts tend to portray women as inferior and unable to appreciate the ramifications of the contract.[4] Equal protections are needed not because of the weakness of women, but in order to hold both sides of a contract accountable.[5]
In opportunities with predominantly female participants, the lack of equal contractual representation and protections is more evident now than ever. Organizations and groups that pride themselves on providing scholarships, access, and experiences to their members fall short in providing protections in the contractual sphere.
Although some scholars argue that these inequities arise from the social contract theory (the theory that legitimizes patriarchy through the authority that men have over women in terms of political power and in terms of husbands and wives) and modern versions of the theory cannot be overcome by their patriarchal origins in today’s societal construction,[6] a thorough examination of these problems will give rise to legislative and organizational reform. By focusing on two groups needing desperate attention for the implementation of/amendment to contractual protections and regulations – collegiate competitive dancers and cheerleaders and pageantry titleholders – a light will be shed on the long-standing societal issue. It’s important to note that this comment serves to address two small facets of a much broader legal concept, and correspondingly, the propositions presented by this contribution do not conclusively solve that broader issue. An area of suggested further research for additional contributions is the professional cheerleading context because the recognition of these professional cheerleaders as employees versus independent contractors would provide the additional contractual protections that so many female-dominated opportunities so urgently need.
Collegiate competitive dancers and cheerleaders and national pageant organization titleholders serve as tangible examples of this misrepresentation and inequity in contractual regulations and protections in areas dominated by women, but these three areas are not the extent of the issue.
II.  Collegiate Competitive Cheerleaders and Dancers
A.  Problems
1.  Parallel to NCAA Athletes
Historically, dance and cheer have not been recognized as sports by a number of institutions, including the National Collegiate Athletics Association (NCAA).[7] There have been numerous arguments for competitive dance and cheerleading to be classified as sports by the NCAA, such as: 1) the athletic skill they require—core strength, acrobatic and power tumbling capabilities, advanced muscular development for stunting, endurance, and so much more, 2) the competitive nature of the activities—training an entire year to perfect two minute routines for the chance to
vie for a national title, and 3) the essential nature of the activities for
athletic departments—performing at varied athletic events, serving as university/college representatives, and leading participation in school spirit.[8]
In 2021, the International Olympic Committee (IOC)—an athletic organization like the NCAA with a rulemaking/regulatory purpose—recognized competitive cheerleading as a sport and therefore made it eligible to be included as a sport in the Olympics.[9] The IOC used a straightforward evaluation of two elements to reach the conclusion that competitive cheerleading should be deemed a sport: 1) the physicality required and 2) the competitive nature.[10] The stance in support of dance and cheerleading being recognized as sports by the NCAA demonstrates the intrinsic parallels to NCAA recognized sports—including not only the athleticism and competition, but also the required dedication, time commitment, practice schedules, community appearances, and much more. However, the contractual protections in place for NCAA student-athletes compared to collegiate dancers and cheerleaders could not be farther from parallel.
Opposition to the inclusion of dance and cheer as sports may be well grounded in cases of sideline cheerleading and recreational dance, despite their athletic nature, because those activities lack the competitive component of the framework presented by the IOC.[11] However,
the NCAA’s recognition of bowling and rifling as sports, which contain
the competitive element but lack a substantial athletic ability (especially when compared to the demanding physical strength, skill, and exertion required by collegiate competitive dance and cheer), demonstrates that a deficiency in one area can be compensated for by a large showing in
the other. So, even college dance and cheer teams that don’t compete still have a strong argument for their inclusion as NCAA recognized sports because of the innate physical exertion they demand.
Regardless of the aforementioned argument, collegiate dance and cheer teams that compete satisfy both the competitive and the athletic elements of this framework used by the IOC and should be classified
as sports teams. Competitive dance and cheer teams compete for their
own national championships during an individual season separate from the sports that they support.[12] The questions of “Where is the line drawn?” and “How far will we go to call things sports?” are answered with this
two-fold framework used by the IOC that focuses on athleticism
and competition. This comment will focus on a comparative analysis of contractual regulations in place between NCAA student-athletes
and competitive collegiate cheerleaders and dancers. It’s time that competitive collegiate dance and cheer receive the same recognition and contractual protections as their NCAA sport parallels.
(a)  Comparing the NCAA Student Athlete Contractual Framework
to the Collegiate Competitive Cheerleaders and Dancers
Contractual Framework
(1)  NIL Contracts
Prior to 2021, student-athletes were prohibited from receiving financial compensation for their name, image, likeness, performances, and abilities, and would risk their eligibility status if they did engage in those opportunities.[13] In the 2021 Supreme Court decision that gained national attention, Nat’l Collegiate Athletic Ass’n v. Alston, the Court’s finding that NCAA limits on compensation violated the Sherman Act[14] recognized the monetary value that student-athletes bring to their communities and universities.[15] After this ruling, a surplus of Name, Image, and Likeness (NIL) opportunities were on the rise for student-athletes, and the
NCAA and various states passed an uneven and inconsistent series of
laws and regulations to govern NIL opportunities, accurately deemed “patchwork legislation”.[16] The quick action from the NCAA and various states demonstrates a sense of urgency to protect student-athletes, and an understanding of the danger that could result from student-athletes engaging in NIL contracts without NCAA supervision.
After the Alston case, but prior to 2024, there were no requirements for student athletes to disclose their NIL deals and outside contractual obligations to their institution.[17] Essentially, student-athletes traversed the new, unsteady, and oftentimes confusing void of NIL opportunities absent any meaningful regulations in terms of the contractual elements of these deals, which left them vulnerable.[18] For example, large corporations could manipulate student-athletes through unregulated NIL contractual terms because the student-athletes lacked support from their institution and the NCAA when navigating the new NIL market. In turn, it became clear that NCAA action was needed to protect student athletes.[19]
In 2024, the NCAA responded by passing new disclosure regulations requiring student-athletes to inform their institutions of any NIL deals worth more than $600 no later than 30 days after entering into the agreement.[20] This disclosure was to be all-encompassing, including contact information for involved parties and service providers, terms of the arrangement (services rendered, term length, compensation and payment structure), and applicable compensation.[21] Additionally, the NCAA developed a template NIL contract to be used by all student-athletes when engaging in NIL contracts.[22] By implementing such regulations, the NCAA recognized the importance of contractual protections and regulations when student-athletes engage in potential NIL deals. Navigating contractual obligations without oversight from an institution and protection from the NCAA could be dangerous for both the student-athlete and for the NIL entity.
However, competitive collegiate dancers and cheerleaders are not afforded any of the aforementioned protections because they are not recognized as student-athletes by the NCAA.[23]
Because they have never been classified as student-athletes by the NCAA, collegiate dancers and cheerleaders have always been able to financially profit from their name, image, and likeness.[24] Some may argue that cheerleaders and dancers, therefore, have been better positioned than NCAA student-athletes because they could earn money without risking their eligibility status, both before and after the ruling in Alston. However, that is not the case. Although cheerleaders and dancers had not historically faced limitations in endorsement deals prior to the decision in Alston, Alstoncompletely leveled the landscape of financial gain in the athletic industry. The NCAA’s 2024 disclosure regulations regulate the contractual provisions and procedures when student-athletes enter into NIL deals worth $600 or more.[25] The existence of these requirements for student-athletes, and the absence of these requirements for collegiate dancers and cheerleaders, makes dancers and cheerleaders more vulnerable to large corporations seeking to circumvent the NCAA disclosure regulations.
Many collegiate dancers and cheerleaders have a large social media presence and serve as marketers for their institutions.[26] Therefore, they have the potential for greater profit margins than other sport participants.[27] Additionally, the proven success of dancers and cheerleaders in the NIL market demonstrates that their marketability is on par with the NCAA student-athletes who receive protections and regulations that govern their contractual opportunities with NIL entities. Large companies around the world have already taken advantage of the marketability that cheerleaders and dancers bring to the table for their brand, such as Amazon, Crocs, and L’Oreal.[28] For example, in 2022, two cheerleaders at the University of Indiana performed a stunt in order to retrieve a basketball that was lodged behind the rim at one of the school’s basketball games. From this single viral moment, they were offered an NIL deal from a t-shirt company.[29] These examples demonstrate that companies currently capitalize off of the benefits of signing NIL deals with collegiate cheerleaders and dancers.
These companies are able to profit off the fact that they are not bound by the NCAA’s 2024 disclosure requirements when profiting off of dancers and cheerleaders due to their lack of student-athlete status. The companies can include any lawful provisions in these contracts, and the cheerleaders and dancers have no obligation to inform their institution of the deal, regardless of the amount that the deal is worth. This current lack of contractual regulations and protections places collegiate dancers and cheerleaders in a far more vulnerable position than their student-athlete counterparts and needs immediate reform. The disparities in contractual protections and obligations for NCAA athletes and collegiate competitive dancers and cheerleaders in the NIL industry are outlined below.[30]

The NIL deals that collegiate cheerleaders and dancers sign can contain a varied array of contractual provisions – most likely drafted largely in favor of the NIL entity. NIL deals for NCAA recognized student-athletes, on the other hand, contain provisions that comply with a series of contractual regulations set in place by the NCAA, most notably those relating to disclosure.[31] The quick sense of urgency after the Alston ruling[32] that resulted in state legislation, NCAA action, and the subsequent NCAA specific disclosure requirements for NIL contracts[33]showed the recognized dangers associated with a lack of contractual regulations or protections for student-athletes engaging in NIL contracts.
Unfortunately, collegiate cheerleaders and dancers have no such disclosure requirements for their NIL contracts and are still at risk of such dangers, and remain vulnerable to risks that can arise when contracting with a party with significantly greater bargaining power, such as bad-faith terms being embedded in the agreement. Competitive collegiate dancers and cheerleaders are forced to completely rely on the goodwill of these NIL entities in terms of drafting an NIL contract that fairly and accurately protects them. In the case that an NIL entity had less-than-ideal intentions, contracting with dancers and cheerleaders would be ideal because they provide the marketability of NCAA student-athletes, while allowing the entities to escape all contractual regulations.
(2)  Commitment Contracts
The disparity in contractual protections and obligations for NCAA student-athletes versus their collegiate competitive dance and cheer counterparts is not a new phenomenon. Commitment contracts for student-athletes, National Letters of Intent (NLI), are highly regulated by the NCAA.[34]By signing an NLI, a student-athlete agrees to commit to the institution for one year in exchange for an athletic financial award package.[35] The NLI signals the end of the recruiting process for the athlete, as he/she is prevented from contacting coaches at other institutions for recruiting purposes.[36] The NLI has existing regulations for the time period of signing and the attendees at the signing.[37] Additionally, there are regulations in place regarding the head coach—the presence of the coach during the signing of the NLI, as well as the change of a head coach before the signee attends the institution and the corresponding release procedure.[38] By guaranteeing a student-athlete a scholarship for at least
one academic year and stopping the overwhelming recruiting pressure, these NLIs provide student-athletes with stability and certainty. As seen in the terms of a commitment contract, the NCAA recognizes the need for highly regulated provisions and protections for student-athletes.
However, the commitment contracts that members of collegiate competitive dance and cheer teams sign are not subject to any regulations and vary across institutions.[39] The spectrum of these contracts is not very wide, with one end consisting of teams that do not require a contract whatsoever, and the other end of spectrum consisting of teams that have
a contract vaguely laying out the expectations of the program with a maximum of one provision mirroring that of NCAA student-athlete NLIs.[40]At one end of the spectrum lies the Ohio State University Dance Team. The Ohio State University Dance Team, which has won a total of
11 national championship titles in the past seven years,[41] does not require their members to sign any form of contract when joining the team.[42] One of the most well-known and prestigious teams in all of collegiate dance has no commitment contractual protections for its members whatsoever. Similarly, the University of Central Florida’s Dance Team does not require the signing of any contract or agreement after being selected for the team.[43] These teams’ contractual protections for members serve as the polar opposite example of the highly regulated commitment contract (NLI) utilized by the NCAA for student-athletes.
In the middle of the spectrum lies contracts used by teams such as the Dallas Baptist University (DBU) Cheer Team, whose one page contract to be signed by its members briefly covers the expectations of members and dues.[44] The commitment clause in the DBU Cheer Team contract states: “I, ____agree by signing the 2024- 2025 Dallas Baptist University Cheer constitution, to commit, from July 2024 – April 2025, my time, effort, and energy to the Patriot Cheer program and DBU Athletics.”[45] This nearly one-year commitment provision is a reflection of those used for NCAA student-athletes in NLIs, and should be utilized by more dance teams around the nation to promote the stability, uniformity, and clarity for the dancers and cheerleaders and institutions alike by ensuring predictable participation and support. However, this provision is the only one within the DBU contract that comes close to mirroring a term included in student-athlete NLIs.
At the other end of the spectrum lies Tarleton State University (TSU) Cheer Team, which requires a seven-page contract to be signed by
its members – containing provisions such as social media[46], warnings/dismissal[47], and gameday appearance.[48] Similar to the DBU Cheer Team contract, the TSU Cheer Team contract contains a commitment provision, and reads as follows: “Once selected for the Tarleton Cheer Program, you must fulfill all athletic seasons, as well as any appearances until the new team has been chosen (Spring 2025 Tryouts).”[49] Yet again, although the TSU Cheer contract is seven pages long, the commitment clause is the only provision that even remotely resembles the provisions included in an NLI for an NCAA-recognized student-athlete.
Even though collegiate dance and cheer are moving towards a recruitment-based tryout process, the commitment contracts that members of dance and cheer teams sign frequently do not include a provision prohibiting the dancer/cheerleader from contacting other institutions for recruitment purposes. This puts the institution, as well as the dancer or cheerleader, at risk. The institution is at risk because it could lose a trusted member of the team, and the dancer is also at risk, who likely had placed all expectations on moving to an institution and being on a team but was dropped because of that institution’s continued recruitment. The standardized one-year agreement provision tied to the athletic aid agreement provision, as well as the provision that prohibits student-athletes from contacting coaches at other institutions for recruiting purposes (which signals the end of the recruiting process for the student-athlete to the athlete themselves and to interested institutions[50]) that are used for NCAA student-athletes should be standard provisions included in commitment contracts in the dance and cheer sphere as well.
The array of variances in contract requirements among collegiate competitive dance and cheer teams is both surprising and alarming. As the situation currently presents, these programs have a virtually unlimited ability to decide whether or not to impose contractual requirements on their dancers and cheerleaders, and what those requirements look like if they are imposed. More uniformity is needed for these dancers and cheerleaders to protect them at a comparable level as their NCAA student-athlete parallels. The distinction between the provisions included in NCAA commitment contracts as compared to commitment contracts in the collegiate dance and cheer landscape are outlined below.[51]

In October of 2024, the NCAA voted to eliminate the sixty-year-old National Letter of Intent program that created the well-known binding agreements between student-athletes and institutions – the National Letters of Intent.[52] In its place will likely be a financial aid package that is tied to a revenue sharing contract, with many of the same core provisions as NLIs.[53] This shift is notable only in minimal nature for the argument presented in this article. If the contractual requirements for NLIs are completely abandoned by the NCAA, which seems definitive, the new requirements imposed by the financial-aid agreement tied to a revenue-sharing contract for student-athletes will still be inapplicable to collegiate competitive dancers and cheerleaders, unless a proposed solution addressed in this article is adopted. No matter the contracts for NCAA student athletes, dancers and cheerleaders remain unprotected.
The disparities in contractual protections for NCAA student-athletes as compared to collegiate dancers and cheerleaders is still a prevalent issue after the removal of the NLI program. The standard contractual regulations in place by the NCAA for NLIs reflect the NCAA’s awareness of the dangers of student-athletes contracting with institutions about commitment, absent some contractual protections. It’s likely that the NCAA will ensure similar contractual regulations and protections in the new program that replaces the NLI program, while college dancers and cheerleaders will still be entering into commitment contracts with no regulations in place whatsoever to protect them (as well as the absence of commitment contracts at all for some teams).
B.  Proposed Solutions
1.  NCAA Action
Collegiate competitive dancers and cheerleaders need more contractual protections and regulations. The best way to ensure this is by recognizing collegiate competitive dance and cheer as sports under the NCAA. And the time for recognition is now.[54] Formal recognition as sports would immediately allow collegiate competitive cheerleaders and dancers the same contractual protections and regulations as their NCAA student-athlete parallels. Such protections would include the contractual provisions within the program that replaces the NCAA NLI program as well as the disclosure requirements within the NIL sector. As the landscape in collegiate athletics is constantly evolving, so should the NCAA’s recognition of what constitutes as sports. The NCAA
should adopt the IOC’s straightforward evaluation of the two elements, 1) the physicality requirement and 2) the competitive nature, to reach the conclusion that collegiate competitive dance and cheerleading should be deemed sports.
Another avenue to provide competitive dance and cheer with the recognition as a NCAA sport and the contractual protections provided to other student-athletes is through the application for recognition as an “emerging sport”, which is defined as a sport that: “(1) meets the definition of a sport, (2) is accepted and recognized by the NCAA
(as approved by its divisional governance processes) as an emerging sport for women, and (3) provides additional athletic opportunities to female student-athletes and demonstrates the NCAA’s commitment to gender equity among student-athletes.”[55]
Since 1994, The Emerging Sports for Women Program within the NCAA has been tasked with closing the participation gap in sports between men and women.[56] Five sports have since been recognized as emerging sports, including Acrobatics and Tumbling, Equestrian, Rugby, Stunt, and Triathlon.[57] Following recognition as an emerging sport, an activity can remain an emerging sport for ten years, after which the activity is evaluated to determine if it qualifies as an intercollegiate sport, which would then afford it all of the same protections as an NCAA recognized sport.[58] Although this process seems promising, the application for an emerging sport for women status for competitive cheerleading and dance would place limitations on the memberships within these teams.
The program is intended to help eliminate the disparities between men and women in terms of intercollegiate sports and is focused on females within the collegiate athletic spectrum. Although competitive dance and cheer are predominantly female activities, teams across the country do have a select number of male participants (especially in the coed cheerleading sector), which would be a large obstacle when applying to be recognized as an emerging sport for women. Therefore, it’s more promising for dance and cheer to assert the status of a sport under the NCAA, as opposed to applying to be recognized as an emerging sport, which would likely place additional restrictions on membership for these teams.
2.  Institutional Regulatory Action
As previously discussed, the recognition of collegiate dance and cheer as sports by the NCAA is a highly contested topic with substantial opposition. So far, the NCAA has refused to recognize competitive dance and cheerleading as sports, despite them containing an abundance of athleticism and competition – the elements that the IOC (a similar rule-making athletic organization)considers when evaluating what is deemed to be a sport.[59] If the NCAA continuously fails to recognize these sports, another sustainable alternative to affording these dancers and cheerleaders the contractual protections they need and deserve is through institutional regulatory action from the individual colleges and universities.
The contractual protections afforded to NCAA student-athletes through the program that replaces the NLI program should also be evaluated to provide these protections for competitive collegiate dancers and cheerleaders, but this task will be paused until that program, and its corresponding contractual provisions are released. This would be an ideal area of further research for future scholarship. For now, because the NCAA is terminating the NLI program,[60] this proposition will focus on the NIL disclosure regulations.
The movement that gained traction from 2021-2024 for more standardized regulations for student-athletes when engaging in NIL contractual opportunities resulted in the NCAA passing disclosure regulations and a template contract for all student-athletes to use when entering into NIL contracts.[61] Student-athletes are required to disclose NIL contracts worth $600 or more to their institution within 30 days of signing.[62] This regulation protects the institution and the athlete, and provides a needed additional layer of protection for the student-athletes, allowing them to not rely on the goodwill of an NIL entity alone – unlike their competitive dancer and cheerleader parallels.
Colleges and universities need to mandate these same disclosure regulations for competitive dancers and cheerleaders. The NCAA has already adopted a template contract for NIL deals which means that the heavy lifting has already been done for these colleges and universities.[63] Mandating that dancers and cheerleaders comply with these same disclosure regulations and template contract provided by the NCAA ensures that dancers and cheerleaders, who serve as public figures for the academic institution, will be protected in the contractual sphere, just like their NCAA student-athlete parallels. Colleges and universities, too, will be protected, by preventing dancers and cheerleaders with large social media followings and large marketability potentials from entering into a dangerous contract and attracting negative national attention and criticism from alumni and donors. NIL entities would no longer be able to single out competitive dancers and cheerleaders because of their large following paired with the ability to circumvent NCAA contractual regulations. The adoption of the NCAA disclosure regulations and template contract is mutually beneficial for both the institution and the dancer/cheerleader, and is a necessary active response to the evolving landscape of NIL opportunities for dancers and cheerleaders.
III.  National Pageant Organizational Titleholders
National pageant organizations make up another sector of opportunity that is dominated by female participants and has a similar lack of contractual protections. This lack of protection has put titleholders in danger during their reigns, often through provisions that prevent them from speaking publicly about their experiences. For example, in May of 2024, former Miss USA and Miss USA Teen both resigned their titles.[64] Former Miss USA confirms that she, nor the former Miss USA Teen, are permitted to speak out about their resignations or the Miss USA Organization because they are bound by Non-Disclosure Agreements (NDAs).[65] The nation is left with questions about the work environment that titleholders are exposed to.
A.  Problems
1.  Parallel to Employees/Independent Contractors
Pageant contestants and titleholders at any level are not currently considered employees by the Fair Labor Standards Act (FLSA).[66]Although some states have enacted legislation to protect child performers and entertainers, such as actors and models, those regulations are not applicable to child pageant titleholders and contestants because of the lack of an employee-employer relationship.[67] It has been reinforced that pageant contestants are not employees of their organizations and do not experience the same contractual protections as employees.[68] Their typical one-year titleholder reign under the supervision of the organization could suggest that a titleholder’s role is more parallel to an independent contractor than to that of an employee. However, the contracts that titleholders are presented with have far more obligations and restrictions than both employee and independent contractor agreements, but far less protections than either category of employment agreements.
For example, in 2004, after the Miss America Organization and the Miss North Carolina Organization became aware of the existence of nude photographs of former Miss North Carolina, Rebekah Revels, her reign was quickly terminated.[69] This termination was based upon a morals clause included in Revels’s titleholder contract,[70] which is common in the pageant industry.[71] Also commonly included within titleholder contracts is a representation clause, which gives pageant officials the exclusive right to serve as the titleholder’s agent, exposing the titleholder to issues like loss of control over personal and career decisions.[72] The morals and representation clauses that are standard in the pageant industry exceed the scope of the typical provisions within service contracts in the employment context.[73]
Once a state titleholder is named within a national pageant organization, the winner advances to compete for the national title. These deeply personal contractual provisions continue as a titleholder moves throughout this process. In the Revels v. Miss. North Carolina Pageant Organization litigation, relating to Revel’s dispute with the organization over her contractual rights relating to nude photographs, the former Miss North Carolina filled out her application to compete for the title of Miss America, which contained an arbitration clause, a good character clause, and a good prior conduct clause.[74] Despite the similarities between titleholders and independent contractors, as well as the similarities between titleholders and employees, the provisions included in titleholder contracts are far more personal and subjective, and give far more control to the organization, than those of independent contractor agreements or employee agreements.
(a)  Comparing Employee/Independent Contractor Contractual Framework to National Pageant Organizational Titleholder
Contractual Framework
(1)  Service Agreements
Historically, the distinction between independent contractors and employees has created concerns around misclassification.[75] The FLSA guarantees minimum wage and overtime pay to workers who classify as employees, but does not provide the same protections to independent contractors, which is why this distinction is so crucial.[76] The test for classification of independent contractors and employees changes frequently, with the most recent example being the shift in 2024 away from the test that was implemented in 2021.[77]With the continual back-and-forth in classification tests,[78] the contractual expectations for both employees and independent contractors have been subject to similar shifts.
Nevertheless, there are certain provisions within employee agreements, as well as independent contractor agreements, that have remained throughout both the test of time and wavering classification differences, and are considered standard provisions for their respective agreements. The main focus of this portion of the comment is not to emphasize the differences between employee agreements and independent contractor agreements. Instead, the intention is to point out that pageant titleholders are not typically considered employees or independent contractors, but yet typically succumb to the provisions common across employee agreements and independent contractor agreements alike, as well as additional extreme and deeply personal contractual provisions that neither employees or independent contractors are subject to. The disparities in contractual protections and obligations for national pageant organization titleholders, as compared to independent contractors and employees, are outlined below.[79]

The contractual terms used in standard practice by the pageant industry are personal, restrictive, and provide titleholders and contestants with the least amount of protection when compared to employment and independent contractor agreements. Because there is no standardization for the contracts (like the NDAs and the year-long service agreements) that national pageant systems require titleholders to sign, titleholders who spend years preparing for the opportunity of a lifetime have virtually no protections when entering into binding contracts related to these opportunities. The former Miss USA and Miss USA Teen, who resigned from their dream job but cannot speak about the reason for that decision because of a contract that they received no protections from, represent the desperate need for change in this area. The confidentiality clauses and the arbitration clauses present in many of these contracts need reform.
(a)  Confidentiality Clauses
Through a qualitative study, researchers at Stanford University concluded that NDAs prompt a culture of secrecy and allow businesses to avoid accountability in cases of discrimination or harassment.[80] Further, in the pageant context, when former state titleholders seek judicial action against a national pageant organization because of a contract they signed in their role as a state titleholder for that national organization, the courts have continuously found that there was only an existing contract between the state titleholder and the state organization, not the state titleholder and the national organization.[81] Although national pageant organizations have countless requirements and expectations for their state titleholders to comply with, decisions such as these by the courts result in titleholders not receiving protections prior to entering into these contracts, or after entering into these contracts and experiencing the subsequent consequences.
NDAs in the workplace are a parallel legal issue to those in the pageant landscape. In 2023, the National Labor Relations Board (NLRB) overruled controlling precedent[82] in concluding that overly broad confidentiality agreements violate the National Labor Relations Act (NLRA).[83] Under section seven of the NLRA, employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[84] Section 8(a)(1) of the NLRA makes it an unfair labor practice “to interfere with, restrain, or coerce employees” in their exercise of rights protected under section seven.[85] So, the NLRB found that overbroad confidentiality agreements interfere with rights afforded to employees under section seven which in turn violated section eight.
The NLRB’s decision centered around a hospital in Michigan, which required 11 employees to sign confidentiality and non-disparagement agreements that broadly prohibited the employee from making any statements that would disparage the hospital’s reputation.[86] Because these agreements were not specifically related to employment, but were overly broad, the NLRB concluded that these non-disparagement and confidentiality agreements violated section eight of the NLRA.[87] The NLRB’s recent shift towards a more narrow interpretation of the NLRA which focuses on employee protection emphasizes the dangers of overly broad confidentiality agreements. This danger directly mirrors the pageant sphere because NDAs and confidentiality provisions are used frequently. However, the dangers are arguably more egregious in the pageant sphere as there are no regulations or contractual protections in place for titleholders whatsoever.
The Court in the McLaren Macomb decision held that the broad prohibition within confidentiality provisions of employment agreements that prevents employees from making any statements that could disparage or harm the image of the employer and prevents the employee from disclosing the terms of the agreement were unlawful because they would coerce employees from exercising their section seven rights under the NLRA, which would in turn violate section eight.[88] This bright-line rule was established to protect employees from confidentiality provisions within employment contracts that exceeded the scope of their employment. [89]The confidentiality clause within the employee contract at issue in the McLaren Macomb decision read:
The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.[90]
The Court interprets section seven of the NLRA broadly to mean that communications with a third party are largely protected from employer retaliation, discipline, or punishment.[91] Confidentiality provisions such as the one reviewed in McLaren Macomb required the employee to broadly forfeit rights afforded by section seven of the NLRA, and the Court therefore found them unlawful.[92] Similarly, within the 2024 Miss USA Teen Pageant Agreement, the confidentiality provision reads:
I will not advertise or promote my reign as Miss Teen USA 2024, receive or generate any monetary advantage from my reign as Miss Teen USA 2024, or use or disclose to any party any information or trade secrets obtained or learned as a result of my reign as Miss Teen USA 2024.
This clause mirrors that of the employees intheMcLaren Macomb decision because of its broad prohibition of communications with third parties. If this clause was contained within an employment contract, the provision would likely be deemed unenforceable after the ruling in McLaren Macomb because of its overly broad nature. Even further, the agreement at issue in McLaren Macomb provided for monetary and injunctive sanctions if the employee violated the confidentiality or non-disparagement provisions:
In the event that Employee violates the provisions of paragraphs 6 or 7, the Employer is hereby authorized and shall have the right to seek and obtain injunctive relief in any court of competent jurisdiction. If Employee individually or by his/her attorneys or representative(s) shall violate the provisions of paragraph 6 or 7, Employee shall pay Employer actual damages, and any costs and attorney fees that are occasioned by the violation of these paragraphs.[93]
Similarly, within the 2024 Miss USA Teen Pageant Agreement is a confidentiality clause that reads: “I agree that in the event of any breach of this provision by me, I will return any Prize or other compensation (except for any hourly wages for services I performed) that I may already have received in connection with the 2024 Miss Teen USA Pageant.”[94]
The confidentiality clause utilized in the Miss USA system is typical for those used in the pageant industry. Parallel to the agreement at issue in McLaren Macomb, titleholders often agree to an overly broad confidentiality clause which allows the organization to obtain substantial compensation if the clause is breached. There are significant similarities between the confidentiality provisions in McLaren Macomb and those that are titleholders within the pageant industry sign. The protections that employees receive in these confidentiality provisions, like the ruling in McLaren Macomb,[95] should be mirrored in the pageant landscape.
Although titleholders are not employees, the legal concepts should be considered parallel because of the abundance of shared experiences – training, preparation, hard-work, time-commitment, job expectations, and travel. The NLRB recognized the danger of employment agreements with overly broad confidentiality provisions. Titleholders in national pageant organizations succumb to similar contractual provisions, but with no national board to advocate on their behalf and no legislation to protect them.
(b)  Arbitration Clauses
The Court in the Revels litigation found that a contract existed between Revels and the Miss North Carolina Organization, which contained a therefore enforceable arbitration clause. But, it also held that the application to compete in Miss America was not a contract between Revels and the Miss America Organization because both parties did not accept it as a contract, which contained a therefore unenforceable arbitration clause.[96] Therefore, unaccepted applications to compete in a pageant that contain an arbitration clause will likely be deemed unenforceable, but applications that both parties accept as a contract, as well as the titleholder service agreements themselves that contain an arbitration clause will be enforceable. This comment will focus on service agreements for titleholders signed after they have been deemed the winner of the competition.
It is important to note that these contracts are signed after the winner has already completed the competition, been publicly announced, and been given a crown and sash to represent her new title. In turn, it is a grossly inadequate solution to the issues addressed in this comment to propose that a titleholder could simply choose not to sign the contract. Years of preparation and training go into the moment a competitor becomes a titleholder, and any details of the contract she succumbs to are not revealed until she is asked to sign – directly after accomplishing her long-held dream. Pre-existing knowledge of the contract’s terms is wholly absent in the pageant industry, as many of these service agreements are inaccessible to contestants and directors. Traditionally, the contract is signed by the titleholder immediately after she is named the winner, in a whirlwind of emotions, interviews, pictures, and oftentimes without any advice from counsel.
Although arbitration clauses are generally lawful pursuant to the Federal Arbitration Act,[97] arbitration provisions can be invalidated through a successful defense of unconscionability, like other contracts. Arbitration clauses within contracts and separate arbitration agreements are both contracts in themselves, and therefore the same standard for finding contracts unconscionable as followed by most states—a required finding of both procedural and substantive unconscionability in order to deem a contract unconscionable—applies.[98] The arbitration clauses used in the pageant industry are both procedurally and substantively unconscionable because they typically limit the remedies arbitrators can award and prevent titleholders from bringing class-action lawsuits against the organization. [99]
Because most state courts require that a contract limit both substantive and procedural rights in order to be found unconscionable,[100] determining what constitutes substantive rights and procedural rights is essential to fully understanding the legality of arbitration clauses within the pageant sphere. While procedural rights concern the making of the contract, substantive rights concern the specified terms within the contract.[101] The courts consider five factors when determining if procedural unconscionability exists, including: (1) whether there was a meeting of the minds as to the formation of the agreement, (2) the experience, intelligence, age, and education of the parties, (3) the parties’ relative bargaining power and whether there was the presence or absence of meaningful choice on the part of the weaker party, (4) the conspicuousness and clarity of the contract terms and whether attention was drawn to the challenged terms when the agreement was signed, and (5) whether the party challenging the agreement was represented by counsel when the agreement was signed.[102] The harshness, one-sided framing, and oppressive nature of the terms are all considered when determining if substantive unconscionability exists.[103]
In Hooters v. Phillips, an employer, Hooters of America, Inc., brought an action to enforce an arbitration agreement against a former employee, Annette Phillips, who sued Hooters for sexual discrimination.[104] The arbitration clause used in Hooters limited the amount and type of relief that the arbitrators were allowed to award, and in turn placed the company largely in control of the potential results of the arbitration process.[105] The Court ultimately held that the arbitration clause was unenforceable for several reasons, including that 1) the agreement was so one-sided and oppressive that it was deemed unconscionable and violating public policy, and 2) Phillips did not knowingly waive her substantive rights afforded to her by Title VII of the Civil Rights Act of 1964 because the arbitration rules were not provided to her when she signed the contract containing the arbitration clause.[106]
Gradually, the Supreme Court has emphasized that the arbitration of statutory claims is lawful and enforceable when a party voluntarily agrees, but that arbitration does not “entail any consequential restriction on substantive rights.”[107] Courts have interpreted this statement by the Supreme Court to mean that arbitration clauses that limit substantive rights are unenforceable.[108] This conclusion from the Supreme Court falls in line with the substantive unconscionability prong of the majority of states’ two-pronged approach to unconscionability. .
The Hooters Court, in finding the arbitration clause substantively unconscionable, focused on the clause’s limitation of Phillips’s available remedies.[109] The Supreme Court laid down a standard of analysis in 2003 for the finding of substantive unconscionability in arbitration clauses for a limitation of remedies.[110] Where there is a claim for substantive unconscionability for a limitation on available remedies, the Court has no way of knowing if the remedies would actually be limited until an arbitrator awards remedies and damages.[111]
Therefore, arbitration must have first been compelled and have produced an unconscionable outcome before an action can even be brought to challenge an arbitration clause.[112] This “wait-and-see” approach set forth by the Supreme Court invites large, powerful companies that are contracting with weaker, more uninformed parties to impose likely unenforceable contractual obligations that best benefit the company. This standard benefits wealthy corporations but harms the layperson who is unlikely to challenge the awarding of damages and remedies by an arbitrator after the arbitration process is complete. Titleholders, when entering into binding services agreements with a large national pageant organization, experience these same inequities.
In conjunction with the Supreme Court’s decision in Pacificare Health Sys., Inc. v. Book (where the Court held that questions of limitations in the arbitration clauses were questions for the arbitrator once arbitration had been compelled, and not for the Court to decide at the outset), courts around the nation have used this wait-and-see approach for issues of unconscionability in arbitration clauses, holding that mere speculation that an agreement will be substantively unconscionable is not enough.[113] On the issue of substantive unconscionability, courts have taken a backseat approach and let better positioned parties control likely unenforceable contractual provisions. Employers can rely on the likelihood that weaker positioned parties will abide by the arbitration agreement and fail to contest the clause after an arbitrator has awarded damages and remedies. Control over the selection of the arbitrator is the single element of arbitration clauses that most courts will consider policing.[114]
Even amidst these insufficient responses to substantively unconscionable arbitration agreements by the courts, titleholders in national pageant organizations who sign contracts containing arbitration agreements that limit the available remedies have a good argument for substantive unconscionability after an arbitrator does award remedies and damages. If the damages awarded are less than the titleholder would be entitled to claim as a matter of law, then the substantive unconscionability argument is in a good position to prevail.
“I acknowledge and agree that my remedies for any breach of this agreement by JKN Universe, LLC or others, or any other claims concerning or relating to the pageant, shall be limited to a refund of
the entry fee that I paid to participate in my state”; “In no event shall I
be entitled to rescind this agreement or seek injunctive or any other equitable relief”; and “I hereby expressly agree that you and the broadcasters shall be entitled to injunctive and other equitable relief” are all phrases contained in the 2024 Miss USA Teen National Pageant Agreement and the 2024 Miss USA National Pageant Agreement[115] and are typical for titleholders in the pageant context. These provisions limit the remedies that a titleholder would be entitled to seek in a court of law and are the picture-perfect definition of substantive unconscionability in an arbitration agreement. However, titleholders in states that apply the “wait-and-see” approach would have to wait until an arbitrator awards remedies and damages to them in an arbitration proceeding before they could assert the unconscionability defense on the basis of substantive unconscionability. This is an issue because it places the burden and expectation on young women and teen girls to bring a lawsuit against a large corporate entity, who may lack the information or financial resources to do so. The wait-and-see approach to substantive unconscionability in arbitration agreements is an area of the law that should be researched further in order to determine more equitable alternatives.
Another avenue that titleholders could seek to prove substantive unconscionability in their arbitration agreements is through an emphasis on the class-action prohibition. This alternative is a means to bypass the “wait-and-see” approach of the Supreme Court and permits the preemptive decision of a court to find an arbitration agreement unenforceable. Many courts have enforced arbitration agreements with a class-action waiver in the consumer context, based on the small sum that these kinds of claims seek.[116] However, courts are more amenable to these claims of substantive unconscionability based off of class-action prohibitions in the employment context because they can range from tens to hundreds of thousands of dollars.[117] There is a general trend in case law that places the burden of proof on plaintiffs to prove that the arbitration provisions preclude effective vindication of statutory rights. For example, in Gentry v. Superior Court, the California Supreme Court held that a class-action waiver in an employment arbitration agreement could be unenforceable if it prevented employees from vindicating their statutory rights[118] The Court explained that class-action lawsuits may be necessary when employees fear retaliation for bringing individual claims, so the employment context is a place where these class-action waivers could lead to a finding of substantive unconscionability.[119]
The parallel between the arbitration clauses entered into in the employment context and the arbitration clauses entered into by pageant titleholders is undeniable. Titleholders who have spent years, and sometimes decades, preparing and training for the role, sign contracts that allow their immediate termination if the organization suddenly determines that they are no longer fulfilling their duties. The California Supreme Court is on the right track in recognizing this fear of retaliation, and arguably, that fear is arguably more intensely felt in the pageant industry than in the employment context. For titleholders, a title is not just a job, but is the culmination of years of personal sacrifice and ambition. With so much personally invested, the risk of losing the one chance to realize such a passionate pursuit carries a uniquely deep emotional weight.
The Ninth Circuit, in applying California law, has held an arbitration agreement substantively unconscionable when a class-action waiver and a limitation on remedies were both included in the clause.[120] Therefore, in the pageant industry, the frequently used limitation on remedies, combined with the frequently used limitation on class-action lawsuits, could very well lead to a finding of substantive unconscionability. As such, this approach presents an avenue to circumvent utilizing the inadequate “wait-and-see” approach suggested by the Supreme Court.[121] Titleholders should use the Ninth Circuit as a model example and urge the consideration of both elements of the remedy limitation and the class-action waiver when seeking a determination of substantive unconscionability for the arbitration clauses within their service agreements. In addition, titleholders should emphasize the similarities in the employment and titleholder contexts. This would be the most convincing argument against using the Supreme Court’s adopted wait-and-see approach for finding the standardly used arbitration clauses by national pageant organizations substantively unconscionable.
Traditionally, contracts of adhesion, where one party controls the terms in a “take-it-or-leave-it” fashion, were subject to a finding of procedural unconscionability because of their one-sided nature.[122] Although some states have moved away from a finding of procedural unconscionability in any adhesion contract, individual arbitration clauses within a contract largely still conform to this standard.[123] The most important consideration for determining if adhesion arbitration agreements in the employment context are procedurally unconscionable is the existence of an opt-out provision. Arbitration clauses, if strictly adhesive, are usually found not to be procedurally unconscionable if some form of an opt-out provision exists.[124] However, they can be procedurally unconscionable if there is not an opt-out provision included within the clause.[125] The arbitration provisions within the contracts signed by many titleholders across national pageant organizations are strictly adhesive and maintain no opt-out provision. So, such clauses are at serious risk for being deemed procedurally unconscionable. If the first prong of the unconscionability test (substantive unconscionability) is satisfied—with the arbitration agreements signed by titleholders limiting available remedies as well as the class-action prohibitions[126]—we then turn to examine the second prong of the unconscionability test (procedural unconscionability). If the second prong is satisfied—with the arbitration agreements signed by titleholders containing no opt-out provisions[127]—these provisions would likely be found unconscionable in the majority of states.
B.  Proposed Solutions
1.  Institutional Regulatory Action
The confidentiality and arbitration clauses used in the pageant industry need amendments. When evaluating the confidentiality clauses in the lens of the employment context, they would likely be deemed unenforceable because they are overly broad.[128] When evaluating the arbitration clauses in the lens of the employment context, they would likely be deemed unconscionable because of 1) the limitation on remedies the titleholder may otherwise be entitled to in a court of law, 2) the waiver of the right to bring class-action lawsuits in circumstances likely to elicit a fear of retaliation for individual suits, and 3) the adhesion language absent any opt-out provision.
Unfortunately, oftentimes courts use a “wait-and-see” approach for arbitration clauses that are challenged for being substantively unconscionable and an arbitrator must decide remedies and damages before a court can determine if substantive rights were breached.[129] This flawed approach, that favors large companies with a large amount of financial resources and is used by many courts and adopted by the Supreme Court,, is inferior to the approach used by some courts (such as the Ninth Circuit) that consider multiple elements of the arbitration clause, such as the limitation on remedies and the class-action waiver, to preemptively deem the clause unenforceable. Even the flawed approach does not diminish the errors that run fervently in the pageant industry in terms of arbitration clauses. If a titleholder did “wait-and-see”, in the majority of states, the finding of procedural and substantive unconscionability in the arbitration clauses would be overwhelming. Large national pageant organizations that impose these overly broad confidentiality clauses and unconscionable arbitration clauses on titleholders are, through contractual obligations, punishing the titleholders that work tirelessly to be crowned and awarded the opportunity to give back to their community throughout their year of service.
2.  Corporation for National and Community Service (CNCS)
The Corporation for National and Community Service (CNCS) is tasked with bolstering the public awareness of and recruitment efforts for the wide range of service opportunities for citizens of all ages, regardless of socioeconomic status or geographic location, through a variety of methods.[130] This federal agency could implement contractual protections and regulations for the titleholders of national pageant organizations that incorporate community service/volunteerism into their organization in the form of a template contract. Competitors in these organizations spend countless years preparing and perfecting their crafts for the chance to be named a titleholder – often characterized by extensive community service and volunteerism. It is time that these participants receive contractual protections from a national entity, and the CNCS is the ideal federal agency to provide just that.
In deciding whether to comply with a demand or request, CNCS officials and attorneys are encouraged to consider the following, with no one factor being dispositive: (1) whether such compliance would be unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand arose, (2) whether compliance is appropriate under the relevant substantive law concerning privilege or disclosure of information, (3) the public interest, (4) the need to conserve the time of Corporation Employees for the conduct of official business, (5) the need to avoid spending the time and money of the United States for private purposes,
(6) the need to maintain impartiality between private litigants in cases where a government interest is not implicated, (7) whether compliance would have an adverse effect on performance by the Corporation of its mission and duties, and (8) the need to avoid involving the Corporation in controversial issues not related to its mission.[131] These considerations will be the framework for the CNCS’s decision on whether to comply with the request to create a template contract for titleholders. The first consideration is the most convincing because the CNCS has already issued a template contract for a parallel initiative.
The CNCS issued a member service agreement outline for participants in AmeriCorps, which is a primary branch of the CNCS.[132] The agreement outline thoroughly describes the relationship between an individual (an AmeriCorps member) and the AmeriCorps program and sets forth requirements that must be met in order to maintain membership.[133] The adoption of a similar agreement outline for national pageant organization titleholders would reduce the burden of the CNCS in complying with this request while still benefiting the public interest and providing contractual protections and regulations for titleholders.
One area where protections could be offered to titleholders with a standardized contract template from CNCS would be in the area of termination. Termination would likely be a major point of contention for directors of national pageant organizations with the introduction of a standardized template contract from the CNCS. Again, the AmeriCorps contract template can serve as a model example. An AmeriCorps program may release a participant upon a determination by the program that the participant is unable to complete the term of service because of compelling personal circumstances.[134] A participant who is released for compelling personal circumstances and who completes at least 15 percent of the required term of service is eligible for a pro-rated education award.[135] Therefore, this provision protects members who are released after they have already completed a substantial amount of service. The benefits that titleholders would experience, if allowed this protection, could be monumental.
For example, Rebekah Revels’s reign as Miss North Carolina was terminated after the organization was made aware of nude photographs of her, based on a morals clause in her service agreement.[136] If the CNCS created a template contract that was similar to its template service agreement outline for AmeriCorps members, Revels would have been given an award if she had completed at least 15% of her service. Further, the former Miss USA (Noelia Voigt) and former Miss USA Teen (Umasofia Srivastava) who both resigned in 2024[137], months before their reign was complete, would have also received an award for their service (which was much more than the 15% threshold established in the AmeriCorps member agreement outline). Although a template titleholder agreement established by the CNCS would not erase the problem of a lack of contractual protections and regulations in titleholder agreements, especially as compared to employee/independent contractor agreements in the employment context, it would begin to bridge the gap and be a step in the right direction towards protecting titleholders.
IV.  Further Research
A.  NFL/NBA Cheerleaders
Activities that have predominantly female participants experience a historically disproportionate amount of contractual protections.[138] Unfortunately, this issue is not limited to the pageant industry and collegiate competitive dance and cheer landscapes. This comment focuses on those two areas and provides concrete solutions to help abridge parts of the problem, but the legal issue at hand is much broader. An area of future research to explore within this field of legal scholarship is the lack of contractual protections available to professional cheerleaders in the National Football League (NFL) and the National Basketball Association (NBA).
Throughout recent history, professional cheerleaders have been fighting an uphill battle in terms of wages and fair compensation. In 2014, the Oakland Raiders Cheerleaders (Raiderettes) won a $1.25 million settlement based on the cheerleaders’ claims that they were denied minimum wage and overtime pay.[139] Similarly, professional cheerleaders for the Cincinnati Bengals, New York Jets, Tampa Bay Buccaneers and Buffalo Bills filed suit soon after the Raiderettes for similar claims of lost and unfair wages.[140] It’s possible that many of these suits ended in settlements because the Department of Labor (DOL)’s classification system for independent contractors and employees[141] that existed at the time made it unlikely for the cheerleaders to prevail at trial on their assertions of employee statuses. NFL/NBA cheerleaders have historically been categorized as independent contractors as opposed to employees, unlike their professional player counterparts. However, in 2024, the DOL published an amended totality-of-the-circumstances classification test for independent contractors and employees, which evaluates the categories from a holistic lens, as opposed to the previous test that emphasized core factors.[142] This change in classification demonstrates why imminent, additional research is necessary in this area, and opens the door for professional cheerleaders to push for employee classification through efforts led by individuals, teams, or worker advocacy organizations. The time is now for professional cheerleaders to reassert their classification as an employee.
1.  Potential Solutions
(a)  DOL Classification
The ever-present misclassification concern for employees and independent contractors bleeds into the pageant sphere, and is thoroughly discussed in the previous discussion of the national title organization titleholder landscape.[143] The misclassification risk and its ramifications are just as prevalent of an issue in the discussion of NFL/NBA cheerleaders, and some of the same arguments apply. The continuously changing political landscape that is the foundation for the shifting classification analysis of the DOL presents a substantial obstacle for professional cheerleaders seeking to assert their employee status through this federal classification analysis.[144] In 2021, the Trump administration used an approach more beneficial to employers, and in 2024, the Biden administration amended this classification analysis to use an approach more beneficial to employees.[145] It’s likely that this classification analysis will change again as the political landscape shifts again. This demonstrates the need for a better, more permanent system for defining classification.[146]
Because players in the NFL and NBA are classified as employees, they have the ability to unionize and to have representatives negotiate on their behalf.[147] This has led to the creation of the NFL and NBA Collective Bargaining Agreement (CBA), which ensures that both sides – the organizations and the players – have a clear, enforceable agreement setting forth how things like salaries, dispute resolution, expectations, free agency rules, and more will be structured and run.[148] They exist to provide a structured framework that balances the interests of players and organizations while reducing ambiguity and conflict. Within the NFL CBA, for example, a standardized player employee contract is included, which all players in the league utilize.[149] The NFL CBA has specific regulations for waivers, releases, alterations to clauses, clause additions, and additional claims that may arise.[150] The additional contractual protections and regulations implemented by the NFL CBA couldn’t be further from those provided to professional cheerleaders. Unlike the highly standardized and negotiated employee contracts that professional football and basketball players sign, cheerleaders sign independent contractor agreements that vary widely across organizations and do not provide cheerleaders with even the minimum federal protections for employees. Because of their inability to unionize as non-employee contractors, professional cheerleaders do not have any entity negotiating and advocating for their protection in contractual negotiations like the CBA.
(b)  State Legislation
When the issue is viewed in light of the classification status of professional cheerleaders, it becomes increasingly apparent that widespread state legislation enacted across the nation is likely to lead to a more concrete and lasting recognition of professional cheerleaders as employees. California leads the way in this movement, and passed a bill to ensure that professional cheerleaders in the state were correctly classified as an employee and granted access to the protections within the Fair Labor Standards Act[151] – which guarantees basic protections like minimum wage and overtime pay for employees.
This third sector represents yet another opportunity with predominantly female participants that has been denied contractual protections. Professional cheerleaders should be classified as employees and guaranteed the contractual protections that stem from this status.[152] Nationwide state legislation should be utilized to obtain a more permanent employee status for professional cheerleaders. With this change in classification and recognition of employee status, professional cheerleaders would qualify under the Fair Labor Standards Act and be entitled to minimum wage and overtime pay. Even further, classifying professional cheerleaders as employees would require the use of entirely different employment contracts – those that are consistent with the provisions required under the FLSA.[153] Instead of a highly flexible agreement with virtually no protections, professional cheerleaders across the nation could be employed using employment contracts similar to those used in the NFL and the NBA CBA—with an abundance of built-in regulations and protections.
V.  Conclusion
In conclusion, women have continued to experience disparities in the contractual sphere, notably maintained through a lack of bargaining power and contractual representation.[154] Organizations and opportunities today that have predominantly female participants, and oftentimes pride themselves on providing opportunities, scholarships, resources, and
access to women, in actuality tend to have less contractual protections
for those female participants. The potential ramifications of this continued practice are dangerous. Amendments to existing contractual regulations in the realms of collegiate competitive dancers and cheerleaders, as well as pageantry titleholders, will begin a movement advocating for increased contractual protections for women in female-dominated opportunities. Although the larger legal issue at hand, a lack of contractual regulation in female-dominated opportunities, will likely persist, the solutions proposed in this contribution will leave lasting positive impacts on these two communities for generations to come.
In the competitive collegiate dance and cheer context, the disparities in contractual protections have existed since the 1960s when the NCAA created the National Letter of Intent program to provide its student-athletes with layers of contractual protections when committing to a school for their sport,[155] while collegiate competitive dancers and cheerleaders have no standardized contractual protections in their commitment agreements whatsoever. Now, that disparity is growing tremendously with the development of NIL opportunities for student-athletes. The NCAA is taking protective actions to increase disclosure requirements and contractual regulations for their student athletes participating in these opportunities.[156] Again, no parallel contractual protections exist for these dancers and cheerleaders in the ever-evolving NIL industry.[157] As it stands, these dancers and cheerleaders rely completely on the goodwill of NIL entities when entering into these binding contracts and are entitled to none of the contractual protections and regulations passed by the NCAA to protect student-athletes.
It’s time that competitive collegiate dance and cheerleading are recognized as NCAA sports because of the abundantly present elements of athleticism and competition that mirror those of NCAA recognized sports.[158] With this recognition, collegiate competitive dancers and cheerleaders would automatically receive access to the contractual protections in place for NCAA student-athletes, both in commitment contracts and in NIL opportunities. Although the National Letter of Intent program is being terminated by the NCAA,[159] its replacement is sure to provide ample contractual regulations and protections for its student-athletes, and likely will provide more of these protections than its NLI predecessor in light of the changing landscape of collegiate athletics. Recognition of collegiate competitive dance and cheer as NCAA sports is long overdue and would protect the dancers and cheerleaders as they sign binding agreements when committing to a school and when engaging in NIL opportunities.
Historically, there has been an abundance of arguments in support of dance and cheer being recognized as NCAA sports, but the NCAA still refuses to recognize them as such.[160] Therefore, it’s important to consider another alternative for collegiate competitive dancers and cheerleaders to receive the contractual protections they deserve without relying on the NCAA. Another avenue for achieving this outcome would be through institutional regulatory action. The colleges and universities themselves have an interest in protecting their dancers and cheerleaders who serve as representatives of the school and as public figures with oftentimes large social media followings and high marketability potential.[161] Specifically, these academic institutions could adopt and implement the NCAA disclosure regulations (required disclosure within 30 days of contact information for all players involved, terms of the agreement, expiration date, compensation amount, and pay structure for NIL deals over $600) and template contract for their dancers and cheerleaders.[162]
In the titleholder context within national pageant organizations, pageant winners’ service contracts run parallel to employment contracts (both in terms of employees and independent contractors).[163] Titleholders enter into contracts containing standard employment provisions, such as qualifications, termination, job description, confidentiality, and arbitration,[164] while also agreeing to abnormal, deeply personal provisions, such as marital status, pregnancy status, and sex designation at birth.[165] However, titleholders have absolutely no contractual protections when entering into their service agreements, compared to contracts signed by federally recognized employees that are governed by the National Labor Relations Board and the Fair Labor Standards Act.[166] In the employment context, the NLRB has ruled confidentiality provisions that were overly broad unlawful, and courts around the nation have found arbitration clauses unconscionable that were both procedurally and substantively unconscionable.[167] The contractual protections against certain confidentiality and arbitration clauses that exist in the employment context are not available to titleholders in the pageant industry, as they are not recognized as employees. However, the standard confidentiality clauses used in titleholder service agreements are far broader than those in the employment context, and the arbitration clauses are both procedurally and substantively unconscionable.[168]
To combat this, individual pageant organizations need to take action to reform their standard confidentiality and arbitration clauses to conform, at the least, with the protections put into place in the employment context.[169] Protecting the titleholders that spend years preparing and training for the opportunity to serve their community in such a capacity is a worthwhile investment for these organizations, and reduces their chances of negative public attention stemming from litigation over these contracts down the road.[170]
Another avenue to reform these confidentiality and arbitration clauses regularly used in the pageant industry is by regulatory action from the CNCS.[171] The CNCS could create a template service agreement for titleholders within national pageant organizations that uses fair confidentiality and arbitration clauses, since the majority of these systems have some form of community service as a substantial component of the competition.
Further research is needed to expand on this contribution to continue breaking down the legal issue of the lack of contractual protections in female-dominated opportunities. Notably, an area for future scholarly contributions is the classification of professional cheerleaders as employees as opposed to independent contractors, amidst the ever-changing political landscape of the Department of Labor.


      [1].   See Deborah Zalesne, Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum, 17 FIU L. REV. 139 (2023).
      [2].   E.g., Elizabeth S. Anderson, Women and Contracts: No New Deal, 88 Mich. L. Rev. 1792 (1990).
      [3].   Zalesne, supra note 1.
      [4].   Id.at 142.
      [5].   Id. (“In the process, however, courts often portray the parties they are trying to protect as weak, inadequate, or inferior, and unable to truly, voluntarily consent to the transaction, when in reality the protection is needed because of intentional deceptive trading practices or unintentional structural inequalities.”).
      [6].   E.g., Anderson, supra note 2 at 1794–95, 1807 (“At least three patriarchal norms presently stand in the way of achieving gender equality in contracts between men and women. First, norms of femininity tend to socialize women as individuals who do not conceive of themselves as aggressive, self-seeking bargainers, and who hence are not motivated to act on such a self-conception . . . Second, norms of heterosexual relationships frame the exchange of goods between men and women asymmetrically, giving an inevitable advantage even to men who seek an equal relationship with their female partners . . . Third, norms of heterosexual relationships construe the very acts of offer and acceptance asymmetrically.”); The social contract theory highlights the inherent biases in the initial social contracts that focused on men’s rights and freedoms.
      [7].   Mary Kate Mclean, “Cheer Is A Sport”: The NCAA, Title IX Compliance, and NIL, 31
J. Intell. Prop. L. 112, 127 (2024) (“In 1975, the OCR declared that cheerleading was not a sport and in 2000 confirmed the presumption against recognizing cheerleading as a sport for Title IX purposes.”); Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 79 (D. Conn. 2010) (“ . . . the Department of Education has not recognized competitive cheerleading to be a sport.”).
      [8].   Mclean, supra note 7, at 126–27.
      [9].   Id. at 129 (2024) (“Competitive cheerleading has lived up to the standards of other intercollegiate athletics. Recognition as a sport has been given by other athletic organizations. Specifically, in 2021, the International Olympic Committee (“IOC”)—another governing body of athletics—recognized competitive cheerleading as a sport. If the IOC—the regulator of international sports—recognizes its physicality and competitiveness, why can’t the NCAA?”).
    [10].   Id. (“Athletic skill and competition are essential in defining a sport, and competitive cheerleading inherently meets these standards where skill and athleticism are judged at competitions.”).
    [11].   Id. at 127 (“Now cheerleading has ‘evolved into a competitive display of athleticism that mirrors that of already-existing varsity sports.’”). Implied by this statement by
the IOC is the assumption that the athleticism and the competitive nature are what make cheerleading a mirror of varsity-sports and lacking either element would prevent the activity from mirroring a varsity-sport.
    [12].   Id. at 136 (“The NCAA should recognize competitive cheerleading—an already
well-established activity at many universities—as a sport. The sport is more than sideline support of other sports, as it has evolved into a physical, skill-driven, hard, and competitive activity with championships of its own.”).
    [13].   See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 104 (2021).
    [14].   15 U.S.C.A. § 1 (The Sherman Act prevents restraints on trade to promote a fair and competitive marketplace).
    [15].   Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S., at 107 (“By permitting colleges and universities to offer enhanced education-related benefits, its decision may encourage scholastic achievement and allow student-athletes a measure of compensation more consistent with the value they bring to their schools.”).
    [16].   Mclean, supra note 7, at 125.
    [17].   See Bradley Kilborn, Taming the Wild West: The Time Is Now for Congress to Intervene in Name, Image, and Likeness Deals for Collegiate Athletes, 11 Belmont L. Rev. 132, 163 (2023) (In 2023, there were no disclosure requirements for student-athletes and no entity with oversight over the contractual details of these NIL opportunities.).
    [18].   Id. at 165 (“[t]here is a substantial void in regulating the NIL market for college athletics, and a recognizable need for meaningful uniform guidelines to provide athletes and institutions with a framework to productively operate in this new market.”).
    [19].   See Id.
    [20].   Michael S. Horvath II, NCAA Rolls Out 2024 NIL Rules Enhancing Athlete Protections and Market Transparency, Gross McGinley LLP Blog (Mar. 12, 2024),[https://perma.cc/‌57LP-SW5Y].
    [21].   Id.
    [22].   NCAA Contracts Best Practices (July 29, 2024), [https://perma.cc‌/W6RG-8VBX].
    [23].   Mclean, supra note 7, at 129.
    [24].   See Tess DeMeyer, The College Athletes Who Are Allowed to Make Big Bucks: Cheerleaders, N.Y. Times (Nov. 29, 2020), [https://perma.cc‌/FRS5-QCAQ]; Mclean, supra note 7, at 132 (“Because cheerleading has not been governed by the NCAA, the intellectual property rights of these student-athletes has never been limited.”).
    [25].   Horvath, supra note 20.
    [26].   Mclean, supra note 7, at 132.
    [27].   Id. at 133.
    [28].   Mclean, supra note 7, at 133 (“Large brands, including Amazon, Crocs, and L’Oreal, are currently signing endorsement deals with cheerleaders. Given their image and large number of followers on social media, big businesses are seeing the benefits of striking deals with these student-athletes and public figures.”).
    [29].   Id.
    [30].   Horvath, supra note 20; NCAA, Contracts Best Practices, supra note 22; Meghan Durham Wright, Division I Council approves NIL disclosure and transparency rules, NCAA (Jan. 10, 2024), [https://perma.cc‌/MX4X-E87Q].
    [31].   Horvath, supra note 20.
    [32].   Nat’l Collegiate Athletic Ass’n v. Alston, supra note 13.
    [33].   Mclean, supra note 7, at 125 (“Additionally, state legislatures began to pass laws allowing for NIL activities creating ‘patchwork legislation.’ In response, the
NCAA issued an interim NIL policy emphasizing its commitment to allowing NIL opportunities but maintaining amateurism. The policy allows student-athletes
to participate in NIL opportunities that are consistent with their state laws.”);
Horvath, supra note 20; NCAA, Contracts Best Practices, supra note 22.
    [34].   NCSA College Recruiting, National Signing Day, [https://perma.cc‌/MM58-CDJP]; Quick Reference Guide to the NLI, [https://perma.cc‌/M6XD-YSBK].
    [35].   Quick Reference Guide to the NLI, supra note 34.
    [36].   NCSA College Recruiting, supra note 34.
    [37].   Id.(The NLI must be signed within the designated signing period for the sport and must be signed by a parent or guardian in addition to the athlete if the athlete is under the age of 21).
    [38].   Id.(“Although the signing of an NLI off campus is permitted, if an NLI is signed off-campus, the head coach cannot be present”); Quick Reference Guide to the NLI, supra note 34.
    [39].   See supra Section II.A.1(a)(1).
    [40].   See NCSA College Recruiting, supra note 34.
    [41].   The Ohio State University Spirit Program Homepage, Ohio State Official Athletics Website, [https://perma.cc‌/5ZCT-BPWG].
    [42].   E-mail from Melissa McGhee, Spirit Program Director & Dance Head Coach, to Abigail Church (Oct. 21, 2024, at 08:25) (on file with author) (“We don’t actually have a contract . . . I just do program standards and ask them to be good people!”).
    [43].   E-mail from Linda Gooch, University of Central Florida Cheerleading Head Coach, to Abigail Church (Oct. 21, 2024, at 12:51) (on file with author) (“Our team members do not sign contracts.”).
    [44].   Dallas Baptist University Cheer Team Commitment Contract, signed by Taylor Callie, Head Coach (on file with the author).
    [45].   Id.
    [46].   Blaine Hamilton, Tarleton State University Cheer Team Contract (“No one may speak “for” the program via social media without the consent of the Coaching Staff.”).
    [47].   Id., (“If a practice, game, fundraiser, or other event is missed or study hall is not completed for the week without approval, a monetary fine and‌/or disciplinary action will be required as well as a meeting with the Coaching Staff. If you quit the team or are dismissed from the team before the season is over, all team-issued attire and gear must be returned within 7 days. Failure to do so will result in a hold being placed on your account, which will prevent you from registering for classes or transferring to another institution. A $150 fee will be charged if you choose to quit the team before the end of the season. Excessive absences and‌/or being late from‌/for events can result in suspension or dismissal
from the program. Consuming alcohol, illegal substances, smoking (includes vapes,
e-cigarettes, and JUULs), or using profanity while in uniform or attire that connects you with the Tarleton Cheer Program will result in immediate dismissal.”).
    [48].   Id., (“Females will wear game day make-up (full face, smokey eyes and red lipstick- specific color) at all appearances, games, etc. unless stated otherwise. . .Hair will be specified for each event. Males will have appropriately groomed hair and well-maintained facial hair. Grooming‌/appearance standards are subject to change, at the discretion of the coaching staff.”).
    [49].   Id.
    [50].   See NCSA College Recruiting, supra note 34.
    [51].   Id.
    [52].   See Nick Wilson, NCAA votes to eliminate national letters of intent: Here’s what to know, News-Press, (Oct. 9, 2024), [https://perma.cc‌/FX46-6SJF]; See also, The Associated Press,, NCAA Does Away with Signing Day, Altoona Mirror, (Oct. 17, 2024), [https://perma.‌cc/MP8Y-U5UB]; Eli Lederman, NCAA Approves Elimination of National Letter of Intent Program, ESPN, (Oct. 9, 2024) [https://perma.cc‌/739P-QQJT ]; NCSA College Recruiting, NCAA Eliminates National Letter of Intent (NLI). What Now?, NCSA College Recruiting [https://perma.cc‌/FX46-6SJF].
    [53].   See generally, Id.
    [54].   See Biediger, 728 F. Supp. 2d at 64 (In 2010, the Court held that “[T]he activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”, which is no longer true with the advancements in the dance and cheer industry in terms of recruiting, national competitions, NIL deals, etc.).
    [55].   Alexandra Zdunek, Who Knows the Difference Between Competitive Cheerleading, Sideline Cheerleading, Acrobatics and Tumbling? Why This Distinction is so Important for Title IX, 31 Marq. Sports L. Rev. 175, 189 (2020); See Emerging Sports for Women,, NCAA, [https://perma.cc‌/M4XD-J8W8].
    [56].   Emerging Sports for Women, supra note 55.
    [57].   Id.
    [58].   Zdunek, supra note 55 at 188; Erin E. Buzuvis, The Feminist Case for the NCAA’s Recognition of Competitive Cheer As an Emerging Sport for Women, 52 B.C.L. Rev. 439, 455 (2011) (“Emerging sports become NCAA championship sports if at least forty member institutions add the emerging sport within a ten-year period, though extensions have been granted for sports that show “steady progress” toward that goal. Several sports on the first list of emerging sports have gone on to become official championship sports, including the following: rowing (1996), ice hockey (2000), water polo (2000), and bowling (2004).”).
    [59].   Mclean, supra note 7 at 129–30 (“Athletic skill and competition are essential in defining a sport, and competitive cheerleading inherently meets these standards where skill and athleticism are judged at competitions.”).
    [60].   See generally, Wilson, supra note 52.
    [61].   Kilborn, supra note 17 at 163–64 (“Currently, all the NCAA requires for NIL deals is that the athlete must perform in some capacity in return for compensation. While this cannot be related to on-field performance, it can be as simple as an autograph signing or social media post. At this point, there is no entity with any oversight over the substance and details of the NIL deals . . . [I]ncreased transparency would assist student-athletes and their parents in making the most informed decision possible when selecting an institution. This would prevent any kind of fraudulent promises or attempted inducements because these incoming student-athletes would be provided with legitimate information about what their fair market value is across the collegiate athletic landscape.”); Horvath, supra note 20; NCAA Contracts Best Practice, supra note 22.
    [62].   Horvath, supra note 20.
    [63].   NCAA Contracts Best Practices, supra note 22.
    [64].   Anna Lazarus Caplan, Former Miss USA Noelia Voigt Demands Pageant Lift Her NDA as CEO Pushes Back on ‘False Allegations, People, (May 30, 2024), [https://perma.cc/‌PG3U-WMBP].
    [65].   Id. (“I am constrained by a non-disclosure agreement (NDA) and would like to emphatically assert that, following the unauthorized circulation of my resignation letter, [Miss USA President and CEO] Laylah Roses’ assertions in her recent statement that contradict my experience after three weeks of unanswered resignation notification are unequivocally inaccurate,” Voigt, 24, wrote on Instagram on May 30.” I strongly encourage her to waive our NDA to enable me to speak,” she added.”).
    [66].   Lindsay Lieberman, Protecting Pageant Princesses: A Call for Statutory Regulation of Child Beauty Pageants, 18 J.L. & Pol’y 739 at 758 (2010) (“Although pageant contestants practice and perform for many hours a day and collect large sums of prize money, they are not considered “employed” pursuant to the FLSA.”).
    [67].   Id. at 765 (“The scope of the term “child entertainer” can and should include pageant contestants, despite the lack of a traditional employee-employer relationship.”).
    [68].   Id. at 768.
    [69].   Amanda Harmon Cooley, Uneasy Lies the Tiara: Crowns, Contracts, and the Rebekah Revels Litigation, 15 Wm. & Mary J. Women & L. 91, 94 (2008); See also, Revels v. Miss Am. Org.,, 641 S.E.2d 721, 721 (N.C. Ct. App 2007); Revels v. Miss N.C. Pageant Org., 627 S.E.2d 280, 282 (N.C. Ct. App. 2006); Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F. Supp. 1348 (S.D.N.Y. 1982).
    [70].   Revels v. Miss N.C. Pageant Org., supra note 69, at 282 (Revels’ contract with the Miss North Carolina Organization “provided that Revels had not ‘done any act or engaged in any activity which could be characterized as dishonest, immoral, immodest, indecent, or in bad taste.” This morals clause was supported by an enforcement clause, which stated “..[that] if any of [Revels’s] representations proved false, the contract would be terminated and Revels would forfeit her rights as Miss North Carolina.”).
    [71].   Cooley, supra note 69, at 98.
    [72].   Id.
    [73].   See generally Robert W. Wood, Drafting Independent Contractor Agreements, Wyo. Law.,
Oct. 2010, at 53,; Mary V. Gambardella, Negotiating and Drafting Employment Agreements, 2010 Edition, 2010 WL 2831589 at 1; Miss USA Local, State, and National Titleholder Agreements‌/Entry Forms,- (Oct. 17, 2024)(on file with author); Email from Lisa Burnette, National Field Director, Distinguished Young Women, to author (Oct. 16, 2024,11:36 CT ) (on file with author).
    [74].   Cooley, supra note 69, at 100 (“Revels, as a pageant contestant, was prohibited from “engaging in any activity that could reasonably be characterized as dishonest, immoral or indecent and from conducting [herself] in any manner that is inconsistent with the standards and dignity of the Miss America Program.””).
    [75].   Kati L. Griffith, The Fair Labor Standards Act at 80: Everything Old Is New Again, 104 Cornell L. Rev. 557, 568 (2019) (“[O]ne of the first proposed versions of the FLSA, introduced in 1937, explicitly recognized that a major enforcement challenge would be that some businesses would misclassify true employees as “independent contractors,” thereby erroneously depriving workers of the FLSA’s wage-and-hour protections.”).
    [76].   Id. at 587.
    [77].   Jessie O’Brien, The Back-and-Forth Battle of Defining Independent Contractors, 89 Mo. L. Rev. 719, 726–29 (2024), (The classification test issued in 2021 by the Department of Labor sets forth factors to consider when classifying independent contractors and employees, including: (1) the degree of control over the worker, (2) the worker’s opportunity for profit or loss, (3) the investment by the worker in the business’ facilities, (4) the permanency of relation between the worker and the employer, and (5) the skill required in the worker’s claimed independent operation, with factors 1) and 2) as “core factors”. The classification test issued in 2024 by the Department of labor uses a totality-of the circumstances test considering: (1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the employer; (3) degree of permanence of the work relationship; (4) nature and degree of control; (5) extent to which the work performed is an integral part of the employer’s business; and (6) skill and initiative.).
    [78].   Id.
    [79].   See generally Wood, supra note 73.
    [80].   The Clayman Institute for Gender Research, Assessing the Impact of Non-Disclosure Agreements and Forced Arbitration Clauses on Survivors of Workplace Sexual Harassment and Discrimination, (Stanford Univ. 2024), [https://perma.cc‌/TEZ2-9ZQM] (“By their very existence, NDAs contribute to a culture of secrecy, hindering the accountability of perpetrators and impeding transparency in cases of harassment and discrimination. Our findings ought to prompt lawmakers and organizations to consider whether the distress NDAs impose on survivors outweighs their benefits.”).
    [81].   See Revels v. Miss N.C. Pageant Org., supra note 69; Gianna Enterprises v. Miss World (Jersey), supra note 69.
    [82].   Susan L. Nardone & Zachary B. Posess, Non-Disclosure and Non-Disparagement Provisions Under Scrutiny Recent Case Law, Legislation Affecting Employment Agreements, N.J. Law.,
June 2023, at 24, 25 (“In Baylor University Medical Center and IGT d‌/b‌/a International Game Technology, a Republican-led Board held that severance agreements containing non-disclosure and non-disparagement clauses were not unlawful.”).
    [83].   See generally McLaren Macomb and Local 40 RN Staff Council, Office and Professional Employees, International Union (OPEIU), AFL–CIO, 372 NLRB 58, 1 (2023).
    [84].   Martha Burke, National Labor Relations Board: Non-Disparagement, Confidentiality Provisions May Violate Concerted Activity Rights, A.B.A., [https://perma.cc‌/BQV3-5T3Q];
29 U.S.C. §§ 151–69 (Section seven reads “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.”).
    [85].   29 U.S.C. §158 (a)(1).
    [86].   See McLaren Macomb, supra note 83 at 2..
    [87].   Id.; 29 U.S.C. §§ 151–69, supra note 83.
    [88].   See, McLaren Macomb, supra note 83 at 4.; See Burke, supra note 83; 29 U.S.C.
§§ 151-–69, supra note 84.
    [89].   See generally, McLaren Macomb, supra note 83.
    [90].   McLaren Macomb, supra note 83 at 2.
    [91].   Id. at 9 (“Accordingly, Section 7 affords protection for employees who engage
in communications with a wide range of third parties in circumstances where
the communication is related to an ongoing labor dispute and when the employees’ communication is not so disloyal, reckless, or maliciously untrue to lose the Act’s protection.”) When this statement, by the NLRB in the employment context, is viewed in light of the Miss USA and Miss USA Teen resignations in the pageantry context, it is clear that the confidentiality provisions commonly used in the pageant industry violate the NLRB’s broad protection of communication with third parties in circumstances related to an employment dispute and should be amended accordingly.
    [92].   Id. at 1.
    [93].   Id. at 2.
    [94].   2024 Miss USA Teen Agreement ¶ 4.2 (Jan. 15, 2024).
    [95].   McLaren Macomb, supra note 83 at 1 (“The Board accordingly analyzed the terms of the proffered agreement, and found that the agreement coerced employees from exercising their Section 7 rights because it broadly prohibited them from making statements that could disparage or harm the image of the Respondent and further prohibited them from disclosing the terms of the agreement. The Board observed that the agreement provided for substantial monetary and injunctive sanctions against the employee in the event the nondisparagement and confidentiality proscriptions were breached.”).
    [96].   Revels v. Miss N.C. Pageant Org., 627 S.E.2d 280, 283 (N.C. Ct. App. 2006) (discussing arbitration analysis); Cooley, supra note 69.
    [97].   9 U.S.C. § 1 et seq. (2006); Charles A. Sullivan, The Puzzling Persistence of Unenforceable Contract Terms, 70 Ohio St. L.J. 1127, 1152-53 (2009) (“A second example of the use of clauses known to be unenforceable as written arises in the context of agreements requiring arbitration of any dispute between the parties. The Federal Arbitration Act makes such clauses generally enforceable, but that does not mean that all provisions in arbitration agreements are valid.”).
    [98].   Susan Landrum, Much Ado About Nothing?: What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements, 97 Marq. L. Rev.
751, 766–67 (2014) (“[G]enerally, arbitration agreements are to be held to the same legal standards as other types of contracts”; “Most states’ unconscionability doctrines require both procedural unconscionability and substantive unconscionability before a court will refuse to enforce a contract.”).
    [99].   Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68 (2010).
  [100].   Landrum, supra note 98 at 758 (“Because arbitration agreements are contracts, the rules that apply to other contracts should also apply to arbitration agreements.”).
  [101].   Id. at 769.
  [102].   Id. at 768-69.
  [103].   Id. at 769. (“In contrast to procedural unconscionability, substantive unconscionability refers to the contract’s specific terms. A contract may be substantively unconscionable if it includes harsh, one-sided, or oppressive terms.”).
  [104].   See generally Hooters of Am., Inc. v. Phillips, 39 F. Supp. 2d 582 (D.S.C. 1998), aff’d and remanded, 173 F.3d 933 (4th Cir. 1999).
  [105].   Margaret M. Harding, The Redefinition of Arbitration By Those With Superior Bargaining Power, 1999 Utah L. Rev. 857, 894 (1999) (“The conclusion is inescapable that Hooters required arbitration with its many attributes, not because it thought it was a better or more appropriate dispute resolution process, but because it could control the process to its own advantage.”); See generally Hooters of Am., Inc., 39 F. Supp. 2d at 590-99.
  [106].   Harding, supra note 105 at 894.
  [107].   Id. at 876; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) (“By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.”).
  [108].   Harding, supra note 105 at 880–81.
  [109].   Hooters of Am., Inc., 39 F. Supp. 2d at 600 (“remedial authority of the Adjudication Panel extends to the full scope of (a) the relevant state and federal statutory provisions, or (b) the scope of these Rules, whichever is less.”).
  [110].   See generally PacifiCare Health Sys., Inc. v. Book, 123 U.S. 1531 (2003).
  [111].   Id. at 1532 (“Since the Court does not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties’ agreement unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract. It would be premature for the Court to address them; the proper course is to compel arbitration.”).
  [112].   Id.
  [113].   Martin H. Malin, Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation, 11 Emp. Rgts. & Emp. Pol’y J. 363, 376–77 (2007) (“The Eighth and Eleventh Circuits have refused to invalidate contractual provisions limiting the statutory right of a prevailing plaintiff to recover attorney fees, reasoning that how
the arbitrator will adjudicate the issue is too speculative to justify the conclusion that arbitration will not allow plaintiffs to vindicate effectively their statutory rights.”).
  [114].   Id. at 377.
  [115].   2024 Miss USA Teen Agreement ¶ 25 (Jan. 15, 2024) ;2024 Miss USA National Pageant Agreement ¶ 23.
  [116].   Malin, supra note 113 at 387; Discover Bank v. Superior Court, 36 Cal. 4th 148, 162–63 (Cal. 2005).
  [117].   Malin, supra note 113 at 387–88 (“Typically employment claims, particularly claims of wrongful termination, seek damages in the tens or hundreds of thousands of dollars, a far cry from the consumer claims in the low hundreds of dollars.”).
  [118].   Gentry v. Superior Court, 42 Cal. 4th 443, 460–61 (Cal. 2007).
  [119].   Malin, supra note 113 at 389; Gentry, 42 Cal. 4th at 460–61.
  [120].   Malin, supra note 113 at 388; See Ingle v. Circuit City Stores, Inc., 328 F.3d 1165
(9th Cir. 2003).
  [121].   Malin, supra note 113.
  [122].   John E. Murray, Jr., Revised Article 2: Eliminating the “Battle” and Unconscionability, 52
S. Tex. L. Rev. 593, 610 (2011) (“Procedural unconscionability generally takes the form of a contract of adhesion, that is, a contract drafted by the party of superior bargaining strength and imposed on the other, without the opportunity to negotiate the terms.”).
  [123].   Kilgore v. KeyBank, Nat. Ass’n, 673 F.3d 947, 963–64 (9th Cir. 2012); Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1200–01 (9th Cir. 2002); Alvarez v. T–Mobile USA, Inc., Civ. No. 2:10–2373 WBS GGH, 2011 WL 6702424, at *6 (E.D.Cal. Dec. 12, 2011); Carey v. Uber Technologies, Inc., No. 1:16-CV-1058, 2017 WL 1133936, at *8 (N.D. Ohio Mar. 27, 2017).
  [124].   Kilgore v. KeyBank, 673 F.3d at 963–64. (9th Cir. 2012) Id.
  [125].   Steele v. Am. Mortg. Mgmt. Servs., No. 2:12-CV-00085 WBS, 2012 WL 5349511, at *5 (E.D. Cal. Oct. 26, 2012) (“Unlike other arbitration agreements that courts have not found to be unconscionable, the Agreement does not provide any “opt-out” provisions.”); See Kilgore, 673 F.3d at 963–64 (holding that procedural unconscionability did not exist when an arbitration agreement within a contract granted student loan applicants sixty days to opt-out of the arbitration provisions).
  [126].   Malin, supra note 113 at 136; Ingle, 328 F.3d at 1166(The Supreme Court has adopted the “wait-and-see” approach for determining substantive unconscionability, while some states utilize a more holistic analysis for making the determination).
  [127].   Steele v. Am. Mortg. Mgmt. Servs., No. 2:12-CV-00085 WBS, 2012 WL 5349511
(E.D. Cal. Oct. 26, 2012).
  [128].   See supra Section II.A.1.a.1.a.
  [129].   See supra Section II.A.1.a.1.b.
  [130].   42 U.S.C.A. § 12651d (“. . .the National and Community Service Trust Act of 1993 [Pub.L. 103–82, Sept. 21, 1993, 107 Stat. 785; see Tables for classification] which created the Corporation for National and Community Service. The Corporation was designed to involve Americans of all ages and backgrounds in community projects to address many of our Nation’s most important needs—from educating our children to ensuring public safety to protecting our environment. It was chartered to foster civic responsibility, strengthening the ties that bind us together as a people, while providing educational opportunity for those who make the commitment to serve.”).
  [131].   45 C.F.R. § 1201.9 (After making these considerations, the statute also provides that the CNCS must consider additional safeguards before complying with a request: “Among those demands and requests in response to which compliance may not ordinarily be authorized are those when compliance would (1) Violate a statute, a rule of procedure, a specific regulation, or an executive order; (2) Reveal information properly classified in the interest of national security; (3) Reveal confidential commercial or financial information or trade secrets without the owner’s consent;
(4) Reveal the internal deliberative processes of the Executive Branch; or (5) Potentially impede or prejudice an ongoing law enforcement investigation.”).
  [132].   AmeriCorps, AmeriCorps Member Service Agreement Outline, [https://perma.cc/RQ8Y-F7R6].
  [133].   Id.
  [134].   45 C.F.R. § 2522.230 (“An AmeriCorps program may release a participant upon a determination by the program, consistent with the criteria listed in paragraphs (a)(6) and (a)(7) of this section, that the participant is unable to complete the term of service because of compelling personal circumstances, if the participant has otherwise performed satisfactorily and has completed at least fifteen percent of the agreed term of service.”).
  [135].   Id.
  [136].   See Revels v. Miss Am. Org., 182 N.C. App. 334, supra note 69; See Revels v. Miss N.C. Pageant Org., 627 S.E.2d  at 282, supra note 69.
  [137].   Caplan, supra note 64 .
  [138].   Zalesne, supra note 1, at 139 (“Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles.”).
  [139].   Robin Abcarian, Cheerleaders’ Wage-Theft Lawsuit to Cost Oakland Raiders $1.25 Million, LA Times (Sep. 4, 2014), [https://perma.cc‌/QCM4-TJW3] (“. . .two former cheerleaders alleged that the Raiders broke a raft of state labor laws, including failing to pay minimum wage, withholding wages for months and refusing to reimburse cheerleaders for their business expenses.”).
  [140].   Id.(“Similar cases are pending against the Cincinnati Bengals, the Buffalo Bills, the Tampa Bay Buccaneers and the New York Jets.”).
  [141].   Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 89 Fed. Reg. 7, 1638 (Jan. 10, 2024) [https://perma.cc‌/B7MT-N2G7].
  [142].   Id. at 1739 (“Of particular note, the regulations set forth in this final rule do not use ‘‘core factors’’ and instead return to a totality-of-the-circumstances analysis of the economic reality test in which the factors do not have a predetermined weight and are considered in view of the economic reality of the whole activity.”).
  [143].   See discussion supra Section III.A.1.a.
  [144].   O’Brien, supra note 77 at 737–38.
  [145].   Id.
  [146].   Id. at 738 (“The political divide only makes defining an independent contractor more complicated and further proves the need for certainty. Determining who is, or who is not, protected under the FLSA should not be at the expense of who is in command from the Oval Office.”).
  [147].   NFL Collective Bargaining Agreement, NFLPA (Mar. 15, 2020), [https://perma.cc/‌69CF-UVBM].
  [148].   Id.
  [149].   Id. at 9.
  [150].   Id. at 28–31.
  [151].   Cal. Lab. Code § 2754(“Notwithstanding any other law, for purposes of all of the provisions of state law that govern employment, including this code, the Unemployment Insurance Code, and the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), a cheerleader who is utilized by a California-based professional sports team directly or through a labor contractor during its exhibitions, events, or games, shall be deemed to be an employee.”).
  [152].   89 Fed. Reg. 7, supra note 141.
  [153].   Id.
  [154].   See Anderson, supra note 2 at 1807 (In the marriage context, “]patriarchal norms], not to mention the unequal bargaining power of women derived from their unequal economic standing, make it folly for feminists to seek marital equality solely through the perfection and gender-neutralization of the marriage contract.”).
  [155].   NCSA College Recruiting, supra note 34; Quick Reference Guide to the NLI,, supra note 34; See discussion supra Section II.A.1.a.2.
  [156].   Horvath, supra note 20 (“Student-athletes will be required to disclose to their universities any information on NIL deals that are $600 in value or greater within
30 days of entering the agreement. This entails providing contact information for all players involved, including third-party service providers. The documentation must contain the terms of the agreement (including services rendered), expiration date, compensation amount, and pay structure.”).
  [157].   See discussion supra Section II.A.1.a.1.
  [158].   Mclean, supra note 7 at 129 (“Athletic skill and competition are essential in defining a sport, and competitive cheerleading inherently meets these standards where skill and athleticism are judged at competitions.”).
  [159].   Wilson, supra note 52.
  [160].   See discussion supra Section II.A.1.
  [161].   Mclean, supra note 7 at 132 (“The case for recognition of “Cheer is a Sport” is strengthened because NIL deals are equally possible for cheerleaders as other student-athletes. Cheerleaders are already an essential part of the athletic department profits and serve as marketers for the university’s athletic programs. This marketability in itself represents their ability to profit from their NIL.”); See discussion supra Section II.A.1.a.1.
  [162].   See discussion supra Section II.B.2.
  [163].   See discussion supra Section III.A.1.
  [164].   Id.
  [165].   Id.
  [166].   See Griffith, supra note 75 at 587; Charlotte S. Alexander & Nathaniel Grow, Gaming the System: The Exemption of Professional Sports Teams from the Fair Labor Standards Act, 49 U.C. Davis L. Rev. 123, 129–30 (2015) (“As described by the President, the legislation’s twin requirements of a minimum hourly wage and premium overtime
pay were intended to provide workers with “a fair day’s pay for a fair day’s work.””); See generally, McLaren Macomb, 372 NLRB.
  [167].   McLaren Macomb, 372 NLRBat 1 (Board accordingly analyzed terms of proffered agreement, and found that agreement coerced employees from exercising their Section 7 rights because it broadly prohibited them from making statements that could disparage or harm the image of Respondent and further prohibited them from disclosing terms of agreement. The Board observed that agreement provided for substantial monetary and injunctive sanctions against the employee in the event nondisparagement and confidentiality proscriptions were breached.); Landrum, supra note 98 at 766-767;
See discussion supra Section III.A.1.a.1.a and III.A.1.a.1.b.
  [168].   See discussion supra Section III.A.1.a.1.a; See discussion supra Section III.A.1.a.1.b; Landrum, supra note 98 at 767 (“Most states’ unconscionability doctrines require both procedural unconscionability and substantive unconscionability before a court will refuse to enforce a contract.”).
  [169].   See discussion supra Section III.B.1.
  [170].   See Cooley, supra note 69 at 95; Caplan, supra note 64 (Publicity surrounding the Revels litigation in the Miss North Carolina Organization within the Miss America Organization and negative attention that the Miss USA Organization has received from resignation of 2024 Miss USA and 2024 Miss USA’s Teen serve as tangible examples of the potential negative media attention and consequences that these national pageant organizations will face from these unreformed confidentiality and arbitration clauses used in the pageant industry.).
  [171].   See discussion supra Section III.B.2.