MMA

Fists Up: The Most Important Fight in the UFC Is Happening Outside the Octagon

What does your favorite UFC fighter have in common with your Lyft driver? Both are classified as contractors, giving them few labor rights. But several efforts underway—including one spearheaded by a fighter recently cut under disputed circumstances—seek greater protections for the men and women grappling in the cage.

MMA

Fists Up: The Most Important Fight in the UFC Is Happening Outside the Octagon

What does your favorite UFC fighter have in common with your Lyft driver? Both are classified as contractors, giving them few labor rights. But several efforts underway—including one spearheaded by a fighter recently cut under disputed circumstances—seek greater protections for the men and women grappling in the cage.

By Paul WachterJan. 23, 2019, 10:40 am UTC • 18 min

In May 2017, when bantamweight Leslie Smith was still under contract with the Ultimate Fighting Championship, she attended the UFC’s first annual athlete retreat in Las Vegas, the sport’s mecca. It was an occasion for celebration for UFC management and its new overlord, the powerhouse talent agency William Morris Endeavor, which had paid $4 billion for the promotion the previous year. And it marked the remarkable rise of a once-fringe sport that John McCain famously derided as “human cockfighting.”

One of the retreat’s marquee events was a Q&A with Kobe Bryant. Smith rose and asked the former NBA star, “How essential to your personal negotiations and the success of basketball in the world do you believe a players association has been?” Bryant replied that NBA players “understand completely that a rising tide raises all boats. … So when you guys have this union and you operate on the same page together, it will 100 percent fortify the sport and make the sport better, not just for the present but for future generations coming.”

Of course, there is no fighters’ union in the UFC. The company keeps the lion’s share of the estimated profits ($700 million in 2017)—about 85 percent according to most estimates—and president Dana White wields dictatorial power over UFC fight cards, cutting contracted fighters at his discretion while barring them from competing for other MMA outfits. But labor relations in the UFC may be about to change. In the past few years, there have been several efforts to unionize fighters, including one led by Smith. Meanwhile, in 2014 several fighters filed an antitrust lawsuit against the UFC that continues its slow march through the courts. And on a third front, U.S. Representative Markwayne Mullin, an Oklahoma Republican and former professional MMA fighter, has introduced legislation that would extend the Muhammad Ali Boxing Reform Act, which helps protect fighters’ interests from promoters, to mixed martial arts. “Right now, the UFC is the Don King of mixed martial arts,” Mullin told The Ringer, referencing the boxing promoter who has been sued by several fighters (including Muhammad Ali, Larry Holmes, and Mike Tyson) for allegedly shortchanging them and invoked the Fifth Amendment before a Senate committee when asked about his relationship with mob boss John Gotti.

The UFC is resisting each of these efforts, paying lobbyists to thwart Mullin’s effort, mounting a vigorous defense to the antitrust lawsuit, and maintaining that its fighters are independent contractors—like Uber drivers or freelance journalists—not employees, and therefore lack the right to unionize under federal law. UFC executives, like generations of sports owners before them, combine their intransigence on labor reform with public expressions of benign paternalism, intimating that they’re as concerned about UFC fighters as they are with their bottom line. “We want our athletes to be healthy, have long careers, and make lots of money,” said UFC chief operating officer Lawrence Epstein.

That, however, proved not be the case with Smith, who disputes the circumstances that led to her release from her contract before UFC Fight Night 128 last April, after Smith’s slated opponent failed to make weight. By paying Smith for the canceled fight, the final bout on her contract, the UFC maintained it had fulfilled its obligation, while Smith argued she was due another opportunity. “I had an idea the UFC would cut me because of my advocacy,” she said, while insisting that she’ll continue her unionizing efforts even if she never returns to the octagon. “I don’t expect it to be an easy fight, but we’re only doing what other professional athletes have done in other sports.”

Smith, 36, is a self-professed hippie who came to mixed martial arts after years of waitressing and partying. She fought in some lesser promotions and made her UFC debut in 2014. Smith said she first began thinking of labor issues in the sport while training with brothers Nick and Nate Diaz, accomplished UFC fighters with a long history of tangling with White. For the past several years, she’s been speaking to fellow fighters about unionizing, with mixed results. “I’ve had so much encouragement, but some people also are like, ‘Dana White gave me the car that I’m driving now, and I don’t want to rock the boat,’” Smith said.

White’s few public comments about the possibility of a unionization drive have been measured. “But at the end of the day, do I care about a union?” he asked rhetorically during a SiriusXM town hall with Jim Rome. “I’ve got to negotiate with somebody. A union wouldn’t be my problem. The union would be the fighters’ problem.”  

But that’s not the official UFC position which, as expressed to The Ringer by Epstein, is that the fighters are independent contractors, not employees, and therefore can’t legally unionize.

“Obviously the UFC doesn’t want unionization because that would cut into their bottom line,” said Jeff Borris, a prominent baseball agent who along with Smith and labor lawyer Lucas Middlebrook formed the Professional Fighters Association in 2016. “They would have to fund things like medical insurance and pensions, share in the licensing and other revenue streams that they don’t want to do.”

Ostensibly, forming a union is simple. “You need 30 percent of the workforce to vote in favor of unionizing, which triggers an election,” said Middlebrook, who helped the successful unionization effort of Major League Soccer referees. “Then you take a vote and you need a majority in favor of unionization.” But it’s more complicated in practice. Unlike, say, with baseball, where there’s a dense concentration of athletes during spring training and at other sites during the year, “with the UFC everyone is spread out all over the place, and it’s not often we’re in the same location,” Smith said. And in individual sports, there’s historically been less of a push to unionize. Professional golfers and tennis players remain independent contractors, albeit with players’ associations that occasionally wield some power in modest ways, such as improving prize money at events. But the UFC’s power over its fighters is much greater. Wimbledon, for instance, doesn’t require longtime, exclusive contracts from Serena Williams and Roger Federer in order to compete in its tournament.

Were the fighters to meet the vote threshold, they would then face a formidable legal hurdle to dispute their status as independent contractors. “WME’s stance is that [the fighters] are independent contractors,” said Borris, who has represented Barry Bonds and who inspired the television show Arliss. “But if you analyze the situation, they’re employees. [The UFC] tells them when to fight, where to fight, and whom to fight. They tell them what they can wear … and also prevent them from fighting for other promotions.”

It’s unclear whether the fighters would win this legal argument. During Barack Obama’s presidency, FedEx drivers won employee designation in scattered lawsuits, and the National Labor Relations Board, the federal agency tasked with enforcing labor law, ruled that drivers were employees and not independent contractors. But in 2017, the U.S. Court of Appeals overruled the board, stipulating that the drivers were independent contractors and did not have the right to union representation. With Donald Trump in office, the composition of the NLRB has tilted to the right and wasted no time in reversing Obama-era pro-union labor policies.

Meanwhile, turmoil within the PFA hasn’t helped the pro-unionization cause. Only a few months after the the association was formed, both Smith and Middlebrook cut ties to the organization, citing a leak of the names of various UFC fighters they had targeted to form an interim board and Borris’s efforts to form an advisory board of agents, which may have given off the impression that there were third parties trying to profit off the fighters. “There was some concern whether Borris or I were doing this for our own gain and we wanted to make sure the fighters knew that wasn’t the case,” Middlebrook said.

What little momentum the PFA gathered has puttered out: There hasn’t even been a tweet from the association’s official Twitter account since November 2016. In the other major American professional sports, Borris wrote to The Ringer in a recent email, “There is a brotherhood that exists where the athletes band together to combat the evil ways of the owners.” But UFC fighters, Borris continued, “are unable to join forces” and as long as that’s the case the “UFC will continue to undercompensate and trample upon the rights of these poor men and women that risk their lives every time they get into a cage.” Currently, Borris added, “my only focus is on baseball.”

Despite the setback, in February, Smith and Middlebrook launched Project Spearhead with the hope of either unionizing or wresting more control from the UFC as independent contractors. Then, on April 21, Smith was cut by the UFC when her scheduled opponent, Aspen Ladd, failed to make weight ahead of their fight in Atlantic City. By paying Smith, the UFC argued that it had fulfilled her contract. But Smith disagrees. “Nowhere in my contract did it say the UFC could just pay me for the fight and not give it to me,” Smith said. “And every professional fighter knows there’s much more to a fight than getting paid. … There’s exposure, the possibility of a career-defining moment, plus the sheer thrill of competing in front of thousands of people, which is why we all do this.” Plus, Smith pointed out, she had won her previous two fights, which suggested to her that her pro-labor agitation, and not her performance, was behind the UFC’s decision.

Smith filed a complaint with the National Labor Relations Board Region 4, covering parts of New Jersey and Pennsylvania, which initially found merit with Smith’s claim. But then the regional authority referred it to the national office in Washington, D.C., an action Middlebrook—who also serves as Smith’s lawyer—said was unusual and prompted by the UFC’s political string-pulling. “Blatant delay tactic—Leslie will take all legal means to ensure the Reg. 4 decision stands,” Middlebrook tweeted after the announcement.

But the national office dismissed Smith’s complaint, finding that there “is insufficient evidence to establish that the UFC’s failure to renew her contract in April 2018 was based on any protected activities” and citing several instances in which the UFC had helped Smith, including allowing her to wear a Project Spearhead mouthguard for the Ladd bout. Smith is appealing, but she said the episode already has impacted the thinking of other fighters. “The only reason I’m no longer in the UFC is because of my efforts to unionize the fighters,” she said.

Unlike Leslie Smith, Jon Fitch came from a traditional fighting background. After wrestling for Purdue University until his graduation in 2002, he made his UFC debut and won eight straight fights over the next three years, earning a title shot against fellow welterweight Georges St-Pierre, which Fitch lost by decision. Fitch rebounded with five more victories and then fought B.J. Penn to a draw, but he never got another title shot.

After going 1-2 following the Penn fight, Fitch was unceremoniously dumped by the UFC in early 2013. (The UFC typically signs fighters to multifight contracts, but retains the right to cut them at any time.) Fitch and his defenders say Dana White cut him mainly because the UFC president didn’t like his fighting style—Fitch is a grappler and rarely wins by flamboyant knockouts. But aesthetic judgments have no place in MMA, the UFC’s critics say. “That’s not how you run a sport,” said Robert Maysey, a Phoenix-based attorney who represents Fitch and several other fighters in an antitrust lawsuit against the UFC. “I don’t like the Baltimore Ravens’ style of football. Does that mean they shouldn’t have the right to play in the Super Bowl?”

White has defended his decision to cut Fitch on several occasions, saying that Fitch was an expensive asset on his way down—never mind the fact the UFC president has retained fighters with poorer records. “[I]t’s not like Jon Fitch was on this incredible fucking winning streak and one of the greatest fucking welterweights in the history of the world, this guy’s a fucking Hall of Famer,” White said in his typically colorful fashion.

A year after he was cut from the UFC, Fitch and two other now-retired fighters, Cung Le and Nate Quarry, filed a class-action lawsuit against Zuffa, then UFC’s parent company. Even during his ascendant streak, Fitch said he was troubled by the UFC’s business model: “The fact is that the promoters in mixed martial arts—with the UFC being the biggest of all of them—make their fighters sign exclusive contracts and also control rank and title,” Fitch told The Ringer. Had he remained silent, Fitch might have returned to the UFC; instead, he’s currently signed to Bellator and has fought in the Professional Fighters League. “I could have kept my mouth shut, played ball, won a couple fights, and gotten back into Zuffa,” Fitch said in 2015. “But that wasn’t what I wanted. I’m not going to get table scraps and be happy. I’ll fight until my death to support fighters.”

The civil lawsuit, which was first filed in California but has been moved to Nevada, where the UFC’s headquarters are located, now has additional plaintiffs and has carried over to the UFC’s new ownership. The lawsuit alleges that the UFC exercises monopoly and monopsony power in violation of Section 2 of the Sherman Antitrust Act, engaging in an “illegal scheme” to eliminate rival MMA competition and restrict fighters’ “ability to fight for would-be rivals during and after their tenure with the UFC.”

The organization’s contracts with fighters are remarkably one-sided. The lawsuit cites exclusivity provisions with clauses involving termination and extension that only the UFC can trigger. There’s a champion’s clause, whereby the UFC can unilaterally extend a fighter’s contract so long as the fighter is a reigning UFC champion. There’s a right-to-match clause giving the UFC a chance to match an offer for a fighter from its enfeebled MMA competitors. UFC fighters, through the ancillary rights clause of their contracts, also sign away their merchandising and video game rights to the UFC while being required to attend promotional events without additional compensation. And the UFC gets to approve fighters’ sponsorships deals. (In 2014, the UFC signed an exclusive deal with Reebok to outfit its fighters in the octagon, which many fighters said resulted in lower payouts than they had enjoyed in their previous independent sponsorship deals.)

Meanwhile, the lawsuit contends, the UFC has gobbled up or diminished its rivals. Over the past 13 years, the UFC acquired World Extreme Cagefighting, Pride, and Strikeforce and has used its power to undermine other minor league outfits by counterprogramming. For instance, on September 5, 2014, the UFC put on an event at Foxwoods Resort Casino in Connecticut just a few miles from Mohegan Sun, where rival organization Bellator was holding a pay-per-view card the very same night. Additionally, the UFC ensures that competitors don’t have access to the same high-profile venues, including Las Vegas Strip arenas, by signing deals with the venues that bar them from hosting similar events by rivals around the same time as a UFC event. Plaintiffs’ lawyers make frequent use of White’s public boasts. “There is no competition,” he said in 2010. “We’re the NFL. You don’t see people looking at the NFL and going, ‘Yeah, but he’s not the best player in the world because there’s a guy playing for the Canadian Football League or the Arena League over here.’ We’re the NFL. There is no other guy.”

UFC fighters who attempt to buck the onerous terms of their contracts are dealt with harshly. After MMA legend Randy Couture resigned from the UFC in 2007 and sought to fight another titan of the sport, Russia’s Fedor Emelianenko, under another promotion, HDNet Fights (founded by Dallas Mavericks owner Mark Cuban), the UFC fought Couture’s move in the courts. The UFC also blocked sponsorship deals independently negotiated by Quinton “Rampage” Jackson and then inked its own deals with the same companies. More recently, in 2016, White scrapped a fight involving the sport’s biggest star, Conor McGregor, when he failed to show up for a promotional event. “Even the sport’s stars don’t have a lot of leverage,” said Cody Gibson, a fighter based in Visalia, California, who was featured on four UFC fight cards. “I was under contract, and the UFC dumped me. But while I was under contract there was no way I could go fight for anyone else.”

In response to the lawsuit, the UFC issued a terse statement, saying that it “will vigorously defend itself and its business practices,” and executives declined to discuss the ongoing litigation on the record. The UFC filed a motion to dismiss the lawsuit and separately challenged Maysey’s access to confidential company information during the discovery process; in both cases judges ruled against the UFC. On June 28, 2017, plaintiffs’ attorneys deposed their first high-ranking UFC executive: Lorenzo Fertitta, who along with his brother, Frank, both casino magnates, owned Zuffa before selling the UFC parent to WME. Fertitta’s statements attacked the plaintiff’s accusations. He said the only significant barrier to entry in MMA was capital, similar to many other industries; that the UFC, despite White’s public boasts, had competition from Bellator, One FC, and several other MMA outfits; that the vast television landscape offered opportunities for a smaller promotion to make deals and quickly “become a major player in the industry”; and that, regarding alleged control over the labor pool, given the global growth of the sport, there is “an endless number of fighters that have the ability to compete at the highest level and be the highest level fighters.”

The next hurdle for the plaintiffs will come later this year, when the court determines whether the lawsuit can be certified as a class-action pursuit, which would allow additional fighters to seek damages, or, per the UFC’s request, be thrown out. At stake is not just hundreds of millions of dollars—under antitrust law, guilty parties can pay out triple the amount of damages—but also the MMA landscape. “If we’re successful in the lawsuit, you’re going to see a number of other promotions become competitors at the elite level,” Maysey said. “You’re going to see the top fighters won’t be consolidated in one promotion any longer. They’ll move around because bidding will occur.”

A court order is one way to weaken the UFC’s control over mixed martial arts. Legislation is another. And legislation may prove the easier route. On January 3, 2017, Rep. Mullin introduced H.R. 44, also known as “the Muhammad Ali Expansion Act,” a bill that would expand the protections awarded to boxers by earlier legislation to mixed martial artists. The boxing legislation—the Professional Boxing Safety Act of 1996, which focused on health and safety, and the Muhammad Ali Boxing Reform Act of 2000, which focused on corruption—helped clean up (albeit far from completely) a sport rife with exploitative managers and promoters, rampant conflicts of interest, and rigged rankings. “In baseball, football, and basketball, there is a commissioner, there are established rules and there are agents and managers and unions to look out for athletes,” the late John McCain, a major driver of the boxing-reform legislation, said at the time. “There are none of the abuses that have marked boxing over the years.”

Passage of H.R. 44, which now has more than 50 cosponsors, would shake up the UFC and other MMA outfits by capping contracts at one year, mandating financial transparency, establishing an independent ranking system that would grant fighters title bouts based on their record rather than their perceived marketability, and creating a firewall between promoters and managers. The last point is particularly relevant since WME serves as the talent manager for several fighters.

But the UFC’s Epstein called the proposed legislation “a solution in search of a problem.” And at a 2017 hearing on H.R. 44 before the House Subcommittee on Digital Commerce and Consumer Protection, UFC senior vice president of regulatory affairs Marc Ratner argued his company’s position, noting that the UFC had already embraced regulations. “It was the UFC and only the UFC that crisscrossed the country and the world to convince [state] lawmakers to legalize and regulate the sport,” he said.

Ratner, who advocated for the Ali Act when it passed Congress 20 years ago, told the committee that “the conflicts and corruption that give rise to the Ali Act are not present in MMA.” But the logical holes in this claim were plain even in Ratner’s own prepared statement. “The UFC’s fighters are ranked by sports reporters, and those rankings guide our merit-based matchmaking decisions,” he said. As to why matchmaking decisions shouldn’t be determined, as in boxing, by an independent ranking body, Ratner offered, “It might force interpromotional fights,” he said. “Because different promotions have less comprehensive health and safety standards than the UFC, our fighters would be endangered.” (It’s true that the UFC has instituted more comprehensive anti-doping provisions than other MMA outfits, though state commissions also oversee drug testing for fighters.)

Mullin questioned the integrity of the UFC’s matchmaking procedures, which don’t seem to follow the UFC’s rankings. The representative pointed to the top of the card of UFC 199, held on June 4, 2016, in which the UFC’s fourth-ranked middleweight contender, Michael Bisping, was given a title shot against champion Luke Rockhold. A few months later, Dan  Henderson, the 14th-ranked middleweight, got his title shot against Bisping. And then on November 4, 2017, former welterweight Georges St-Pierre, who hadn’t fought a professional bout in four years, took on Bisping, skipping to the front of the line in a weight division he had never participated in. (St-Pierre won that fight but voluntarily vacated the title a month later.)

Each of these fights was spectacular. “We make the fights that fans want to see,” Ratner told the subcommittee. That makes financial sense for a company that depends on pay-per-view for much of its income. But the current system, Mullin said, was a disservice to professional mixed martial artists, leaving them little control over whom they fight within the UFC and, thanks to the exclusive contracts, making it impossible to take on worthy competitors at other promotions. “The ideal solution is to pass the Ali Act, so that we, as fighters, enter the free market,” said Jon Fitch, one of the fighters involved in the antitrust suit against the UFC. “The UFC can still do its circus fights, but make it mandatory that every 12 months the title holder has to take on the no. 1 contender.”

In its lobbying efforts and public statements the UFC has portrayed the proposed legislation as government overreach. “We continue to believe the federal government would have no productive role in regulating MMA promotions or competitions,” Epstein told ESPN. But it says something about the state of the industry that the sponsor of the bill is a hard-line conservative. “People know that I am against federal regulations jumping into businesses,” said Mullin, who in 2016 received a 91 percent approval rating from the Club for Growth and has received similar high marks from other conservative advocacy organizations. “But I also have a little bit of background in MMA fighting, too,” he said. “I’m not anti-UFC, and it’s done a great job of giving the sport a spotlight. But we need to make sure the fighters are treated fairly.”

Mullin is confident that his bill will pass, even though a similar bill he previously sponsored died in committee. “The UFC is fighting us every step of the way, but we’ll be successful every step of the way,” he said. “After all, the original Ali Act passed unanimously.”

The UFC is set to make more money this year after inking a new five-year broadcast deal with ESPN that’s exclusive aside from pay-per-view events. Under its past seven-year deal with Fox, which ended in 2018, the UFC received about $120 million annually. ESPN will pay out $300 million per year.

But don’t expect this windfall to be distributed equitably among the fighters. Since 1881, when Chicago White Stockings owner Albert Spalding declared, “Salaries must come down or bankruptcy stares every team in the face,” the path to sports labor reform has been marked by strikes, lockouts, and lawsuits—not the beneficence of ownership.

History is on the fighters’ side, Mullin said. “I think we’ll pass the Ali Act, and if we do I don’t expect the fighters to unionize,” he said. “But if the bill doesn’t go through, I fully expect them to unionize because the fighters have to stand together somehow.”

For now, however, the odds of unionization remain longer than any challenge Leslie Smith has faced in the cage. Following her release from the UFC and the more recent release of Canadian Kajan Johnson, there’s only one current UFC fighter, New York’s Al Iaquinta, publicly affiliated with Project Spearhead. Smith acknowledges the unique challenge of organizing fighters who are conditioned to view one another as potential enemies inside the octagon as well as the reluctance of other fighters to take on the UFC after seeing how she was cut from the organization. “We’re still in the education phase of explaining why forming a union is the best thing for everyone,” she said. “This isn’t about rocking the boat, it’s about getting what [the fighters] should have already.”

Paul Wachter has written for The New York Times Magazine, Harper’s, Grantland, and other publications.

Paul Wachter