The New Fighters Association Is Not, Repeat Not, a Union

Yesterday's eagerly anticipated media conference call may one day turn out to be the "industry-re-defining" moment it was promoted as, but right now it may be more significant for what it wasn't than what it was.

There could be no doubting the significance of the scene: Five UFC superstars—Georges St-Pierre, Cain Velasquez, Tim Kennedy, T.J. Dillashaw, and Donald Cerrone—coming together to announce the formation of a group dedicated to leveling the playing field between the most powerful promotion in MMA and its fighters, many of whom have struggled for years to make ends meet even as the UFC grew into one of the most profitable sports organizations in the world. For years debate has raged over the viability of a union for professional mixed martial artists, and it was always assumed that it would take the involvement of the biggest names in the sport to make such a venture a reality. Then, all of a sudden, there they were: five huge names announcing the formation of the Mixed Martial Arts Athletes Association and their position as the first board members of that group. It was a holiday miracle!

On the call, these five fighters sounded like born-and-bred union men all around. It may as well have been a meeting of the Wobblies or the sit-down strike at General Motors in 1937. Kennedy said the association would "change the face of an entire industry and sport" and dedicate itself to "leaving no fighter behind" in its quest for a "safety net" and "ironclad protections when things go bad, when we get hurt, when we retire." St-Pierre said the group would "fight for all fighters who get bullied and intimidated, who are afraid to retire or get fired, or get left broken, with brain injuries and trauma and no care." Velasquez stressed the importance of universal health care and Dillashaw stood up for a pension plan. Cerrone, meanwhile, aimed to calm the fears of other fighters worried about standing up to the UFC by saying, "Cowboy will stand with you."

The board then stated their demands: earning a settlement from the UFC for past and current fighters; changing the current division of UFC revenue, which has fighters earning somewhere between 8 and 15%, compared to the approximately 50% earned by athletes in the other major American sports leagues like Major League Baseball and the National Football League and the National Basketball Association, all of which have players' unions; and the negotiation of a collective-bargaining agreement (CBA) with the UFC.

What the men did not say, however, is that the group they've formed is a union. In fact, they went out of their way to say that they're not a union. According to Bjorn Rebney, the former CEO of UFC competitor Bellator MMA, the MMAAA's "valued advisor," and the sixth man in the room during the conference call, calling the new group a union would be the "worst possible option because it delays everything four or five years. UFC fighters are independent contractors. We would spend two years organizing them, the UFC would walk in to enforce the independent contractor agreement, and the court battle over that status would take years. There's a 90% probability the UFC would win. So, no, we are not forming a union. We are an association."

After all the build-up and anticipation and dreaming, after all the years of debate, after all the hope, Rebney's comments may have felt like the wind being taken out of a beautiful moment's sails, but as unromantic as he sounded he may be right.

Under the rules of the 1935 National Labor Relations Act (NLRA) an employer has a legal obligation to bargain in good faith with a union that has been certified by the National Labor Relations Board, but that obligation that doesn't exist with an association. Which is why so many employers go out of their way to fight the establishment of unions in their shops. And one of the best and most common ways to do that is by claiming that workers aren't employees at all but independent contractors, who are not covered under the NLRA.

Let's say a fighter's association got 30% of the fighters on the UFC's roster to throw their support behind the formation of a union. That group would then file an election petition with the NLRB. In response the UFC would most likely ask the board to dismiss the petition on the grounds that fighters are independent contractors, not employees. The board would then hold a hearing on the UFC's employment structure, the extent of control the company has over the details of the work being done and the conditions of employment, the length of time for which a fighter is employed, and other factors, to determine whether its workers are employees or contractors. This could take years. And if in the end the board decides in favor of the UFC there would be no union.

So, while an "association" may sound less inspiring than a union, it's likely that the legal advisors for the new MMAAA did their due diligence, gauged the shift in the political winds, realized that the incoming Donald Trump administration would soon be filling the two empty seats on the NLRB with Republican members, acknowledged that Trump has a relationship with the UFC stretching back nearly 20 years and was a client of the talent agency that recently purchased the promotion for $4 billion, decided they would never win the employee/independent contractor argument before the NLRB as a consequence, and determined the most effective strategy would be to drop the push for a union and instead for fighters to use their collective clout as highly skilled workers and beloved celebrities to get the UFC to bargain with them.

In other words—in the words of Tim Kennedy, to be exact—in order to get better working conditions, better pay, better health care, and a chance at a fairer portion of the UFC's meteoric success, the new Mixed Martial Arts Athletes Association will have to rely on "the power of the people." It's a romantic notion and one we hope works, but we can't help wondering if Kennedy and his fellow avowed Trump supporter Donald Cerrone are starting to wake up to the predicament they've helped get themselves, and their fellow fighters, into.