1. Despite what your contract says you may be employees
2. If so, you are entitled to certain minimum protections under law, including the right to unionize
As the UFC continues to solidify its market position as the pinnacle promotion for elite professional MMA more discussions are taking place about the need for a fighters association or union to possibly balance the power among fighters and the promotion. If fighters are employees then they have the right to form a union and further have all the minimum protections offered under employment law. If not they still enjoy the right to form a fighters association and influence the landscape through that vehicle. So which are they?
This is where strippers and cheerleaders come into play.
UFC contracts say that fighters are independent contractors. What the contract says, however, does not necessarily govern. Courts ultimately have the right to determine if an individual is a contractor or an employee and they do so by looking at the totality of the relationship. Late last year the Nevada Supreme Court ruled that strippers working at the Sapphire Gentlemen’s Club where actually employees, not independent contractors as was written in the contract. It was an important ruling as it cleared the way for the entertainers to sue for damages for back wages, overtime and other protections offered to employees under state law. In reaching this conclusion the Supreme Court of Nevada highlighted the following influential factors:
While it is not necessary to list exhaustively every factor that could be relevant in the totality of circumstances that make up a working relationship’s economic reality, there are some factors which courts nearly universally consider:
1) the degree of the alleged employer’s right to control the manner in which the work is to be performed;
2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill;
3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;
4) whether the service rendered requires a special skill;
5) the degree of permanence of the working relationship; and
6) whether the service rendered is an integral part of the alleged employer’s business.
UFC fighters can also learn from “Lacy” of the Oakland Raiderettes who successfully filed a class action resulting in $1.25 million settlement for failing to pay appropriate wages under State law. In short the cheerleaders were contracted to receive $125 per game however, when adding up all the training, appearances and other obligations required to fulfill their duties the amount paid over a season fell well shy of the State’s minimum wage laws. While the case did not delve into the debate of employee vs contractor status (it was clear the cheerleaders were employees) the case illustrates that if UFC fighters are employees then minimum wage laws may apply to all training and other efforts that go into preparing for their bouts.
With the UFC’s applauded anti-doping program requiring athletes to check in 24/7/365 with the USADA, with the Reebok Uniform deal dictating what fighter’s will wear when fighting and a unilaterally imposed compensation structure and lastly with the recently announced UFC “Lab” seeking to influence fighter training and rehabilitation, coupled with the general heavy restrictions contained in UFC contracts, a case for an employee/employer relationship is growing ever stronger.
Whether fighters wish to form an association or perhaps even a union is ultimately up to them. Fighters should keep in mind that the stronger the UFC’s position grows and the more influence they exert on their roster’s year round conduct so too grows the strength of an assertion that fighters are dealing with an employer/employee situation.