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The National Labor Relations Act could protect UFC fighters in the case of a peaceful work stoppage
What if the fighters scheduled to compete at UFC 249 refused to step into the octagon on Saturday in Jacksonville?
The fighters could engage in a work stoppage in pursuit of better pay and/or health benefits. UFC 249 might present the fighters with the perfect opportunity to use the leverage they have to gain allowances from the UFC. For instance, the fighters could sit out hoping to gain additional pay for competing during a pandemic and future benefits such as a better split of the revenue. In February, the New York Post reported that the UFC had $900 million in revenue in 2019. Of that windfall, $150 million — or less than 16 percent — went to the fighters. Other professional sport leagues — which have collective bargaining agreements — get closer to 50 percent of the revenue.
In 2013, the Grambling State University football team declined to play a game at Jackson State University hoping to bring attention to unsafe and unhealthy conditions at their facility. The refusal of the players to compete in the game resulted in upgrades to their facility, but perhaps most importantly, the strike got the attention of the mainstream press.
The plight of the UFC fighters is not well known. Many MMA fans choose to ignore the low pay and the fact that fighters – who are not employees but independent contractors — only receive injury insurance while they are training for a fight. Outside of the MMA world, most sports fans are likely unaware how poorly UFC competitors are treated when compared to sports like MLB, NBA, NHL and NFL.
One fighter who is competing at UFC 249, Aleksei Oleinik, who has 11 UFC fights to his name, said before Saturday’s event that he is in precarious financial shape.
“In two or three months, I would have become very nervous,” Oleinik told MatchTV. “I don’t have money now. I already borrowed 15-17 thousand dollars. Therefore, if there were no fights, it would be problematic.”
“If you lose [your fight], then you have enough money for 4-5 months of life, and if you win, for 8-10 [months],” Oleinik added.
By the sound of things, Oleinik had little choice but to face Fabricio Werdum at UFC 249, although the event is taking place during a global pandemic.
Bloody Elbow spoke to Lucas Middlebrook, a labor and sports law attorney with Seham, Seham, Meltz and Petersen, LLP, who has represented fighters Nick Diaz and Leslie Smith and assisted in previous fighter organization efforts about the possibility of UFC fighters withholding their services for UFC 249.
“The NLRA (National Labor Relations Act) and its case law are clear, depending of course on specific facts and circumstances, that employees have a right to ‘engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,’ Middlebrook wrote in an email.
“Many people mistakenly believe this only applies if a work group is unionized, but the right of unrepresented employees to engage in collective action has been characterized in NLRB (National Labor Relations Board) decisions as ‘elemental.’ With this in mind, NLRB case law has held that unrepresented employees who engage in a peaceful work stoppage are engaged in protected concerted activity and an employer who discharges employees for engaging in such activity violates Section 8(a)(1) of the Act.“
“This type of collective action undertaken by unrepresented employees would not necessarily need to involve 100% participation by the entire UFC fighter roster or even those scheduled to fight on a specific card to retain the NLRA protection referenced above. Collective action of this nature may, potentially, also include a concerted approach to accepting or refusing offered fights – especially in the context of fights being held during a global pandemic when nearly all other professional sports are suspended. Concerted activity to address safety concerns has long held the protection of the NLRA.”
Middlebrook added that the UFC fighters would not be without risk if they decided not to take part in the UFC 249 event.
“The NLRA’s protection in this respect, unfortunately, is only as strong as the NLRB and its enforcement approach. As we have seen with Leslie’s (Smith) case and recent NLRB determinations, the current NLRB is no friend of labor. The General Counsel currently serving and appointed by President Trump, Peter Robb, has for the most part become another arm of management. Therefore, if the UFC were to take retaliatory action against fighters engaged in protected concerted activity, fighters would need to rely upon the NLRB to correct the illegal action, and quite frankly, this iteration of the NLRB may not enforce the NLRA in the manner with which it was intended.”
UFC 249 is the only sporting event scheduled on Saturday. If the fighters did decline to participate it would be big news, but as Middlebrook wrote, the risk could outweigh the benefit in the current political environment.