A recent decision of interest was published earlier this month by the US National Labor Relations Board. It involved soccer referees but has valuable lessons for UFC fighters as well.
In the recent case the Professional Soccer Referees Association petitioned to represent certain lower league officials, basically those from feeder leagues, into Major League Soccer. The MLS Soccer referees were already represented by the petitioning union.
The Professional Referee Organization (“PRO”), who train and provide support services for match officials who referee soccer games at the highest level (MLS) opposed the petition arguing that the lower tier officials were not employees but were unpaid volunteers or alternatively independent contractors and should not be entitled to collective bargaining. (If you wanted to make this a fighter analogy perhaps think Dana White Contender Series fighters as feeders into the UFC with a union already representing the UFC roster fighters also looking to represent the feeders from DWCS).
In siding with the petitioner NLRB Regional Director John Walsh Jr. rejected the argument that the feeder level referees were volunteers or independent contractors, found that they were employees and cleared the way for a ballot for the referees to decide if they wished to be represented as a union by the petitioners.
In reaching this conclusion the NLRB indented the following legal framework to be applied:
In determining whether an individual is an employee or an independent contractor, the
Board applies the common law agency test set forth in the Restatement (Second) of Agency,
§220 (1958), which includes the following non-exhaustive factors to be examined:
1) The extent of control which, by agreement, the master may exercise over the details of
2) Whether the individual is engaged in a distinct occupation or work.
3) The kind of occupation, with reference to whether, in the locality in question, the work
is usually done under the direction of the employer or by a specialist without supervision
4) The skill required in the particular occupation.
5) Whether the employer or the workman supplies the instrumentalities, tools, and the place
of work for the person doing the work.
6) The length of time for which the person is employed.
7) The method of payment, whether by the time or by the job.
8) Whether or not the work in question is part of the regular business of the employer.
9) Whether or not the parties believe they are creating the relation of master and servant.
10) Whether the principal is or is not in the business.
See, for example, FedEx Home Delivery, 361 NLRB 610, 611 (2014); SuperShuttle DFW,
Inc. 367 NLRB 75 (2019).
If you take the level of control that the UFC exercices over their fighters and apply these factors its interesting to guess what outcome the NLRB review would have. A strong argument can be made that fighters would be found to be employees by the current NLRB with the UFC arguably having a greater level of control over their fighters (for example deciding who they fight, where they fight, when they fight, what they wear in the cage, what they wear during fight week, what their corners can wear, what sponsorship logos appear on their clothes, restrictive contracts preventing working from other MMA and other combat sports promotions, controlling their own titles and rankings among others) than what PRO had over these lower tier soccer referees.
Any fighter who feels they may be misclassified as independent contractors and is interested in learning more should not hesitate to contact Lucas Middlebrook, the lawyer behind Project Spearhead, who successfully represented the referees in the above decision.