Factual misstatements, omissions cited by Smith in dismissal letter as she appeals NLRB decision

October 8, 2018

MMA Junkie reports that Leslie Smith will file an appeal of her dismissal of her NLRB labor complaint.

In a two-page decision dated September 18, 2018, the NLRB cited that after an investigation Smith’s complaint lacks merit.  “[t]here is insufficient evidence to establish that the UFC’s failure to renew her contract in April 2018 was based on any protected activities.”

The letter from Region 4 regional director Dennis P. Walsh notes that the “UFC’s failure to renew a contract and continue to negotiate with Smith” was not clear as to if it was an adverse employment action.  Essentially, the decision did not see evidence that re-signing Smith to a new contract was an adverse employment action.  The UFC’s unwillingness to make a counteroffer to Smith’s contractual demands was not evidence of an adverse employment action.

The decision cites three times that the UFC’s conduct actually benefited Smith.  They cite the UFC allowing Smith to remain in the promotion in 2017 after refusing to accept two fights.  Despite her refusal, her contract was extended twice.  The UFC approved Smith’s request to wear a Project Spearhead mouth guard for her April 21st fight despite the ban on third-party logos due to the Reebok deal.  Finally, the NLRB cites the UFC granting Smith $500 for travel expenses related to her April 21st fight.

Lucas Middlebrook, the attorney for Smith, has filed an appeal to the decision and requested two NLRB officials to be recused from the appeal as well as requesting that the same investigator that originally found merit in Smith case review the appeal. He accuses the UFC of using political ties to have the complaint sent to D.C. for additional review.

Smith argues that there were several factual misstatements in the dismissal letter including the allegation that she would not fight unless the UFC gave her additional money and added two fights to her expiring contract.  She also argues that the Bout Agreement obliges the UFC to reschedule the bout or terminate the existing Bout Agreement.  Since the fight was not rescheduled and the bout agreement was terminated, Smith argues that she should have had one more fight left on her contract. Based on this interpretation, the dismissal letter claims that her contract had ended but that would not be the case.

She also noted omissions in the dismissal letter decision including her No. 9 ranking in the UFC and having won 3 of her past 4 fights with the only loss coming outside of her weight division.  She also indicated that the $500 provided to her for travel was related to per diems unpaid by the UFC which included costs for checked luggage.

Payout Perspective:

This will be an appeal to watch considering the allegations and the belief that politics are involved in this.  Dana White and the UFC are friendly with the current administration.  In fact, UFC Fight Pass will be airing a special about Trump and his ties to MMA.  But, will the NLRB listen to the merits of this appeal and overturn the dismissal?  The most compelling argument for Smith is the bout agreement which requires either a reschedule of the bout or cancellation of the bout.  With a cancellation Smith would have been allowed one more fight on the contract.  If not, there is a possible claim for breach.  MMA Payout will keep you posted.

NLRB dismisses Leslie Smith’s claims against Zuffa

September 26, 2018

MMA Junkie’s Steven Marrocco first reported that former UFC fighter Leslie Smith had her NLRB complaint against Zuffa dismissed last week per Smith’s attorney Lucas Middlebrook.

Per a report from ESPN’s Brett Okamoto, Middelbrook plans to appeal.

Smith filed the charging letter in May of this year based on unfair labor practices against the UFC.

Leslie Smith Charging Letter by on Scribd

In June, the NLRB Investigation on Zuffa determine that the charging letter had merit and would file a complaint against Zuffa in Federal District Court.  The NLRB could have filed an injunction against Zuffa which would have prohibited the company from designating its contracted athletes as independent contractors and make them statutory employees.

Post-decision, NLRB Region 4 where the charging letter was filed, was instructed to send the case to D.C. for review.  Smith’s attorney believed that this was politically motivated.

Payout Perspective:

This is a stunning turn of events for the NLRB to dismiss the matter after there appeared to be merit to Smith’s claims.  MMA Payout has made a FOIA request on the charging to determine if there is any explanation for the dismissal.  The case had been dormant since being sent to D.C. and one can only wonder what went on during this process.

NLRB sends Smith case to D.C. for further review

June 30, 2018

Leslie Smith’s chances with the National Labor Relations Board filing a lawsuit on her behalf against Zuffa may have taken a detour after the Regional board was instructed to send the case to Washington D.C. for review by the Division of Advice.

On Friday, Smith’s attorney, Lucas Middlebrook announced that the NLRB Investigation on Zuffa based on Leslie Smith’s Charging Letter had merit and would file a complaint against Zuffa in Federal District Court.  Under 10(j) of the National Labor Relations Act, the NLRB could file an injunction against Zuffa which would likely prohibit the company from designating its contracted athletes as independent contractors and make them statutory employees.

Still, in that scenario, Zuffa would have an opportunity to defend itself in Court and oppose an injunction and file a motion to dismiss the lawsuit.

But, late Friday night, Middelbrook stated that post-decision, Region 4 had been instructed to send the case to D.C. for review.  He opined that this was a favor done by the Republican-led NLRB to the UFC.  As you recall, Dana White and President Donald Trump are friends.  There is no timetable on how long it would take for the Board of Advice to get through with its review.

According to its web site, the Board of Advice, “provides guidance to the General Counsel and to the Regional Officers with respect to difficult or novel legal issues arising in processing of unfair labor practice charges. It determines whether charges have merit and, if so, what legal theories should be advanced in support.”

Payout Perspective:

Its an unfortunate turn of events for those rooting for Smith and her cause.  What this means is that despite a green light from the regional office, it was recommended to send to D.C. for further review.  So, while an initial determination was made, it seems as though someone thought it needed another set of eyes.  Could this case get buried and not be heard of a while?  Likely.  Middlebrook told MMA Fighting that it was in a “holding pattern” at this point.  This is not good news for those wishing for swift justice which appeared to be the timeline as Smith filed her letter with the NLRB in May and a determination was made one month later.  Now, we could be waiting months to see when a complaint will be filed.  Or if it will be filed.

NLRB to file complaint against Zuffa based on evidence submitted by Leslie Smith

June 29, 2018

Region 4 of the National Labor Relations Board has determined that Leslie Smith’s labor case against the UFC has merit and will be filing a complaint against the UFC unless a settlement is brokered.  The lawsuit will indeed include a request by the NLRB for an injunction.

According to Smith’s attorney, Lucas Middlebrook, the NLRB investigator determined that there was merit to her Charging Letter filed in May which questioned her work status as an independent contractor as opposed to an employee of Zuffa.

Middlebrook told MMA Fighting that he was informed by the NLRB investigator that the complaint will be filed in about a month.  The court, not the administrative law judge, will determine whether an injunction will be granted.

There are three types of injunctions:  a temporary injunction, a preliminary injunction and a permanent injunction.  It would appear that the NLRB would seek a temporary injunction which would last until the end of the case in which point they would seek a more permanent form of relief (here, the change of status of UFC athletes from independent contractors to employers.)  Permanent injunctions are just what you think of, a permanent halt to the practice (in this case, labeling UFC athletes as independent contractors).  A temporary injunction could be obtained immediately upon filing of a lawsuit and a request from the moving party.

Payout Perspective:

This is a big win for Smith as the NLRB will likely seek a temporary injunction which will upset the status quo of the company’s independent contract athletes.  If nothing else, the decision to go forward with a Complaint against Zuffa will cast a light on the UFC practice.  It does not mean that the NLRB (and Smith) will prevail at the end, but it does show that the case had merit and the NLRB is willing to devote resources to it.

The Interview: USF Law Student Zachary Tomlin

June 17, 2018

I had the opportunity to speak with University of San Francisco Law School student Zachary Tomlin.  He recently won an award in the annual Sports Lawyers Association student writing competition for a paper he wrote about the NLRB and the UFC.

Tomlin SLA Submission by JASONCRUZ206 on Scribd


During my talk with Zack, we reference an 11 part test applied by the NLRB to determine whether or not workers are employees or independent contractors.

The NLRB 11 Factor Test

  1. Extent of control by the employer
  2. Whether or not the individual is engaged in a distinct occupation or business
  3. Whether the work is usually done under the direction of the employer or by a specialist without supervision
  4. Skill required in the occupation
  5. Whether the employer or individual supplies instrumentalities, tools, and place of work
  6. Length of time for which individual is employed
  7. Method of payment
  8. Whether or not work is part of the regular business of the employer
  9. Whether or not the parties believe they are creating an independent contractor relationship
  10. Whether the principal is or is not in the business
  11. (New:) Whether the evidence tends to show that the individual is, in fact, rendering services as an independent business

Also discussed is the NLRB decision in the case of the Northwestern Football player case.  The board unanimously decided to decline jurisdiction.

The Velox decision is below:

Administrative Law Judges Decision in re Velox Express, Inc. by JASONCRUZ206 on Scribd

I also apologize for the abrupt ending.  I am still working on my editing skills.

Show Money talks ESPN/UFC Deal and Leslie Smith

May 14, 2018

It’s that time again. Show Money is back talking about the ESPN+/UFC deal and Leslie Smith’s NLRB Charge against Zuffa.

Leslie Smith’s Unfair Labor Charge against Zuffa

May 9, 2018

Last week Leslie Smith filed a Complaint with the NLRB citing her dismissal from Zuffa based on her activities in trying to organize fighters.

The Charge Letter, states that Smith was ranked 9th in the world in the women’s UFC bantamweight division and won 3 out of her last 4 fights in the UFC.  According to the filing, Zuffa “misclassifies its fighter employees as independent contractors.”  Smith created Project Spearhead which sought to collect authorization cards from a minimum of 30% of the pro MMA fighters under contract with Zuffa.  She sent approximately 350 public tweets “tagging” fighters with the request that they sign an authorization card to determine whether they were employees and able to get benefits.

The Charging Letter also states that she had communicated with Zuffa to discuss changes to Zuffa’s “UFC Promotional Guidelines.”  Reed Harris set up a meeting with Smith to discuss the queries but, according to Smith, Harris “failed to honor the scheduled meeting.”  She then received an email from Zuffa’s Chief Legal Officer Wm. Hunter Campbell stating that he’d meet with Smith.   However, after multiple attempts, the two could not meet due to Campbell’s schedule (according to Smith).

An interesting fact is that Smith sent pictures of a mouthguard she planned to used for her April 21, 2018 fight against Aspen Ladd.  It contained the words “Project Spearhead” with the organization’s logo on it.  The Charging Letter states that Zuffa took adverse action against her.

Leslie Smith Charging Letter by JASONCRUZ206 on Scribd

The Complaint states that Smith attempted to negotiate an additional two fights to her UFC contract if she took her fight with Ladd.  At the time, Ladd was over the 135 pound weight limit.  The offer was rejected by the UFC and she was paid her show and win purse instead.  Smith stated that she did not believe that the payment was a quid pro quo to fulfill the end of her contract.  But, instead the UFC had told her the fight was off and soon thereafter received notice that the company was waiving their right to match clause in Smith’s contract which allows her to immediately sign with another organization.  They also let her know that her name had been taken out of the USADA testing pool, a requisite of fighting in the UFC.

Smith argues that the animus that Zuffa had to her efforts to organize fighters via Project Spearhead was a motivating factor in not renewing her contract with the company.

Payout Perspective:

According to Smith’s attorney, the law firm of Morgan Lewis and Bockius will be representing Zuffa in this matter.  The factual information included in this Complaint is interesting and clearly there are two sides to how Smith’s contract ended.  What would have happened if Smith took the fight despite Ladd being overweight and fought with the Project Spearhead mouthguard?  What was the thinking in providing Smith with both win and show money when the UFC has traditionally not given fighters whose fights fall out due to their opponent’s injury/failing to make weight show money?  Is there are other evidence Smith has to show that she was being pegged as someone that UFC no longer wanted due to her efforts to organize fighters?  MMA Payout will continue to follow.