NLRB filing may bring UFC employee decision
Fighter Leslie Smith filing a charge with the National Labor Relations Board last week against the UFC may settle a much larger question: Whether mixed martial arts fighters can unionize now or in the future.
That’s because only employees can unionize, and if the NLRB decides to hear Smith’s case, that would classify her — and all UFC fighters — as an employee in the NLRB’s eyes.
For years, the UFC has defined Smith, as well as the roughly 600 fighters it has under contract, as independent contractors. But only employees can seek relief from the NLRB. In her charge last week, Smith was described as “a statutory employee,” which may force the NLRB to determine the correct definition.
“The board would have to preliminarily determine whether she is an employee or an independent contractor,” said Bill Gould, former chairman of the NLRB who is now a Stanford Law School professor. “Because they don’t have jurisdiction — they can’t involve themselves in anything like this — unless they have jurisdiction. They don’t have jurisdiction over independent contractors.”
Smith is alleging that the UFC violated federal law protecting employees who engage in union activity when it terminated her contract on April 20. Smith has been the vocal president of Project Spearhead, a group that has been collecting union authorization cards from UFC fighters, and the charge alleges that the UFC retaliated against her for those efforts.
The board would have to preliminarily determine whether she is an employee..
Ironically, the immediate goal of Project Spearhead has not been to unionize, but simply to collect enough union authorization cards to force the NLRB to make the decision of whether the fighters are employees and can unionize. In order to gain “standing” in front of the NLRB, Project Spearhead needed to collect cards from about 30 percent of the membership — or roughly 200 fighters.
That effort might not be needed now.
The UFC declined to comment for this story.
“The UFC, by its actions against Leslie, has forced the issue of independent contractor versus employee to the forefront and to be decided by the NLRB much faster than it would have been if they had just left Leslie Smith alone and let her continue to collect authorization cards,” said Lucas Middlebrook, a labor attorney who is representing Smith in the NLRB action, as well as Project Spearhead.
The NLRB will look at a host of factors to determine the answer, including the extent to which the employer has control over the way the work is done and how the employee conducts himself or herself, Gould said. Another factor is the extent to which the employee is conducting the business of the employer.
“If you have a plumber come to your house, for instance, they are an independent contractor because they are doing something you are not doing,” Gould said. “You are living in the house.”
Conversely, a potential example in Smith’s favor could be if the UFC says it’s in the business of fighting and Smith is a fighter.
Either the entire NLRB board would make the determination or the general counsel could make the decision, Gould said.
There have been at least two other efforts to unionize UFC fighters that have failed over the years, for various reasons.
Although the UFC would not comment, there may be a question as to whether Smith was actually fired. She was on the last fight of her UFC contract when her opponent, Aspen Ladd, did not make the 135-pound weight limit. Smith declined the fight, as was her right under New Jersey law, where the fight was to take place. The UFC paid Smith both the win and show money — $62,000 — so one could argue her contract was fulfilled.
But Middlebrook noted that the UFC would not offer her another fight or renew her contract, even though she had won her last two fights and was ranked No. 9 in the UFC rankings for the women’s bantamweight division.