Why Francis Ngannou’s toughest opponent is a UFC contract

If UFC heavyweight champion Francis Ngannou wants to fight out his contract he’ll face some difficult hurdles.

Over the years, more than a few UFC champions have had disputes with the promotion. From Tito Ortiz almost boxing Dana White, Randy Couture resigning from the promotion to try and get a fight with Fedor Emelianenko, Georges St-Pierre getting berated by White for not defending the title on the UFC’s schedule, to Jon Jones holding out for a bigger purse, conflict between the UFC and its biggest stars is not unheard of. We can now add current heavyweight champion Francis Ngannou to the list.

Ngannou, who was a guest on the MMA Hour last week, shared with Ariel Helwani the details of his disagreement with the UFC. According to Francis, because he was on the last fight of his contract and was intent on a substantial pay increase and better terms in any new deal, the UFC was trying to pressure him into accepting their less-than-desired offer.

As the current holder of the heavyweight title, Ngannou’s valuation is theoretically at its peak. So it is in his best interest to finish out his contract while holding the belt in order to field as many offers as possible with as few as restrictions as possible. The problem, according to Ngannou, is that the UFC is doing everything possible to prevent that potential free agency.

“First of all,” Ngannou revealed to Helwani, “there is a champ clause and they’ve been trying to apply pressure with an extension, but I did not sign a new deal and I think that’s basically the issue. That’s what is causing all these issues because I don’t want to sign a new deal on certain terms. I don’t feel protected in those terms — in the past two years I fought twice and I have to borrow money to live. Nobody cares about that. I have no guarantee and I have no protection, so based on that experience I want to get something better, better terms on my contract, and obviously paid what I deserve.”

The actions taken by the UFC, as described by Ngannou, read as a list of allegations from the the Le et al v Zuffa, LLC UFC antitrust lawsuit complaint:

a. The “Exclusivity Clause,” which binds UFC Fighters into a restricted relationship with the UFC and prohibits them from appearing in bouts televised or organized by actual or potential rival promotions unless approved by the UFC, thus preventing athletes from receiving competitive purses from co-promoted or competitor MMA events. This clause blocks actual or potential rival promotions from having access to Elite Professional MMA Fighters under contract with the UFC for protracted periods of time. Regardless of the term of the agreement, the provision includes various termination and extension clauses that can be triggered at the UFC’s sole discretion, thereby effectively extending the exclusivity provisions indefinitely.

b. The “Champion’s Clause,” which allows the UFC to extend a UFC Fighter’s contract for as long as the athlete is a “champion” in his or her weight class, preventing the Fighter from financially benefiting from his or her “championship” status by soliciting competing bids from other MMA Promotions even after the end of his or her original UFC contract term. This clause specifically blocks actual or potential rival promotions from having access to Elite Professional MMA Fighters, which are needed for a would-be rival promotion event to be commercially successful. This clause also denies UFC Fighters free agency—despite their being independent contractors—thereby retaining the Fighter’s services for the UFC effectively indefinitely.

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f. The “Retirement Clause,” which gives the UFC the power “to retain the rights to a retired fighter in perpetuity.”

g. Tolling provisions, which extend the term of the UFC Fighter’s contract during periods when he or she is injured, retired, or otherwise declines to compete, thus virtually prohibiting even disgruntled athletes from sitting out the term and signing with a would be rival promoter.

According to Ngannou he is on the last fight of his contract, a contract that was supposed to have terminated on May 20th earlier this year. Unfortunately a few days after capturing the title from Stipe Miocic at UFC 260, Ngannou says the promotion extended it.

“This was on April 1st, three days after my fight. They proposed June 12 and now I’m like ‘whoa, I can’t fight June 12th.’ Why? Because I have a visa issue. You know that my visa needs to be renewed on May 20 and it’s your job to renew the visa and I’m not allowed in the US on June 12th,” Ngannou said.

“Not to mention they have to give me at least time to maybe go home and introduce the belt for my people, for my country, for my family. Why was the rush so bad? In the past two years I have fought twice and suddenly I have to defend my title after two months? What is the rush? What’s wrong? Why can’t I have the average time as everybody, three or four months?”

Ngannou claims he and his team offered to fight in either July or August but was told that those events had already been booked. Later the UFC came back to ask if he could fight on the August pay-per-view but Ngannou says by then he was in Cameroon and unavailable for that date. He did offer to defend in September.

“They asked if I would be ready in September 25 and I remember the exact email that we sent [said] ‘Francis will be more than ready again whoever, whenever.’ That was September 25… but that was I don’t know maybe, uh, Wednesday or something and by, uh… by Monday [June 28] I just saw the interim title get announced. It was funny and the meantime it was shocking. That’s how it plays out.”

Because Ngannou had been unavailable for the August match, his contract was extended another 6 months. Although the match has not been announced yet, the UFC is supposedly targeting Ngannou versus Cyril Gane on January 22, 2022. This is 10 months after he captured the title, 8 months after the original termination date of his contract, and four months after the date he agreed to fight on.

Contract extensions such as these are not unheard of. Every UFC contract is thought to contain the following provision:

The length of time for ZUFFA to provide Fighter with the minimum number of Bouts enumerated in this Article IV shall be extended for six (6) months or any period of time that Fighter is unable or unwilling to compete, whichever is greater. Such extension shall include, without limitation, any time periods when Fighter is disabled, sick or injured for any reason; incarcerated; suspended or revoked by an Athletic Commission; has his ability to travel restricted by a governmental agency or is otherwise unable, unwilling or refuses to compete or train for a Bout for any reason whatsoever, including, without limitation, not approving of an opponent designated by ZUFFA pursuant to Section 3.1 of this Agreement.

While contracts may have set termination dates it is very easy for that date to be extended through this provision. One of the alleged tactics revealed in the antitrust suit was the exploitation of such tolling provision by the UFC in order to coerce fighters into resigning with the promotion.

Further, Zuffa leveraged its tolling provisions to extend Fighters’ contracts beyond the period of injury. When a Fighter was injured, Zuffa would interpret its contracts to provide an extension of time equal to the time between fights, not the actual length of time that the Fighter was injured. In practice, this meant that Zuffa itself had control over the length of time the contract was extended. In July 2009, Tracy Long, a Zuffa employee overseeing management of Fighter contracts, wrote “we sent an injury extension letter for Fabiano on April 7, 2009. How much time do you want to add to his agreement?” Sean Shelby, a Zuffa matchmaker, responds,“Whatever gets the most amount of time per the contract.” In his deposition, Joe Silva testified that, if Zuffa learned that a Fighter became injured in between fights, Zuffa would automatically extend the duration of the contract for the entire period between fights—even if the injury did not prevent the Fighter from being available on schedule for his next fight.

Zuffa exploited its tolling provisions to extend Fighter contracts even when there was no record of Fighters actually being injured. When Long discovered in October 13, 2014 that Mats Nilsson was only on his second fight of a four-fight Agreement terminating on November 8, 2015, head matchmaker Joe Silva told her to send him a six-month extension despite having no record of Nilsson being injured. Long emailed Mersch to ask him what she should do, and he responded, “I guess we just need some sort of basis for the 6 months extension Joe is asking us to add onto his deal.” Ultimately the UFC sent a six-month extension letter.

Fighters and managers have told me that these tolling provisions were used often in the past. One example given to me was former matchmaker Joe Silva’s apparent tendency to automatically send an extension notice to every fighter after their match because the commission suspension made them unavailable for a period of time. But since the filing of the antitrust lawsuit, these tolling provisions seem to be used much less, with some fighters or their manager telling me they have never received an extension, even when they were looking to fight out their contract.

Ngannou’s experience would apparently be the exception to the current norm. Perhaps this shouldn’t be a surprise considering his status as champion.

If the UFC does not extend Ngannou’s contract any further, and the bout does take place on January 22, that still does not mean he will be done with his UFC contract. For if he wins and retains the heavyweight title, then the championship clause will kick in, extending his contract an additional three fights.

If, at the expiration of the Term, Fighter is then a UFC champion, the Term shall automatically be extended for the period commencing on the Termination Date and ending on the earlier of (i) one (1) year from the Termination Date; or (ii) the date on which Fighter has participated in three (3) bouts promoted by ZUFFA, regardless of weight class or title, following the Termination Date (“Extension Term”). Any reference to the Term herein shall be deemed to include a reference to the Extension Term, where applicable.

While the clause sets a termination date after one year, just as the termination date for the originally contracted fights can be extended if the fighters is incapable or unwilling to accept a bout, the UFC is going to argue that so too can these additional Champion’s Clause bouts be extended. Thus, waiting out this period might not be an option unless the fighter is willing to litigate it in a Clark County court room (the venue stipulated in the contract.)

So if Ngannou and the UFC cannot come to terms and Francis is set on becoming a free agent, he may have to fight and win three more times to exit while still holding the title.

Another possibility that gets raised a lot is what happens if Ngannou just vacates the title?Would the Championship Clause still the apply? The answer is… I don’t know. I have asked a few attorneys experienced with combat sports contracts and the consensus seems to be that it would have to be litigated to know for sure.

Finally, there is also the possibility that if Ngannou does fight through his 3 additional championship bouts and remains the champion, that the UFC would claim that the Championship Clause would be extended again. While this interpretation would seem to be an obviously violation of the 13th amendment, such a move would again force the fighter to have the litigate the matter in a court room. Thus, adding more time and costing the fighter more money, which might be the intent of the clause in the first place.

One option thought to not be available to Ngannou would be to just sit out and wait for the contract to eventually just run out. While sunset provisions are common in many contracts, the standard UFC contract reviewed by the Plaintiffs’ experts does not contain one. Instead they had a retirement provision that would allow the UFC to freeze a fighter’s contract in perpetuity if they refused to fight out their remaining bouts.

If at any time during the Term, Fighter decides to retire from mixed martial arts or other professional fighting competition or is permanently disabled, then ZUFFA may, at its election, (i) suspend the Term for the period of such retirement or disability; (ii) declare that ZUFFA has satisfied its obligation to promote all future Bouts to be promoted by ZUFFA hereunder, without any compensation due to Fighter therefor; or (iii) elect to provide Fighter with notice of an Acceleration.

Thus to eventually finish his current contract, while also retaining the position of heavyweight champion, Ngannou might have to not only win the last bout on his contract (whenever that finally gets made), he will also have to fight and win three additional fights. And if Ngannou is unable for the dates offered for these bouts, the contract may again be extended another 6 months, meaning the eventually termination date could be several years down the road.

There is one other, more hopeful, possibility for Ngannou. Several fighters and managers have informed me that their contracts now contain a 5 year maximum duration, something unheard of before the sale to WME Endeavor. This change to the UFC contracts apparently started in the second half of 2017, which is right after the class period for Le at al v Zuffa, LLC ends on June 30, 2017.

Since a major allegation in the antitrust case is that the UFC’s contract’s are theoretically perpetual, this guaranteed end date could help the UFC with their defense in the Johnson et al v Zuffa, LLC lawsuit that was filed earlier this year and covers the class period that starts on July 1, 2017.

If the UFC has now made this standard in their contracts, it would represent a major — positive — change for fighters, and some time next year we could potentially see the first batch of fighters who have the option of just waiting for their contracts termination date in order to test free agency. (I also wouldn’t doubt though that if the UFC did indeed do this in response to the lawsuit, more than a few managers will have told their fighters they were responsible for this change to their contract.)

While I know of several fighters who have this provision in their contracts, I don’t know for certain if it’s the new standard. If it is, and Ngannou’s contract contained this language, then, depending on when he signed it, he could look forward to having an actual set termination date.