Could Leslie Smith UFC non renew bite back?

Leslie Smith is a top-ranked MMA fighter.  She was on a two-fight win streak winning three of her last four bouts (with the loss at the hands of now featherweight champion Cris Cyborg) when the UFC let her go from the organization.

Smith was scheduled to fight on April 21, 2018 at UFC Fight Night 128.  Her opponent did not make weight.  Smith was paid her ‘show’ and ‘win’ money for the bout, the last on her contract with the UFC, and was then released from the promotion.  Her contract was not renewed.

This would not be particularly noteworthy but for the fact that Smith was acting as the Interim President of ProjectSpearhead at the time.

ProjectSpearhead is proving to be perhaps the most successful effort to date to organize UFC labor into either an association or union.  Smith was vocal and making strides in her role as Interim President when her relationship with the UFC came to an end.

Smith announced her intention to pursue legal action against the UFC and, unwittingly, the UFC may have just handed ProjectSpearhead exactly what it needed.

ProjectSpearhead has a simple mission statement.  The organization wishes to determine if UFC fighters are legally considered to be independent contractors or employees.   Depending on the answer fighters will have different legal rights and different avenues for organizing their interests.

Getting an answer to this question is not necessarily an easy task.  ProjectSpearhead needs 30% of the fighters under contract with the UFC to sign an authorization card.  That’s about 150 fighters.  Fighters are a notoriously difficult group to organize.  While more and more are signing each day they have yet to reach this target.  Once reached, the organization can submit the cards to the National Labor Relations Board (NLRB) where the NLRB will look at a list of eleven factors to decide whether or not the fighters are independent contractors or employees.

Enter Leslie Smith’s departure and Sections 8(a)(1) and (3) of the National Labor Relations Act.

These sections, as noted by Smith’s lawyer in the embedded tweet, make it unlawful for an employer to take retaliatory action against an employee because of their efforts to unionize. Smith is of the opinion that this is exactly what occurred and will apparently seek a remedy through legal action.

If followed through, the first thing the NLRB will need to decide is if Smith was an employee or independent contractor – exactly the question ProjectSpearhead needs answered to move forward in its goals.

Smith’s legal action is not the first of its kind and there is precedent in her favor.

In Community Bus Lines/Hudson County Executive Express a similar battle played out where an employee alleged unlawful retaliation by an employer.  The employer argued that the complainant was an independent contractor and had no standing.  In adjudicating the s. 8(a)(3) retaliation charge the Board had to decide this key threshold issue.

The UFC will likely say they ended a contract that came to an end.  Smith will argue she was an employee that was wrongfully retaliated against.  In the end the NLRB will likely give Smith, the UFC, ProjectSpearhead and all UFC fighters an answer to the million (billion?) dollar question – are UFC fighters employees or contractors?

Author Erik Magraken is a British Columbia litigation lawyer, combat sports law consultant, founder of the Combat Law Sports Blog, and profoundly appreciated UGer.

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