Leslie Smith’s Legal Action Brings MMA to a Crossroads

By Jacob Debets May 1, 2018

Editor’s note: The views and opinions expressed below are those of the author and do not necessarily reflect the views of Sherdog.com, its affiliates and sponsors or its parent company, Evolve Media.

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Kevin Lee announced himself as a legitimate threat to the Ultimate Fighting Championship lightweight throne with a dominant fifth-round stoppage of perennial contender Edson Barboza on April 21, but the seeds for a significantly more consequential campaign were planted that same weekend. Going into the final fight on her UFC contract, bantamweight Leslie Smith abruptly parted ways with the promotion, this after opponent Aspen Ladd failed to make weight for their scheduled match. The UFC offered Smith her full purse -- it consisted of show and win money totalling $62,000 -- but declined to negotiate a contract extension.

Ranked in the top 10 in a notoriously thin division, Smith is riding a three-fight winning streak at 135 pounds -- her only loss since 2014 came in a catchweight pairing with current featherweight champion Cristiane Justino. The UFC’s treatment of Smith has been interpreted as a reprisal for her labor-organizing efforts and a warning to would-be agitators to keep their heads down.

First affiliated with the Mixed Martial Arts Fighters Association and then the short-lived Professional Fighters Association, Smith is now the interim president of Project Spearhead and has consistently advocated for improved pay and conditions for athletes fighting under the UFC banner; and unlike many of her high-profile peers -- whose gripes with the promotion are typically framed as individual conflicts rather than the product of the UFC’s exploitative business model -- Smith has been uniquely proactive in articulating and explaining what she believes to be the solution, namely an official fighters union. Her hope? To address the massive power asymmetries that characterize fighters’ relationships with the UFC by proving they are employees as opposed to independent contractors under the National Labor Relations Act and fighting for improved conditions through collective bargaining.

It’s that clarity and persistence, and the fact that she was an *active UFC fighter when she began her unionization campaign, that sets her apart from her predecessors and makes the UFC’s retaliations that much more significant.

For all its frequently underappreciated and misunderstood work in lobbying for the Ali Act, the MMAFA’s membership is comprised exclusively of fighters who no longer -- or never did -- compete inside the Octagon, making it easier for the company and the MMA media to downplay or ignore. Likewise, while members of the Mixed Martial Arts Athletes Association, which included big names and former champions like Georges St. Pierre, Cain Velasquez and T.J. Dillashaw, talked a big game, the organization expressly ruled out forming a union or pursuing litigation against the UFC and quickly retreated into radio silence after its inaugural press conference in November 2016.

In Smith, the UFC had a different kind conundrum: a fighter who possessed all the qualities that would normally make offering her a new contract a no-brainer -- she has a scrappy style with a willingness to take risks and happens to have won more fights than she has lost -- but a fighter who also used her platform to call out the UFC’s exploitative practice at every opportunity. So the promotion released her and in so doing opened the door for Smith file a charge under sections 8(a)(1) and (3) of the NLRA, which prohibits employers from taking retaliatory actions against employees as punishment for supporting a union. The threshold issue for the National Labor Relations Board is whether UFC fighters are employees or independent contractors; it is exactly the same question the UFC was ostensibly hoping to avoid by cutting Smith and sabotaging the unionization effort.

Assuming Smith can put together enough money for the action -- she has set up a GoFundMe page for those wishing to donate -- and depending on how hard the UFC resists the action, the upshot is that in the near future a hugely important legal precedent could be set regarding fighters’ employment status. This could have consequences for the MMA industry that are difficult to overstate.

If Smith is successful in proving she is an employee under the NLRA, a jurisdictional question that says nothing about the lawfulness of the UFC opting not to re-sign her, the immediate effect would be that Project Spearhead would have the green light to form a union and pursue collective bargaining. Fifty percent of active fighters would still need to vote in the organization as their bargaining representative -- it could possibly be more if international fighters are defined as falling outside of the “bargaining unit” by the NLRB -- but it would remove a massive hurdle to that course of action and give the organization momentum.

The ruling would also give fighters other protections under the NLRA, like workers compensation and requirements for the UFC to withhold payroll taxes, while potentially paving the way for fighters to be defined as employees under other federal laws, including the Social Security Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act and a smorgasbord of others. Together, these laws provide protections and benefits ranging from mandatory employer contributions to family health insurance plans to minimum wage entitlement, surely things the UFC would rather not have to navigate.

Even more significantly, however, are the impacts this classification could have on the MMAFA’s aforementioned campaign to reform the industry through federal legislation. The Ali Act, if passed by Congress, would decouple promotions from their titles and rankings system, invalidate coercive contracts and impose financial disclosure requirements on promoters, removing barriers to entry for other MMA promoters and giving individual fighters, particularly champions and top contenders, significantly more leverage in contract negotiations.

Markwayne Mullin, the congressman who introduced the Muhammad Ali Expansion Act Bill into Congress in 2016, has gone on the record in suggesting he would pull the bill if the UFC moves to a real “league system” by making its fighters employees. Ostensibly, this reasoning is connected to the rationale for the original statute, introduced in 2000 to address illegal and unethical practices in the boxing industry, being that boxing operates without any private sector association, league or centralized industry organization.

As Bloody Elbow’s John Nash explained in this essay, nixing the Ali Act would make it significantly harder for other promoters to compete with the UFC for talent and destabilize the MMAFA’s plan to build an association capable of enforcing the legislation. In the longer term, even assuming that the Ali Act is passed, employment status could also induce the UFC into voluntarily recognizing a union and entering into a collective bargaining agreement, if it believed its terms would override protections against restraint of trade in the act. This begs the question: Might the UFC have released Smith because it recognizes the union route is more conducive to its business than a world where the Ali Act applies?

It seems far-fetched, but it’s worth considering as this scenario plays out. A fighter’s union would insulate the UFC from future antitrust liability -- it wouldn’t necessarily affect the current lawsuit -- and although the promotion would be forced to make concessions to the fighters at the bargaining table, they would pale in comparison to the disruptions wrought by its legislative alternative. These would include having to disclose how much revenue the UFC makes from its events, dealing with sanctioning bodies in title fights and paying champions and top contenders far more for their services or risk losing their market share.

Of course, all of this is pure speculation and assumes (a) that the UFC is treating the respective campaigns of the MMAFA and Project Spearhead as equally legitimate threats to its business model and (b) that it’s making covert chess moves to manipulate the situation to its advantage. Occam’s razor dictates that a simpler and more plausible explanation is that the UFC sees minimal risk in Smith succeeding and was willing to risk a week of bad publicity by releasing her for the sake of limiting her access to other fighters on the roster.

Either way, the outcome of Smith’s case has consequences for MMA that go far beyond whether the UFC acted illegally in its conduct towards her.

Jacob Debets is a recent law graduate who lives in Melbourne, Australia. He has been an MMA fan for more than a decade and trains in muay Thai and boxing at DMDs MMA in Brunswick. His work has been published widely, including on Fight News Australia, LawinSports, LowKickMMA, MMASucka De Minimis and Farrago. He is currently writing a book analyzing the economics and politics of the MMA Industry. You can view more of his writing at jacobdebets.com.

* Middleweight Cung Le filed an antitrust lawsuit against the UFC while he was still under contract, however did not compete again under the Zuffa banner and was granted a release from the organization in 2016 after he retired.

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