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Drexel A. Bradshaw (SBN 209584) 1 S. Clinton Woods (SBN 246054) Nicolet Corliss (SBN 280606) 2 Bradshaw & Associates, P.C. One Sansome Street 3 Thirty-fourth Floor San Francisco, CA 94104 4 Phone: (415) 433-4800 Fax: (415) 433-4841 5 Attorneys for Plaintiffs and Class 6 7 8 SUPERIOR OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF ALAMEDA 10 UNLIMITED 11

12 CASE NO.: RG14727746 Caitlin Y, et al. 13 Plaintiffs, PLAINTIFFS' OPPOSITION TO 14 THE NATIONAL vs. FOOTBALL LEAGUE'S DEMURRER 15 The National Football League, et al., DATE: August 13, 2014 16 TIME: 10:00 a.m. DEPT: 15 17 : Hon. Ioana Petrou 18

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- i - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; 1} TABLE OF CONTENTS 1 MEMORANDUM OF POINTS AND AUTHORITIES ...... 1 2

3 INTRODUCTION ...... ,...... 1

4 STATEMENT OF FACTS ...... 1 5 ARGUMENT ...... 3 6 A. PLAINTIFFS' ALLEGES FACTS SUFFICIENT TO WITHSTAND 7 DEMURRER. 3 8 9 1. Plaintiffs' Complaint Specifically Alleges The Requisite Facts Necessary to Support 10 Plaintiffs' for Violations of The Cartwright Act...... 4 11 2. The Holding in Partee v. San Diego Chargers is Inapplicable to Non-Player Employee 12 Actions ...... 6

13 3. Plaintiffs' Of Employee-Employer Relationship Are Well-Founded And Must 14 Be Accepted As True. ····················································································•o•••••o•••·························· 8 15 4. Plaintiffs' Cause Of Action For Unfair Business Practices Easily Survives Demurrer..... 10 16 5. Defendant's Demurrer on Plaintiffs' Breach of Cause of Action Should Be 17

18 Overruled. ·········································································••e••••••••••••••••••••••••••••••••••••o••••••••••••••••••••••••• 11

19 B. IN THE ALTERNATIVE, REQUESTS LEAVE TO AMEND PURSUANT 20 TO CODE OF § 472. 11

21 CONCLUSION ...... 12 22

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- ii - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y, et al. v. The National Football League, et al. {00126055; 1} 1 TABLE OF AUTHORITIES

2 Cases 3 Banis Restaurant Design, Inc. v. Serrano, (2005) 134 Cal. App. 4th 1035 ...... 4 4 Blank v. I(irwan, (1985) 39 Cal.3d 311 ...... 4 5 CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861...... 6 6 Careau & Co. v. Security Pac. Business Credit, Inc., (1990) 222 Cal. App. 3d 1371 ...... 3 7 Cel-Tech Communications & Cel-Communications. Inc. v. Los Angeles Cellular Telephone Co. (1999) 8 20 Cal.4th 163 ...... 12 9 Chicago Title Ins. Co. v. Great Western Fin. Corp. (1968) 69 Cal.2d 305 ...... 7 10 Clauson v. Superior Court, (1998) 67 Cal App.4th 1253 ...... 4 11 Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal. 4th 377 ...... 12 12 Flood v. Kuhn (S.D.N.Y 1970) 316 F. Supp. 271 ...... 8 13 Fuhrman v. California Satellite Systems (1986) 179 Cal. App. 3d 408 ...... 3 14 Futrell v. Payday California, Inc. (2010) 190 Cal. App. 4th 1419 ...... 9 15 G.Hll v. MTS, Inc. (1983) 147 Cal. App. 3d 256 ...... 5, 7 16 Garton v. Title Ins. & Trust Co. (1980) 106 Cal. App. 3d 365 ...... 3, 10 17 Goldv. Gibbons (1960) 178 Cal. App. 2d 517 ...... 13 18 Goodman v. Kennedy (1976) 18 Cal. 3d 335 ...... 13 19 Gould v. Maryland Sound Industries, Inc. (Cal. Ct. App. 1995) 31 Cal. App. 4th 113 7 ...... 3 20 Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal. App. 4th 414 ...... 8 21 HMC Management v. New Orleans Basketball Club (La. App. 1979) 375 So.2d 700 ...... 8 22 Jones v. HF. Ahmanson Co. (1969) 1 Cal.3d 93 ...... 4 23 Martinez v. Combs (2010) 49 Cal.4th 35 ...... 9, 11 24 Matuszakv. Houston Oilers, Inc. (Tex.Civ.App. 1974) 515 S.W.2d 725 ...... 8 25 Olszewski v. Scripps Health (2003) 30 Cal.4th 198 ...... 12 26 Partee v. San Diego Chargers Football Co. (1983) 34 Cal.3d 378 ...... 7 27 Perkins v. Superior Court, (1981) 117 Cal.App.3d 1 ...... 4 28 Robertson v. National Basketball Association (S.D.N.Y. 1975) 389 F. Supp. 867 ...... 8

- iii - Plaintifft' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; 1} 1 Standard Oil Co. v. Moore (9th Cir. 1957) 251F.2d188 ...... 5

2 State of Wisconsin v. Milwaukee Braves, Inc. (1966) 31 Wis.2d 699 ...... 8

3 Truta v. Avis Rent A Car Sys. (1987) 193 Cal. App. 3d 802 ...... 5 4 Turner v. American Association ofMedical Colleges (2004) 2004 WL 5258113 ...... 9

5 Valley Bank ofNevada v. Plus System, Inc. (1990) 914 F.2d 1186 ...... 8

6 7 Bus. & Prof. Code § 16700 ...... 4 8 Cal. Code Civ. Proc. § 472a(c) ...... 13 9 Cal. Code Proc. §§ 430.IO(e) & 430.10(£) ...... 3 10

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- iv - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION 3 The instant demurrer filed by Defendant the National Football League should be properly overruled, 4 as it misconstrues applicable and seeks to force Plaintiffs to prove their case at the stage. 5 Furthermore, the demurrer improperly seeks to have the court construe Plaintiffs' Complaint solely 6 through the lens of Defendant's interpretation of the NFL and Bylaws as opposed to 7 admitting the facts as pled. Defendant's demurrer should be overruled. In the alternative, Plaintiffs 8 should be given leave to file a First Amended Complaint. 9 STATEMENT OF FACTS 10 Plaintiffs Caitlin Y and Jenny C (collectively "Plaintiffs") filed their Complaint for and 11 Injunctive Relief ("Complaint") on behalf of themselves and all similarly situated non-player employee 12 cheerleaders known as "Raiderettes" on June 4, 2014. On or around July 3, 2014, Defendant the 13 National Football League ("NFL") filed the instant demurrer. 14 Plaintiffs' Complaint satisfactorily alleges the first element of its claim under the Cartwright Act,

15 formation and operation of a combination or conspiracy. See Complaint, filed June 4, 2014, ~~ 29-30, 16 75-81. Plaintiffs' allegations include the fact that the NFL "requires all NFL teams, including the 17 Raiders, to file all written employment with all non-player employees with the NFL League

18 Office." Id. at ~ 29. Further, the Complaint alleges that "the NFL Constitution and Bylaws regulate 19 specific terms and conditions which must be present in all employment contracts between individual 20 teams, including the Raiders, and their non-player employees." Id. The Complaint alleges that the 21 NFL "directed and regulated the Raiderette Agreements." Id. 22 Plaintiffs' Complaint states that "[t]he Raiders, the NFL and other NFL clubs have continuously and

23 repeatedly conspired to depress the wages and internal mobility of female athletes." See Complaint~ 24 77. The Raiderettes, "and other similar NFL female athletes are forced to sign ... illegal provisions 25 which depress wages below legal levels, illegally restrict employees from discussing compensation or

26 benefits, and prevent female athletes from being hired by any other member NFL club." Id. at~ 78. 27 These actions "depress[ ed] the wages of the Raiderettes . . . decreas[ ed] the likelihood that the 28 Raiderettes would learn about other Raiderettes or NFL female athletes' working conditions;

- I - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 prevent[ ed] the Raiderettes and other NFL female athletes from seeking employment with competing 2 NFL clubs during the season; [and] limit[ ed] affected employees' ability to secure employment, as well

3 as better compensation, benefits, and working conditions." Id. at~ 80. 4 Plaintiffs' complaint sufficiently alleges the damage resulting from Defendants' unlawful acts. The 5 damage caused by such acts is specifically alleged under each of Plaintiffs' fifteen causes of action and

6 includes, inter alia, unpaid minimum and overtime wages, meal and rest break premiums, unreimbursed 7 business expenses and unlawful deductions from their wages. See Complaint at ,-r,-r 75-166.

8 Plaintiffs' Complaint properly alleges that Defendant NFL requires all member clubs to file all

9 written employment contracts with all Raiderettes with the NFL league office. See Complaint at ,-r 29. 10 Plaintiffs allege that the NFL Constitution and Bylaws regulate specific terms and conditions which 11 must be present in the Raiderette agreements. Id. Plaintiffs allege that the NFL knew the contents of the 12 Raiderette agreements. Id. Plaintiffs allege that the NFL directed and regulated the Raiderette 13 agreements. Id. Plaintiffs allege that the NFL exercised control over the wages, hours, and working

14 conditions of the Raiderettes. Id. Plaintiffs allege that the NFL suffered and/or permitted the Raiderettes 15 to work. Id. Plaintiffs alleged that the NFL became a party to the Raiderette agreements, and an agency

16 relationship between the NFL and the Raiders was created. Id.

17 Plaintiffs' Complaint alleges that the employment relationship between Plaintiffs and the NFL is

18 governed in some part by the NFL Constitution and Bylaws. See Complaint at ,-i 29; Defendants'

19 Request for at Exs. A & B. Section 9.3(A)(2) of the NFL Constitution and Bylaws states

20 in pertinent part: "Every contract with any employee of the League or of a club therein shall contain a 21 clause wherein the employee agrees to abide and be legally bound by the Constitution 22 and Bylaws and the Rules and of the League, as well as by the decisions of the Commissioner, which decisions shall be final, conclusive, and unappealable ... Every 23 written employment contract with any non-player employee of a club shall be filed in the League office promptly following its execution and shall provide" that such contract sets 24 forth the entire agreement between the parties; that no oral agreements, and no other 25 written agreements, except as are attached to the contract or specifically incorporated by reference therein, exist between them; that such written contract. . . sets forth the entire 26 agreement with respect to the employee's services for the club ... " 27 (Emphasis added). 28

- 2 - Plaint(fls' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 In addition, in 2002 Resolution G-6 of the NFL Constitution and Bylaws, the NFL asserts direct 2 control over the working conduct and on-field performance of all cheerleaders, such as the Raiderettes. 3 The NFL expressly prevents cheerleaders such as the Raiderettes from engaging in certain on-field 4 conduct, such as cheering during play, use of noisemakers, and attempts to start "the wave". 5 ARGUMENT 6 A. PLAINTIFFS' COMPLAINT ALLEGES FACTS SUFFICIENT TO WITHSTAN 7 DEMURRER. 8 Defendant's Demurrer should be overruled because Plaintiffs have alleged facts sufficient to 9 survive a general demurrer. 10 When considering a demurrer, it "is wholly beyond the scope of the inquiry to ascertain whether the

11 facts stated are true or untrue." Garton v. Title Ins. & Trust Co. (1980) 106 Cal. App. 3d 365, 375. For 12 the purposes of the demurrer, the defendant admits "all material, issuable facts properly pleaded in the 13 complaint, however improbable they may be." Id. (citation omitted); see also Gould v. Maryland Sound 14 Industries, Inc. (Cal. Ct. App. 1995) 31 Cal. App. 4th 113 7, 1144 ["[D]efendants cannot set forth 15 allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint."]; Fuhrman v. 16 California Satellite Systems (1986) 179 Cal. App. 3d 408, 422-23. 17 A defendant may demur to a complaint on the ground that the does not state facts 18 sufficient to constitute the cause of action alleged. Cal. Code Proc. §§ 430.lO(e). In order to survive a 19 demurrer on either of these grounds, "[a] complaint must allege the ultimate facts necessary to the

20 statement of an actionable claim." Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal. 21 App. 3d 1371, 1390. California have become increasingly liberal when it comes to what level of 22 specificity is required: Allegations in a pleading must be liberally construed (Cal. Code Proc. § 452), 23 and in light of the extent to which modern is used to draw out the details during litigation, 24 courts generally require only "that the complaint as a whole contain sufficient facts to apprise the

25 defendant of the basis upon which the plaintiff is seeking relief." Perkins v. Superior Court, (1981) 117 26 Cal.App.3d 1, 6. Thus, even conclusory allegations may suffice when read in context with facts alleged 27 as to the defendant's wrongful conduct. Perkins, supra, 117 Cal.App.3d at 6-7; Clauson v. Superior 28 Court, (1998) 67 Cal App.4th 1253, 1255.

- 3 - Plaint(ffe' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 Furthermore, in ruling on a demurrer, the court must "give the complaint a reasonable

2 interpretation, reading it as a whole and its parts in context." Blank v. Kirwan, (1985) 39 Cal.3d 311, 3 318. The trial court also must "assume the truth of the complaint's properly pleaded or implied factual

4 allegations." (Banis Restaurant Design, Inc. v. Serrano, (2005) 134 Cal. App. 4th 1035, 1038.) 5 1. Plaintiffs' Complaint Specifically Alleges The Requisite Facts Necessary to 6 Support Plaintiffs' Cause of Action for Violations of the Cartwright Act. 7 The allegations in Plaintiffs' complaint, which must be accepted as true for the purposes of this 8 demurrer, sufficiently allege a combination or conspiracy in restraint of trade pursuant to the Cartwright

9 Act. Bus. & Prof. Code § 16700 et seq. "In order to maintain a cause of action for such combination in 10 restraint of trade, the complaint must allege: the formation and operation of the conspiracy; the illegal

11 acts done pursuant thereto; a purpose to restrain trade; and the damage caused by such acts." Jones v.

12 HF Ahmanson Co. (1969) 1Cal.3d93, 119. 13 a. Plaintiffs' Set Forth Specific Facts Alleging a Trust, Combination or 14 Conspiracy on the Part of Defendants. 15 A statement of specific facts constituting the conspiracy and explaining its objectives and impact in

16 restraint of trade will suffice. G.Hll v. MTS, Inc. (1983) 147 Cal. App. 3d 256, 265. A conspiracy is

17 a joint undertaking having an unlawful purpose and arising out of an agreement. Standard Oil Co. v.

18 Moore (9th Cir. 1957) 251 F.2d 188. General allegations of an agreement may be sufficient if the

19 unlawful acts are otherwise sufficiently alleged. Truta v. Avis Rent A Car Sys. (1987) 193 Cal. App. 3d

20 802, superseded by on other grounds. Here, Plaintiffs' complaint satisfactorily alleges the first 21 element of its claim under the Cartwright Act, formation and operation of a combination or conspiracy. 22 See Complaint at iii! 29-30, 75-81. Plaintiffs' allegations include the fact that the NFL "requires all 23 NFL teams, including the Raiders, to file all written employment contracts with all non-player 24 employees with the NFL League Office." Id. at if 29. Further, the complaint alleges that "the NFL 25 Constitution and Bylaws regulate specific terms and conditions which must be present in all 26 employment contracts between individual teams, including the Raiders, and their non-player

27 employees." Id. Finally, the complaint alleges that the NFL "directed and regulated the Raiderette

28 Agreements." Id. Unlike the plaintiffs in G.Hll v. MTS, Inc., who merely alleged unilateral action by

- 4 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; l} 1 defendants and did not specifically allege any concerted actions, Plaintiffs specifically allege an 2 agreement (whether oral or implied) by both Defendants to depress the wages and control the actions of 3 these female athletes. See G.HII, supra, 147 Cal. App. 3d at 267-69. Accordingly, Plaintiffs 4 adequately allege in their complaint the necessary elements of a combination or conspiracy. See 5 Standard Oil, supra, 251 F.2d at 196. 6 b. Plaintiffs' Complaint Sufficiently Alleges Facts Illustrating Defendants' 7 Unlawful Purpose and Defendants' Intent to Restrain Trade. 8 Plaintiffs also allege specific facts demonstrating the second and third prongs of their Cartwright 9 Act claims, an unlawful purpose and the intent to restrain trade by Defendants. Plaintiffs' complaint 10 states that "[t]he Raiders, the NFL and other NFL clubs have continuously and repeatedly conspired to

11 depress the wages and internal mobility of female athletes." See Complaint at 8il 77. The Raiderettes, 12 "and other similar NFL female athletes are forced to sign ... illegal provisions which depress wages 13 below legal levels, illegally restrict employees from discussing compensation or benefits, and prevent

14 female athletes from being hired by any other member NFL club." Id. at 8il 78. These actions 15 "depress[ ed] the wages of the Raiderettes ... decreas[ ed] the likelihood that the Raiderettes would 16 learn about other Raiderettes or NFL female athletes' working conditions; prevent[ed] the Raiderettes 17 and other NFL female athletes from seeking employment with competing NFL clubs during the season; 18 [and] limit[ ed] affected employees' ability to secure employment, as well as better compensation,

19 benefits, and working conditions." Id. at 8il 80. As such, Plaintiffs state specific facts, rather than 20 conclusory allegations, which set forth the unlawful purpose and the restraint on trade pursued by 21 Defendants in concert. 22 c. Plaintiffs Allege Facts Setting Forth the Damage Resulting From Defendants' 23 Unlawful Restraint of Trade. 24 Finally, Plaintiffs' complaint sufficiently alleges the damage resulting from Defendants' unlawful 25 acts. The damage caused by such acts is specifically alleged under each of Plaintiffs' fifteen causes of 26 action and includes, inter alia, unpaid minimum and overtime wages, meal and rest break premiums, 27 unreimbursed business expenses and unlawful deductions from their wages. See Complaint at ,-i,-i 75- 28 166.

- 5 - Plaintiffe' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 Plaintiffs have sufficiently and specifically alleged adequate facts necessary to their cause of action 2 under the Cartwright Act. The standard on demurrer requires only that Plaintiffs allege adequate 3 ultimate facts supporting the cause of action-not all relevant facts. See C.A. v. William S. Hart Union 4 High School Dist. (2012) 53 Cal.4th 861, 872 (holding that "the complaint need only allege facts 5 sufficient to state a cause of action; each evidentiary fact that might eventually form part of the 6 plaintiffs proof need not be alleged."). Accordingly, Defendant's demurrer should be overruled 7 because Plaintiffs' complaint sets forth sufficient specific factual allegations to support Plaintiffs' 8 Cartwright Act claims. 9 d. Even if this Court Finds that Plaintiffs' Complaint Requires Further Factual 10 Allegations, Which it Should Not, Plaintiffs Can Amend to Cure Any 11 Alleged Defects. 12 Defendant alleges, without any , that Plaintiffs "do not and cannot" allege the requisite 13 facts underlying their cause of action for violations of the Cartwright Act. See Defendant's Demurrer, 14 at 4:10, 5:7. Defendant is wrong. Defendant cites G.Hll v. MTS, Inc. and Chicago Title Ins. Co. v. 15 Great Western Fin. Corp. for the proposition that Plaintiffs' alleged failure to state specific facts means 16 that Defendant's demurrer should be sustained without leave to amend. However, these cases are 17 factually distinguishable in that plaintiffs in both cases conceded after several demurrers and several 18 amendments that "no further allegations could be added to the complaint." G. H 11, supra, 14 7 Cal. 19 App. 3d at 264; see also Chicago Title Ins. Co. v. Great Western Fin. Corp. (1968) 69 Cal.2d 305, 310 20 ( for plaintiffs represented that they could add nothing to the fourth amended complaint; thus, 21 the demurrers were sustained without leave to amend). Here, Plaintiffs sufficiently allege specific facts 22 that support their cause of action for violations of the Cartwright Act. However, if this Court does not 23 so hold, Plaintiffs can and should be permitted leave to amend the complaint to correct any alleged 24 defects. 25 2. The Holding in Partee v. San Diego Chargers is Inapplicable to Non-Player 26 Employee Actions. 27 The NFL' s second argument is that even if they are employers of the Raiderettes, they are exempt 28 from the provisions of the Cartwright Act and California Labor Code pursuant to the holding of Partee

- 6 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 v. San Diego Chargers Football Co. (1983) 34 Cal.3d 378. This argument has absolutely no merit. 2 Partee involved an action by a former NFL player who sought to impose antitrust liability on the NFL 3 and the Chargers for their labor practices as they pertained to the players. Id. at 3 84 ("The necessity of a 4 nationwide league structure for the benefit of both teams and players for effective competition is 5 evident as is the need for a nationally uniform set of rules governing the league structure." (emphasis 6 added)). The holding in Partee was based wholly on the need to maintain on-field competitiveness

7 between the teams. Indeed, all of the cases upon which the Partee Court relied concerned either players 8 in professional leagues or movement of the teams themselves, not non-player team employees. 1 To the 9 extent that Partee has any relevance to the current matter, its application is expressly limited to the

10 antitrust context involving current or former football players. Id. at 385. Nowhere in the holding did the 11 Court consider anything with respect to the California Labor Code for non-player employees such as 12 the Raiderettes. In fact, the Court expressly neglected to consider whether federal labor policy has any 13 application. Id. To hold that Partee applies not only antitrust violations, but also to provisions of the 14 Labor Code for non-player employees is wholly unwarranted given the case and its progeny. 15 While it may make competitive sense to decline to apply antitrust to current or former players 16 who are represented by powerful unions and have collective bargaining agreements to protect them, 17 there is no competitive justification for declining to apply either antitrust laws or the California Labor 18 Code to non-player employees. The Raiders' on-field performance is not helped or hurt by what the 19 Raiders and the NFL choose to pay the beer vendor, ticket taker, or cheerleader. Nothing in Partee or 2 20 its progeny suggests otherwise • To carry the NFL's position to its logical extreme, if the Defendants 21 22 1 See Flood v. Kuhn (S.D.N.Y 1970) 316 F. Supp. 271 (professional baseball players); State of Wisconsin v. Milwauke 23 Braves, Inc. (1966) 31 Wis. 2d 699 (movement ofthe Braves from Milwaukee to Atlanta); Robertson v. National Basketbal Association (S.D.N.Y. 1975) 389 F. Supp. 867, 881 (professional basketball players); HMC Management v. New Orlean 24 Basketball Club (La. App. 1979) 375 So.2d 700 (suit for alleged antitrust violations against the former New Orleans Jaz prior to their move to Utah); Matuszak v. Houston Oilers, Inc. (Tex.Civ.App. 1974) 515 S.W.2d 725 (professional football 25 players); Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal. App. 4th 414 (professional football players). 2 The NFL also cites to two unrelated cases which cite to Partee in dicta and have no application here. The first is Valle 26 Bank ofNevada v. Plus System, Inc. (1990) 914 F.2d 1186, which involved the application of a Nevada statute to ATM fees. It simply mentioned that sports cases such as Partee involve "challenges under antitrust laws and the commerce clause t 27 professional sports league rules." Id. at 1192. It did not hold that individual NFL teams are exempt from the provisions of th Labor Code as it pertains to non-player employees. The same is true of Turner v. American Association of Medical College 28 (2004) 2004 WL 5258113, which concerned only the administration of the MCAT, not non-player employees of sport leagues. - 7 - Plaintiffe' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055;1} 1 were exempt from the provisions of the Cartwright Act and the Labor Code, they could feel free to 2 engage in patently illegal activities, such as hiring 10 year olds in sweatshops to manufacture apparel, 3 or paying ushers a dollar a day. It is plainly not the case that non-player employees of NFL teams are

3 4 4 exempt from the protections of the Labor Code . The NFL's argument must be rejected , and its 5 Demurrer overruled. 6 3. Plaintiffs' Allegations Of Employee-Employer Relationship Are Well-Founded 7 And Must Be Accepted As True. 8 Defendant's argument with regard to Plaintiffs' that an employee-employer relationship 9 exists between Plaintiffs and the NFL is wholly circular and must be rejected. The NFL does not claim 10 that Plaintiffs have failed to plead any particular element of any particular wage-and-hour claim. 11 Rather, Defendant simply denies the truth of all of Plaintiffs' well-pled allegations. Defendants' denials 12 are meaningless at the pleadings stage and the NFL' s demurrer must be overruled. 13 Defendant premises its argument first on the holding of Martinez v. Combs (2010) 49 Cal.4th 35. 14 Martinez holds only that the applicable test for the employee-employer relationship remains governed 15 by the IWC Wage Order definitions. It does not dispose of Plaintiffs' allegation that the NFL is a joint 16 employer, as the NFL claims. The other primary case relied upon by the NFL, Futrell v. Payday 17 California, Inc. (2010) 190 Cal. App. 4th 1419, is factually distinct and inapplicable. Futrell involved 18 an employee suing an unrelated payroll company which prepared his paychecks but exerted no control 19 over the plaintiffs working conditions whatsoever. Moreover, Futrell reviewed a summary 20 order after the parties had full opportunity to conduct discovery and submit evidence for and against, 21 and is thus inapplicable at the initial pleading stages of a case, such as this. 22 The NFL seeks by way of its demurrer to limit all inquiry as to the precise level of interconnectivity 23 between the NFL and the Raiders to the four corners of the NFL Constitution and Bylaws. However, at 24 the pleading stage the only document which truly matters is Plaintiffs' Complaint. Plaintiffs' Complaint 25 26 3 Nor was it the case in at least two other recently filed employment cases against Defendant Raiders which proceeded in th 27 Alameda County Superior Court. See Streeter v. The Oakland Raiders, RG08388412, filed 5/20/08; and Kebric v. Th Oakland Raiders, RG13682518, filed 6/6/13. 28 4 Notably, Defendant Raiders do not yet claim that the Raiders are not bound by the provisions of the California Labor Cod as to their non-player employees. - 8 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 properly alleges that Defendant NFL requires all member clubs to file all written employment contracts 2 with all Raiderettes with the NFL league office. See Complaint at if 29. Plaintiffs allege that the NFL 3 Constitution and Bylaws regulate specific terms and conditions which must be present in the Raiderette 4 agreements. Id. Plaintiffs allege that the NFL knew the contents of the Raiderette agreements. Id. 5 Plaintiffs allege that the NFL directed and regulated the Raiderette agreements. Id. Plaintiffs allege that 6 the NFL exercised control over the wages, hours, and working conditions of the Raiderettes. Id. 7 Plaintiffs allege that the NFL suffered and/or permitted the Raiderettes to work. Id. Plaintiffs alleged 8 that the NFL became a party to the Raiderette agreements, and an agency relationship between the NFL 9 and the Raiders was created. Id. All of these allegations must be accepted as true for the purposes of 10 this demurrer. Garton, 106 Cal. App. 3d at 375. Moreover, none of Plaintiffs' allegations are

11 necessarily bound solely by the provisions of the NFL Constitution and Bylaws. Rather, the only proper 12 inquiry is the sufficiency of the allegations in Plaintiffs' Complaint. As Defendant identifies no missing 13 element in any of Plaintiffs' wage-and-hour causes of action, Defendant's demurrer must be overruled. 14 Furthermore, Plaintiffs' complaint easily survives demurrer even if the Complaint were premised 15 solely on the NFL's Constitution and Bylaws, which provide ample supporting evidence for Plaintiffs' 16 allegations. Section 9.3(A)(2) of the NFL Constitution states in pertinent part: "Every contract with any employee of the League or of a club therein shall contain a 17 clause wherein the employee agrees to abide and be legally bound by the Constitution 18 and Bylaws and the Rules and Regulations of the League, as well as by the decisions of the Commissioner, which decisions shall be final, conclusive, and unappealable ... Every 19 written employment contract with any non-player employee of a club shall be filed in the League office promptly following its execution and shall provide" that such contract sets 20 forth the entire agreement between the parties; that no oral agreements, and no other 21 written agreements, except as are attached to the contract or specifically incorporated by reference therein, exist between them; that such written contract... sets forth the entire 22 agreement with respect to the employee's services for the club ... " 23 (Emphasis added). 24 Thus, per the NFL Constitution, all Raiderette Agreements are mandated to be filed with the league, 25 and contain certain provisions. In doing so, the NFL exercised direct and expansive control over the 26 employment conditions under which the Raiderettes performed. At bare minimum, it is a reasonable

27 inference to assert that the NFL reviewed and approved the contents of the illegal contracts at issue in 28 the instant litigation. As such, Defendants' denials are immaterial and their demurrer must be overruled.

- 9 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y, et al. v. The National Football league, et al. {00126055;1} 1 Furthermore, the idea that the NFL exerts no influence on the Raiderettes' on-field performance is 2 once again contradicted by provisions in the NFL Constitution and Bylaws. By way of example, in 3 2002 Resolution G-6, the NFL asserts direct control over the working conduct and on-field performance 4 of all cheerleaders, such as the Raiderettes. The NFL expressly prevents cheerleaders such as the 5 Raiderettes from engaging in certain on-field conduct, such as cheering during play, use of 6 noisemakers, and attempts to start "the wave". The two cited provisions above, taken together, clearly 7 defeat the NFL's claim that they have no ability to terminate or discipline the Raiderettes. If a 8 Raiderette were to violate the provisions of 2002 Resolution G-6, the express provisions of the NFL 9 Constitution would purport to subject her to discipline meted out solely and exclusively by the NFL 10 Commissioner. It is axiomatic that NFL Commissioner's powers include the power to terminate 11 employment contracts with individual employees, as evidenced by the NFL Commissioner's unilateral 12 termination of the employment contract of former Atlanta Falcon and current Philadelphia Eagle

5 13 Michael Vick . At bare minimum, at the pleading stage the court must assume the truth of Plaintiffs' 14 allegations that an employee-employer relationship exists between the Raiderettes and the NFL by 15 virtue of the NFL's ability to terminate or discipline a Raiderette for her on-field performance. 16 Martinez, 49 Cal.4th at 70 (holding that the "suffer or permit" test includes the power to fire workers.) 17 The NFL's argument that the allegation that the NFL did not control the wages, hours, and working 18 conditions, suffer or permit work, or engage work pursuant to the NFL Constitution and Bylaws is 19 baffling given the above provisions. Furthermore, the NFL points to no provision within the 20 Constitution and Bylaws which expressly or impliedly contradicts these relevant allegations in 21 Plaintiffs' Complaint. It is not Plaintiffs' duty or obligation to prove the allegations in their Complaint 22 at the pleadings stage. Rather, it is Defendants' obligation on demurrer to show that Plaintiffs cannot 23 prevail. Defendant's demurrer fails to carry that burden, and it must be overruled accordingly. 24 4. Plaintiffs' Cause Of Action For Unfair Business Practices Easily Survives 25 Demurrer. 26 Defendant's demurrer to Plaintiffs' Seventh cause of action for Unfair Business Practices must be 27

28 5 See "Vick suspended indefinitely by NFL", August 24, 2007, ESPN.com at http:/!sports. espn.go. com/njllnews/story? id=2 990 I 5. - 10 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055;1) 1 denied. The California Supreme Court has explained that "[a] business practice is unlawful if it is 2 forbidden by any law ... " Olszewski v. Scripps Health (2003) 30 Cal.4th 198 (emphasis added.) 3 California has interpreted the "unlawful" prong of Section 17200 to hold illegal a business 4 practice that violates any other law, treating it as "unlawful" and making it independently actionable.

5 Cel-Tech Communications & Cel-Communications. Inc. v. Los Angeles Cellular Telephone Co. (1999) 6 20 Cal.4th 163, 180. As the California Supreme Court explained in Farmers Ins. Exchange v. Superior 7 Court, (1992) 2 Cal.4th 377, 383, that the UCL "borrows violations of other laws and treats these 8 violations, when committed pursuant to business activity, as unlawful practices independently 9 actionable under Section 17200." 10 Defendant's argument regarding Plaintiffs' unlawful business practices cause of action again rests 11 entirely on the argument that the cause of action is precluded by the holding in Partee. As described 12 supra, the holding is inapplicable to a non-player employment action such as this. Furthermore, there is 13 no support in the text of the holding or its progeny for an extension of the holding in Partee to suits 14 such as this. Defendants' demurrer should be overruled. 15 5. Defendant's Demurrer on Plaintiffs' Breach of Contract Cause of Action 16 Should Be Overruled. 17 Defendant's demurrer as to Plaintiffs' claims for breach of contract should be overruled because the 18 NFL Constitution makes plain that the NFL has, at bare minimum, assumed obligations of the 19 Raiderette contract. See, e.g., Section 9.3(A)(2), 2002 Resolution G-6. Accordingly, a demurrer will not 20 lie when allegations show that the Defendant has assumed the obligations of the contract. Gold v. 21 Gibbons (1960) 178 Cal. App. 2d 517, 519. Accordingly, Defendant's demurrer on Plaintiffs' cause of 22 action for breach of contract must be overruled. 23 B. IN THE ALTERNATIVE, PLAINTIFF REQUESTS LEAVE TO AMEND PURSUAN 24 TO CODE OF CIVIL PROCEDURE§ 472. 25 Pursuant to CCP § 4 72a( c), when a demurrer is sustained, "the court may grant leave to amend the 26 pleading upon any terms as may be just ...." Cal. Code Civ. Proc. § 472a(c). Further, it is an abuse of 27 discretion to deny leave to amend where there is any reasonable possibility that plaintiff can state a 28 good cause of action. Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349. In the instant case, Plaintiff

- 11 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 has, at a minimum, demonstrated for each alleged deficiency in the Complaint, that there is a reasonable 2 possibility that it can state a good cause of action upon amending the Complaint. Accordingly, should 3 this Court find that Defendant's Demurrer has any merit, Plaintiffs request leave to amend their 4 Complaint, as explained above. 5 CONCLUSION

6 Based on the foregoing facts and law, Plaintiffs request that Defendant's Demurrer be overruled. In

7 the Alternative, Plaintiffs request leave to file a First Amended Complaint.

8 ::::.---

9 Dated: July 25, 2014 10 11 12

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- 12 - Plaintiffs' Opposition to Defendant The National Football League's Demurrer - Caitlin Y., et al. v. The National Football League, et al. {00126055; I} 1 PROOF OF SERVICE The undersigned certifies and declares as follows: I am over the age of 18 years and am not party 2 to the within action. I am employed in the County of San Francisco, California. My business address 3 is One Sansome, 34th Floor San Francisco, CA 94104. On the date shown below, I served the following document: 4 PLAINTIFFS' OPPOSITION TO DEFENDANT THE NATIONAL FOOTBALL 5 LEAGUE'S DEMURRER 6 in the manner described below to the interested parties herein and addressee:

7 Arnold & Porter LLP 8 David J. Reis 111 9 Three Embarcadero Center, 10 Floor San Francisco, CA 94111 10 [email protected] 11 Bingham Mccutchen LLP 12 Dale Barnes Three Embarcadero Center 13 San Francisco, CA 94111 14 [email protected]

15 Bingham Mccutchen LLP Debra L. Fischer 16 355 South Grand Avenue, Suite 4400 17 Los Angeles, CA 90071 [email protected] 18 MAIL: I placed a true and correct copy thereof in a sealed envelope and caused such 19 envelope to be deposited in the mail at my business address, with postage thereon 20 fully prepaid, addressed to the addressee(s) designated. I am readily familiar with the business' practice of collecting and processing correspondence to be deposited with 21 the United States Postal Service on that same day in the ordinary course of business. 22 x ELECTRONIC MAIL: I caused such documents to be electronically mailed to the 23 addresses above.

24 x (STATE) I declare under penalty of pe1jury under the laws of the State of California that the 25 foregoing is true and correct. 26 Executed on July 28, 2014 at San Francisco, California. 27 (". (\ ·- .. _ '') 28

{00126124;1}