ATTORNEYSATLAW
199MainStreet,SeventhFloorWhitePlains,NewYork10601
Tel.914997-1346�Fax914997-712Writer’sE-mail:[email protected]
May 2, 2018
VIA FACSIMILE [(215) 597-7658] & FEDERAL EXPRESS Dennis P. Walsh Regional Director, Region 4 National Labor Relations Board 615 Chestnut Street, 7th Floor Philadelphia, PA 19106-4404
Re: CHARGE AGAINST EMPLOYER ZUFFA, LLC Dear Regional Director Walsh: Attached please find FORM NLRB-501 (Charge Against Employer) along with its supporting attachments filed on behalf of Leslie Smith against ZUFFA, LLC, d/b/a Ultimate Fighting Championship. Please do not hesitate to contact me if you require any additional information.
Sincerely,
Lucas K. Middlebrook, Esq.
Cc: Leslie Smith Nick Granath, Esq., Seham, Seham, Meltz & Petersen, LLP
-1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Lucas K. Middlebrook, Esq. Nicholas P. Granath, Esq. SEHAM, SEHAM, MELTZ & PETERSEN, LLP 199 Main Street, Seventh Floor White Plains, NY 10601 Tel: 914 997-1346; Fax: 914 997-7125
BEFORE THE UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
* * * ZUFFA, LLC d/b/a, Ultimate Fighting Championship (“UFC”) -and- Leslie Smith
) ) ) ) ) ) ) ) )
UNFAIR LABOR PRACTICE
CHARGE AGAINST EMPLOYER
I. INTRODUCTION
1) Leslie Smith was the most vocal proponent of the need for her fighter co-workers in the
UFC to organize and bargain collectively in order to ameliorate the terms and conditions
of employment. She was, during all relevant times, the president of an Association,
Project Spearhead, which has been soliciting authorization cards from UFC fighters since
February of this year. The UFC was desperate to rid itself of one of the only fighters on
its roster willing to speak loudly about the benefits of unionizing while actively
organizing her colleagues. The UFC, blinded by its sheer arrogance and utter disregard
for its fighters’ Section 7 rights, effectively terminated Ms. Smith’s employment on April
20, 2018. The UFC’s decision to terminate Ms. Smith was based on the animus it held
toward her engagement in protected activity.
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
II. PARTIES
2) The charging party, Ms. Leslie Smith (hereinafter “Ms. Smith”), was, pursuant to the
National Labor Relations Act (“NLRA” or “Act”), a statutory employee of ZUFFA, LLC,
d/b/a Ultimate Fighting Championship (hereinafter “ZUFFA” or “UFC”). Ms. Smith was
employed by ZUFFA as a professional mixed martial artist in the women’s bantamweight
division beginning on or around April 2014 and continuing until April 20, 2018, at which
point ZUFFA took unlawful adverse action(s) against Ms. Smith.
3) Ms. Smith, at the time of termination, was ranked ninth (9th) in the world in the women’s
bantamweight division. Ms. Smith had been declared the winner in three (3) of her last
four (4) fights with ZUFFA prior to her termination – with the only loss coming to the
current women’s featherweight (145 pounds) champion, Cris Cyborg, who is considered
to be the best female mixed martial artist in the world.
4) The charged party, ZUFFA, is a Nevada limited liability corporation, which operates and
does business under the name Ultimate Fighting Championship (“UFC”). ZUFFA is the
largest mixed martial arts (“MMA”) promotion in the world, and produces MMA
fighting events worldwide. ZUFFA is a statutory employer under the NLRA of the
MMA fighters that compete within its promotion1, and as such, employed Ms. Smith
from on or about April 2014 until she was unlawfully terminated in April 2018.
1 ZUFFA misclassifies its fighter employees as independent contractors. However, Ms. Smith is confident that ZUFFA will be unable to carry its burden of proving she (and other similarly situated UFC fighters) are not entitled to the protection of the Act on the grounds that they are independent contractors. Moreover, depending on the outcome of the Board’s decision in Velox Express, Inc., 15-CA-184006, ZUFFA’s misclassification of its fighter employees may, in and of itself, constitute a violation of the Act thereby necessitating the filing of an additional or amended charge.
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
III. MS. SMITH ENGAGED IN CONCERTED PROTECTED ACTIVITY.
5) On or about February 9, 2018, Ms. Smith launched a union organizing drive named
Project Spearhead, intended to collect authorization cards from a minimum of thirty
percent (30%) of the professional MMA fighters employed by ZUFFA. In so doing, Ms.
Smith launched a website: www.projectspearhead.com, which was (and is) accessible to
public review. The Project Spearhead website, at all relevant times, plainly stated the
Association’s intended purpose as follows:
6) Ms. Smith was (and is) the Interim President for Project Spearhead and this is set forth
on the Project Spearhead website and accessible to public review.
7) Ms. Smith maintains and operates social media accounts on recognized social media
platforms such as Instagram and Twitter. Ms. Smith’s Twitter account (i.e., “handle”) is
@LeslieSmith_GF. On or about February 12, 2018, Ms. Smith posted the following
message on her publicly-accessible Twitter account:
-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
8) Ms. Smith’s launch of Project Spearhead and her efforts to organize her fighting
colleagues was covered in numerous media publications; including but not limited to,
print, audio and video coverage across multiple platforms beginning on or about
February 12, 2018 and continuing to and through the date of this filing.
9) On or about February 23, 2018, Ms. Smith commenced an aggressive social media
organizing campaign. Ms. Smith used her public social media platforms, such as
Twitter, to request that her fighter colleagues complete and submit Project Spearhead
authorization cards. Ms. Smith would send a similar message to each potential
bargaining unit member and “tag” the individual by including that fighter’s Twitter
handle at conclusion of the message:
10) Ms. Smith sent approximately three hundred fifty (350) public tweets identical (with the
only difference being the name of the “tagged” fighter coworker) to the one shown in
Paragraph 9 above beginning on or about February 23, 2018 and continuing through
March 2018 to her fighter colleagues employed by ZUFFA in an effort to collect the
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
requisite amount of authorization cards to file with the National Labor Relations Board.
(“NLRB” or “Board”).
11) Ms. Smith also engaged in direct face-to-face and voice-to-voice protected union
organizing activity with her fighter colleagues following the launch of Project Spearhead
in February 2018 and continuing to and through the date of this filing.
12) Ms. Smith was involved in an active union organizing campaign at the time she was
terminated by ZUFFA on or about April 20, 2018. Ms. Smith, aside from her role as
President of Project Spearhead, was the most publicly vocal proponent of the need for
her fellow ZUFFA-employed fighters to submit authorization cards and unionize. Ms.
Smith was unquestionably engaged in protected activity as that term is construed under
Section 7 of the NLRA. Ms. Smith was publicly active in the exercise of her rights
under the Act to effectively communicate with her co-workers regarding self-
organization.
IV. ZUFFA WAS AWARE OF MS. SMITH’S PROTECTED ACTIVTY
13) On or about December 23, 2017, Ms. Smith sent e-mail correspondence to ZUFFA,
which requested a meeting to clarify the effect of ZUFFA’s “UFC Promotional
Guidelines,” which were unilaterally amended and issued by ZUFFA to its fighter
employees in December 2017.
14) Mr. Reed Harris, ZUFFA’s Vice-President of Athlete Development, advised Ms. Smith
he would be available to meet on or around December 27, 2018. Mr. Reed requested
that Ms. Smith provide her questions regarding the Promotional Guidelines in advance
of any meeting. On or about December 27, 2017, Ms. Smith sent a list of questions to
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Mr. Reed and travelled to Mr. Reed’s office in Las Vegas, Nevada. Unfortunately, Mr.
Reed failed to honor the scheduled meeting despite Ms. Smith having prepared and sent
her questions in advance and traveled, in person, to his office.
15) On or about January 4, 2018, Ms. Smith received e-mail correspondence from ZUFFA’s
Chief Legal Officer, WM. Hunter Campbell (hereinafter “Mr. Campbell”), which
advised Ms. Smith as follows:
Ms. Smith, Reed Harris was kind enough to pass along your document of questions as it concerns the promotional guidelines. Rather than delve into each question on an individual basis, I’d be happy to meet with you in person to discuss. Please let me know your availability.
16) Ms. Smith made multiple attempts to accept Mr. Campbell’s invitation to meet in
person to discuss her questions as it related to the Promotional Guidelines. However, a
meeting between Ms. Smith and Mr. Campbell never materialized due, in large part, to
Mr. Campbell’s unavailability.
17) On January 24, 2018, Ms. Smith sent a follow-up e-mail to Mr. Campbell, which
explained she still sought to have a meeting to discuss the unilaterally implemented
Promotional Guidelines, but her correspondence went unanswered and no meeting was
ever held to discuss Ms. Smith’s concerns.
18) ZUFFA was aware that Ms. Smith engaged in concerted and protected activity through
the direct correspondence referenced in Paragraphs 13-17 herein. In addition, and as set
forth in Paragraphs 5-11 herein, Ms. Smith’s position as President of Project Spearhead
and her efforts to unionize her fighting coworkers at ZUFFA was covered widely by
-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
MMA media outlets and through social media. Therefore, it would strain credulity for
ZUFFA to allege it was unaware of Ms. Smith’s protected activity.
19) On or about April 18, 2018, Ms. Smith sent ZUFFA representatives pictures of the
mouthguard she planned to utilize for her April 21, 2018 bout. The mouthguard
contained the words: “Project Spearhead” as well as the Association’s logo. Fighter
mouthguards are typically visible immediately before, during and after a fighter’s bout
and can be seen by the television and/or streaming media audience. ZUFFA was aware
Ms. Smith intended to utilize a Project Spearhead mouthguard less than forty-eight (48)
hours before ZUFFA took adverse action against her.
V. ZUFFA TOOK ADVERSE ACTION AGAINST MS. SMITH AND ZUFFA’S ANIMUS TOWARDS HER PROTECTED ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING REASON FOR THE ACTION.
20) Ms. Smith was scheduled to fight on April 21, 2018 at UFC Fight Night 128 in Atlantic
City, New Jersey. Ms. Smith’s April 21 bout represented the last remaining fight
covered by her Promotional and Ancillary Rights Agreement (hereinafter “Promotional
Agreement”) with ZUFFA. The scheduled fight was also subject to a bout agreement
with ZUFFA, which required Ms. Smith to be paid an amount of money, which
represented her “purse” (show money) and an additional amount of money in the form
of a “win bonus” (win money). The bout agreement provided that the win bonus was to
be paid “if and only if” Ms. Smith was “declared the winner of the Bout pursuant to the
rules and regulations of the” New Jersey State Athletic Control Board.
21) The bout agreement required Ms. Smith and her opponent to weigh one hundred thirty-
five (135) pounds in accordance with the weigh-in procedures set forth by the New
Jersey State Athletic Control Board.
-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
22) On April 20, 2018, Ms. Smith weighed in within the permissible limits to satisfy the one
hundred thirty-five (135) pound requirement. However, Ms. Smith’s opponent weighed
in at 137.8 pounds, which was outside of the permissible limits. At this point, Ms. Smith
was under no contractual or regulatory requirement to continue with the bout against the
opponent who failed to make weight.
23) On the morning of April 20, 2018, Ms. Smith engaged in discussions with ZUFFA
regarding the possibility of adding two (2) additional fights to her existing Promotional
Agreement if ZUFFA wanted her to participate in the April 21 bout against the heavier
opponent that failed to make weight.
24) ZUFFA, primarily through its Chief Legal Officer, Mr. Campbell, refused to entertain
Ms. Smith’s request to add two (2) fights to her Promotional Agreement. Instead,
ZUFFA advised Ms. Smith, in writing from Mr. Campbell, that it had unilaterally
decided “to compensate Ms. Smith by paying both her show and win bonus for this
bout.”2 ZUFFA, through Mr. Campbell, also informed Ms. Smith, in writing, of its
position that the unilateral decision to pay the show and win bonuses “fully satisfied its
contractual obligations remaining under her Promotional Agreement.” ZUFFA, with
this written pronouncement, effectively discharged Ms. Smith from her employment.
25) Ms. Smith never agreed to accept the show and win bonuses as a quid pro quo for full
satisfaction of ZUFFA’s contractual obligations remaining under her existing
2 On April 6, 2018, ZUFFA President, Dana White, advised members of the media that the ZUFFA fighters who were unable to compete at UFC 223 in Brooklyn, New York as a result of Conor McGregor’s actions would receive only their purse (“show money”). Mr. White was asked by reporters whether these fighters would be paid both their purse money and win bonuses, and his response was no, because ZUFFA is “not that rich.” Apparently, ZUFFA is only rich enough to pay a fighter their purse and win bonus when it is done to retaliate against those who dared exercise their Section 7 rights.
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Promotional Agreement. To the contrary, a representative of Ms. Smith replied directly
to the correspondence from Mr. Campbell and advised that Ms. Smith “would like to
fight” on April 21 and inquired whether it would be possible to “get her show and win
bonus for this bout and allow her another bout under her existing Promotional
Agreement.”
26) ZUFFA, through Mr. Campbell, rejected the option presented by Ms. Smith in
Paragraph 25 and advised her, in writing, that “the fight was no longer going to be
proceeding.”
27) Ms. Smith received another piece of correspondence from Mr. Campbell on the
afternoon of April 20, 2018, which advised her that ZUFFA had “decided to not exercise
its Right of First Negotiation and Right to Match any Fighter Offers” pursuant to the
Promotional Agreement. Moreover, the letter advised Ms. Smith that she would be
removed from the UFC registered drug testing pool administered by the United States
Anti-Doping Association, of which being enrolled is a prerequisite to fighting in the
UFC. ZUFFA removed Ms. Smith from its public rankings, of which she was ninth (9th)
in the world, less than forty-eight (48) hours after advising her she had been terminated.
28) There simply can be no dispute ZUFFA took adverse action against Ms. Smith, and
based on the facts set forth herein and those to be uncovered in the investigation into this
issue, ZUFFA’s animus toward Ms. Smith’s protected activity was the substantial or
motivating reason for the adverse action(s) taken against her.
-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
VI. CONCLUSION
29) Based on the facts set forth herein and those to be uncovered during the Board’s
investigation into this matter, ZUFFA committed an unfair labor practice and violated
Sections 8(a)(1), 8(a)(3) and all other applicable Sections of the Act when it took
adverse action(s) against Ms. Smith in response to her engagement in protected activity.
30) ZUFFA, through its unlawful actions against Ms. Smith, has further cultivated the
climate of fear currently existent within its fighter employees as it relates to engagement
in protected activity under the NLRA. Leslie Smith was one of the only UFC fighters
willing to openly exercise her rights to form, join or assist a union. ZUFFA, with the
termination of Ms. Smith, has delivered an unlawful message to the remainder of its
fighter employees, which is: dare to form, join or assist a union and you too will
accompany Ms. Smith not fighting in the UFC. This message contravenes the very
purpose of the NLRA and ZUFFA cannot be allowed to continue flouting the Act. No
person or entity is above the law.
Respectfully submitted on: Date: May 2, 2018
By: __________________________ Lucas K. Middlebrook, Esq. [email protected] Nicholas P. Granath, Esq. [email protected] SEHAM, SEHAM, MELTZ & PETERSEN, LLP 199 Main Street, Seventh Floor White Plains, NY 10601 Tel: (914) 997-1346; Fax: (914) 997-7125
Attorney for the Charging Party – Leslie Smith