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MMA, The UFC, And The Fighter’s Union

The UFC has brought combat sports back to the forefront of the American sports world.  Boxing, as a brand, was relegated to niche programming found on HBO, Showtime, with the mid-tier fights taking place on ESPN’s Friday Night Fights.  Much like boxing, the UFC has a chaotic schedule, volatile fighters, and more unpredictability than any mainstream sport.

To an extent, the UFC and MMA as a whole is paying for boxing’s sins.  One of the stigmas attached to combat sports is that the sport abuses the value of it’s fighters.  The Muhammad Ali Act was put in place to protect boxer’s from predatory promoters who had been stealing money from their prize fighters.  Some state representatives are now trying to extend the Muhammad Ali Act to cover MMA.  In order to protect itself for long-term stability, the UFC must navigate promoter-fighter relationships better than the fight promoters of the past.

There are strong arguments both for and against creating a fighter’s union.  Since the end of summer there are now multiple players looking to unionize MMA fighters.  Current events surrounding the recent sale of the UFC and recent practices by the company have created a sense of urgency amongst some fighters to form a union to collectively bargain for benefits, pay, and protections.

The MMA Union Organizations

In early August the Professional Fighters Association (PFA) was formed with the goal of creating a union for fighters and specifically mentioned UFC athletes.

In the release they said:

“The Professional Fighters Association (PFA) has been established today to represent the collective interests of the fighters employed by the Ultimate Fighting Championship (UFC),” the release stated. “It is the goal of the PFA to organize these hard-working athletes so that they may collectively bargain their terms and conditions of employment pursuant to the National Labor Relations Act (NLRA). The PFA will not only be a union of fighters, but it will be governed solely by fighters. It is the fighters who will control their own futures.”

Sports agent Jeff Borris began the PFA after he and Nate Diaz’s agent Lloyd Pierson met with Dana White to ask why fighters have not unionized. According to Borris, Dana White “scoffed” at the idea. Jeff Borris has represented major league baseball stars Barry Bonds, Jose Canseco, Curt Schilling, Tim Lincecum, and many others.

The PFA is critical of the reported revenue split between the fighters and the UFC. While an exact number is not known and estimates can vary wildly, it is often heard that the UFC fighters receive 15% of the revenue generated. In contrast, the NBA splits the revenue in half as required by the Collective Bargaining Agreement (CBA). The PFA has takes issue with the benefits not afforded to UFC fighters that are a staple in CBAs across the MLB, NBA, NFL, and NHL.

Tony Clark, the executive director for the MLBPA said, “I support the efforts of the fighters to organize… The solidarity and commitment of the group will be essential to their ability to protect and advance their workplace rights.” The executive director for the NFLPA also supported the PFA saying, “As a strong labor union, the NFLPA recognized the need for athletes to have a collective voice and supports the efforts of the UFC athletes to stand together as a team to advocate for their rights as men and women.”

Shortly after the PFA released their intentions of starting a fighter’s union, the Mixed Martial Arts Fighters Association (MMAFA) released a statement that encouraged caution with the recent developments in the sport.  A segment of their post on Facebook reads:

Agent efforts to organize and agent involvement in association operations suffer from two fatal conflicts. First, agents vigorously compete with each other, creating divisions preventing successful formation and operation of the association. Second, agents appropriately view all issues through the lens of “my clients.” Association efforts, on the other hand, must be viewed through the lens of all member fighters.

The PFA wasn’t the only organization attempting to form a fighter’s union. Daniel Bright of Lichten and Bright has reached out to fighters to see about forming a union. The firm had success arguing labor law cases in New York. They claim that the reported $600 million in revenue the UFC claims to have made means that fighters receive 5%-15% of the money made. Similar to the PFA, Lichten and Bright says that they would fight for benefits such as health insurance and an appeal process.

Daniel Bright told MMA Junkie:

We are labor lawyers with a combined 40 years of experience representing unions and people seeking to organize unions,” the letter states. “We are not associated with past efforts to unionize UFC fighters. We believe that legalization in New York, together with the explosive growth in the popularity and revenues of the UFC in recent years, and recent sale of the UFC, present a unique opportunity for the UFC’s athletes to join together and create a union or association that will put them on par with other professional athletes competing in major sports leagues, both financially and in terms of the influence they have over how their sport is run and its athletes are treated.

The Contractors v. Employees Debate

The first argument that needs to be had is whether UFC fighters are independent contractors or employees. Currently the fighters are classified as independent contractors, which legally does not allow them to unionize and engage in collective bargaining. The fighters must be employees for them to unionize. If the fighters remain independent contractors they can form an association but an association is not protected by the National Labor Relations Act.

Many legal experts consider see UFC fighters in more of an employer-employee relationship than as a relationship between a company and an independent contractor. There are several key factors that go into classification but the question in its most fundamental form is how much power does the company have over someone they are hiring.

UFC fighters enter into an exclusive contract with the UFC so that they are not allowed to work for any competing companies, such as Bellator. Reebok and the UFC have an exclusive sponsorship agreement and UFC fighters are required to wear Reebok during the time they are working to earn money. There is also a code of conduct and drug testing policy that applies to UFC fighters. Some might say that there is a significant level of control that the UFC has over the fighters.

It has been reported that fighters are reluctant to raise the issue of unionizing or the restrictions placed on them by the UFC because they fear retaliation by the company. Because the fighters are not employees they may not be protected the same way a full-time employee would from any perceived retaliation.

Future Plans For The PFA

At the beginning of November, PFA’s Lucas Middlebrook was planning to announce an executive board of nine current and former UFC fighters. The nine members of the board would decide on the policies the PFA wants to push. Middlebrook told MMA Fighting:

“You have to have a constitution and bylaws that end up getting filed with the Department of Labor, and there’s things in those constitutions and bylaws that you’re really going to want fighters to start making the decisions on. You can amend those at a later date, but you don’t want just a lawyer and an agent drafting that for the fighters. This is something they should have input on. It’s going to be their union. So ultimately the executive board is going to be empowered with making policy decisions for the union going forward and administrative decisions on when we’re ready to file with the NLRB.

“Obviously I’ll be there to counsel them on any legal points and answer any questions they have,” Middlebrook continued. “But it’s going to be a union of the fighters and run by the fighters, so the sooner we can get some sort of executive board in place, really, I think the more genuine and the more realistic that the union is, because you have fighters already making decisions for the profession and their career.”

MMA Junkie has a set of goals that the PFA has for their union:

1) An increase in base pay, with all fighters receiving a minimum of $25,000 to show and $25,000 to win. (Currently, the UFC offers unknown newcomers around half that, and Bellator far less.)

2) Comprehensive health insurance for a fighter and his or her family. (The UFC, by contrast, offers only accident insurance that often come with high deductibles.)

3) An experience-based pension system. With 20 octagon appearances, a fighter becomes eligible to receive $75,000 a year – for life – beginning at age 65. That figure goes up to $150,000 a year with 30 fights inside the UFC cage. Make it to the UFC’s Hall of Fame, and you receive $100,000 a year.

4) A drug policy with a “mutually agreed upon testing procedure,” penalties, specific drugs tested, and an “equitable appeal and resolution process.” (So far, the UFC is the only promoter with a comprehensive drug testing program, contracting with the U.S. Anti-Doping Agency for year-round testing and results management.)

5) A procedure for resolving disputes between the promoter and fighters that involves an independent arbitrator.

6) A share of revenue, including a share of the ticket sales, TV and pay-per-view money, and merchandise. (Top UFC earners get a share of pay-per-view money, and the promotion’s standard contract promises “10 percent of gross revenues generated from ‘commercial exploitation’ of ‘licensed merchandise.’”)

7) Agreed upon weight classes.

8) A ranking system independent of the UFC that determines fighter matchups. (The UFC employees media-generated rankings and frequently departs from its order to make sought-after fights.)

9) A “fighter board” that evaluates officials, presumably to weed out poor performers in judging and refereeing.

10) A “rehab allowance” that provides medically suspended fighters a $2,000 monthly stipend to support themselves while injured.

Non-Fighter Pay Union Issues

While fighter pay has been one of the issues at the heart of unionization efforts there are many other benefits to a union. For example, fighter Al Iaquinta claims that he was punished by the UFC for missing a fighter summit. Iaquinta received permission from the UFC to miss a summit due to an illness but after Iaquinta posted a picture of himself at the beach that he lives next to the UFC called and said he could not earn a bonus for three fights. Based on Iaquinta’s retelling of the story in his interview with MMA Fighting, it could be reasonably assumed that the UFC believed that Iaquinta misled the organization on why he wasn’t going to the summit. Iaquinta voiced his frustrations in the interview saying that he lost potentially up to $150,000 in bonuses. He also raised issue with being unable to renegotiate his contract with the UFC after Reebok signed on as an official partner and an alleged lack of medical coverage for a knee injury. If there was a union in place there would have been clear guidelines on the policies for attending or missing fighter summits. There would also have been an arbitration process for the fighter to appeal the punishment.

Another example is Mark Hunt’s complaint that the UFC let Brock Lesnar fight at UFC 200 without going through the required USADA testing procedures. Brock Lesnar came out of retirement to fight at UFC 200 and was granted an exemption from the required 4 month waiting period prior to competition. UFC bylaws state that any new or returning fighter must be available to drug testing by USADA for four months prior to their first fight. Lesnar defeated Hunt at UFC 200 a month after coming out of retirement and after the fight USADA notified the UFC that Lesnar had failed a drug test taken before the fight and a second, later drug test. Mark Hunt believes that the UFC knew that Lesnar was at a high-risk of failing a drug test and Hunt was also upset that Lesnar gets to keep his full fight purse. Clearly, there are more than just financial grievances for the fighters to be bargaining for.

 

Financial Concerns Of Fighters

One of the biggest hurdles for the fighters forming into one entity is for all the fighters to agree to it. There are only so many title fights a year in a division and only so many opportunities to get paid and fighters are willing to undercut each other’s pay in order to fight.

It also takes the athletes at the very top of the sport to agree to join the rest of the fighters. Fighters often don’t make serious money until they are PPV stars and at that point they may not have much incentive to join an organization that may damage their high-end earnings. UFC interim featherweight champion Jose Aldo claims that UFC president Dana White told him that a union would harm Aldo’s earning potential.

In mid-August Conor McGregor said he would consider helping UFC fighters form a union. McGregor is the most valuable fighter in the UFC and he said that any unionization efforts would need his help. He said:

“It is important to bunch together and support each other… It’s a dangerous, crazy business we are in. We get in and risk everything. I have witnessed firsthand how these fighters risk it all. Maybe in the future. Right now, I have got to focus on myself. That might be selfish, but this is the position I’m in right now. I have a lot going on. I’ve gotta focus on my own self right now. But in the future, maybe I will help spearhead something like that. If it is presented correctly. I wouldn’t just jump in if it wasn’t gonna be done right.”

Ending The Contractor v. Employee Debate

For the fighters to unionize they would have to first be considered employees. A single fighter could sue the UFC for damages saying they are employees. In order for the court to give a final ruling it would need to be established if the fighter is an employee or a contractor. An alternative to a single fighter suing the UFC is the fighters forming a union and conducting a secret ballot election to certify the union as their exclusive representative. Then they would petition the National Labor Relations Board. The UFC would challenge the petition arguing that the fighters are contractors and thus not eligible for the protections given by the National Labor Relations Board. The courts would then need to determine if the fighters are, in fact, employees or independent contractors.

Next Steps For The Fighters

With the recent purchase of the UFC by WME-IMG and the sport on its way to being a mainstream sport in America the calls for a fighters union grow louder. MMA is about to be pushed to a much more global audience with athletes marketed in a different manner than before by the new owners. When individuals argue that unions can harm the growth of a professional sports organization, NFLPA Executive Director DeMaurice Smith points out that the NFL has only become more popular and more profitable since the NFLPA was formed. Former NFPA Executive Director Gene Upshaw helped the league grow into the $10 billion a year non-profit. Upshaw and NFL Commissioner Paul Tagliabue created stability between the teams and the players that was mutually beneficial.

Negotiations on unions and in collective bargaining are often a matter of leverage. Conor McGregor tried to hold out and negotiate with the UFC in the lead-up to the first planned rematch with Nate Diaz. Eventually McGregor returned to the UFC. McGregor’s trainer claimed that he was facing retaliation from the UFC. Last month at UFC 205 Conor McGregor won the UFC lightweight championship and became the first fighter to hold championship belts in two weight class simultaneously.

It is up to the fighters to form their own union. They must decide on what the goals of their union are and they all must decided to participate. Like NFL players headed into a lockout, the UFC fighters must be willing to potentially take a short-term loss in order to get long-term payouts. If the fighters are unable to come together and fight for their wishes as a collective then they will simply be unable to gain any progress.

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