ATTORNEYS

AT LAW
199 Main Street, Seventh Floor
White Plains, New York 10601
Tel. 914 997-1346 Ÿ Fax 914 997-712
Writer’s E-mail: lmiddlebrook@ssmplaw.com

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 Lucas K. Middlebrook, Esq.
Nicholas P. Granath, Esq.
2 SEHAM, SEHAM, MELTZ & PETERSEN, LLP
199 Main Street, Seventh Floor
3 White Plains, NY 10601
Tel: 914 997-1346; Fax: 914 997-7125
4

5 BEFORE THE
UNITED STATES OF AMERICA
6 NATIONAL LABOR RELATIONS BOARD

7 ***

8 ZUFFA, LLC d/b/a, )

Ultimate Fighting Championship (“UFC”) ) UNFAIR LABOR PRACTICE
9 ) CHARGE AGAINST EMPLOYER
-and- )
10 )
Leslie Smith )
11 )
)
12
)
13
I. INTRODUCTION
14
1) Leslie Smith was the most vocal proponent of the need for her fighter co-workers in the
15
UFC to organize and bargain collectively in order to ameliorate the terms and conditions
16
of employment. She was, during all relevant times, the president of an Association,
17
Project Spearhead, which has been soliciting authorization cards from UFC fighters since
18
February of this year. The UFC was desperate to rid itself of one of the only fighters on
19
its roster willing to speak loudly about the benefits of unionizing while actively
20
organizing her colleagues. The UFC, blinded by its sheer arrogance and utter disregard
21
for its fighters’ Section 7 rights, effectively terminated Ms. Smith’s employment on April
22
20, 2018. The UFC’s decision to terminate Ms. Smith was based on the animus it held
23
toward her engagement in protected activity.

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1
II. PARTIES
2
2) The charging party, Ms. Leslie Smith (hereinafter “Ms. Smith”), was, pursuant to the
3
National Labor Relations Act (“NLRA” or “Act”), a statutory employee of ZUFFA, LLC,
4
d/b/a Ultimate Fighting Championship (hereinafter “ZUFFA” or “UFC”). Ms. Smith was
5
employed by ZUFFA as a professional mixed martial artist in the women’s bantamweight
6

7 division beginning on or around April 2014 and continuing until April 20, 2018, at which

8 point ZUFFA took unlawful adverse action(s) against Ms. Smith.

9 3) Ms. Smith, at the time of termination, was ranked ninth (9th) in the world in the women’s

10 bantamweight division. Ms. Smith had been declared the winner in three (3) of her last

11 four (4) fights with ZUFFA prior to her termination – with the only loss coming to the

12 current women’s featherweight (145 pounds) champion, Cris Cyborg, who is considered

13 to be the best female mixed martial artist in the world.

14 4) The charged party, ZUFFA, is a Nevada limited liability corporation, which operates and

15 does business under the name Ultimate Fighting Championship (“UFC”). ZUFFA is the
16 largest mixed martial arts (“MMA”) promotion in the world, and produces MMA
17 fighting events worldwide. ZUFFA is a statutory employer under the NLRA of the
18
MMA fighters that compete within its promotion1, and as such, employed Ms. Smith
19
from on or about April 2014 until she was unlawfully terminated in April 2018.
20

21 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
22 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
23 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.
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1
III. MS. SMITH ENGAGED IN CONCERTED PROTECTED ACTIVITY.
2
5) On or about February 9, 2018, Ms. Smith launched a union organizing drive named
3
Project Spearhead, intended to collect authorization cards from a minimum of thirty
4
percent (30%) of the professional MMA fighters employed by ZUFFA. In so doing, Ms.
5
Smith launched a website: www.projectspearhead.com, which was (and is) accessible to
6
public review. The Project Spearhead website, at all relevant times, plainly stated the
7
Association’s intended purpose as follows:
8

10

11

12

13

14

15 6) Ms. Smith was (and is) the Interim President for Project Spearhead and this is set forth

16 on the Project Spearhead website and accessible to public review.

17 7) Ms. Smith maintains and operates social media accounts on recognized social media
18 platforms such as Instagram and Twitter. Ms. Smith’s Twitter account (i.e., “handle”) is
19 @LeslieSmith_GF. On or about February 12, 2018, Ms. Smith posted the following
20
message on her publicly-accessible Twitter account:
21

22

23

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1

5
8) Ms. Smith’s launch of Project Spearhead and her efforts to organize her fighting
6
colleagues was covered in numerous media publications; including but not limited to,
7
print, audio and video coverage across multiple platforms beginning on or about
8

9 February 12, 2018 and continuing to and through the date of this filing.

10 9) On or about February 23, 2018, Ms. Smith commenced an aggressive social media

11 organizing campaign. Ms. Smith used her public social media platforms, such as

12 Twitter, to request that her fighter colleagues complete and submit Project Spearhead

13 authorization cards. Ms. Smith would send a similar message to each potential

14 bargaining unit member and “tag” the individual by including that fighter’s Twitter

15 handle at conclusion of the message:

16

17

18

19

20 10) Ms. Smith sent approximately three hundred fifty (350) public tweets identical (with the

21 only difference being the name of the “tagged” fighter coworker) to the one shown in

22 Paragraph 9 above beginning on or about February 23, 2018 and continuing through

23 March 2018 to her fighter colleagues employed by ZUFFA in an effort to collect the

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1 requisite amount of authorization cards to file with the National Labor Relations Board.

2 (“NLRB” or “Board”).

3 11) Ms. Smith also engaged in direct face-to-face and voice-to-voice protected union
4 organizing activity with her fighter colleagues following the launch of Project Spearhead
5 in February 2018 and continuing to and through the date of this filing.
6
12) Ms. Smith was involved in an active union organizing campaign at the time she was
7
terminated by ZUFFA on or about April 20, 2018. Ms. Smith, aside from her role as
8
President of Project Spearhead, was the most publicly vocal proponent of the need for
9
her fellow ZUFFA-employed fighters to submit authorization cards and unionize. Ms.
10
Smith was unquestionably engaged in protected activity as that term is construed under
11
Section 7 of the NLRA. Ms. Smith was publicly active in the exercise of her rights
12
under the Act to effectively communicate with her co-workers regarding self-
13
organization.
14

15 IV. ZUFFA WAS AWARE OF MS. SMITH’S PROTECTED ACTIVTY

16 13) On or about December 23, 2017, Ms. Smith sent e-mail correspondence to ZUFFA,

17 which requested a meeting to clarify the effect of ZUFFA’s “UFC Promotional

18 Guidelines,” which were unilaterally amended and issued by ZUFFA to its fighter
19 employees in December 2017.
20 14) Mr. Reed Harris, ZUFFA’s Vice-President of Athlete Development, advised Ms. Smith
21
he would be available to meet on or around December 27, 2018. Mr. Reed requested
22
that Ms. Smith provide her questions regarding the Promotional Guidelines in advance
23
of any meeting. On or about December 27, 2017, Ms. Smith sent a list of questions to

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1 Mr. Reed and travelled to Mr. Reed’s office in Las Vegas, Nevada. Unfortunately, Mr.

2 Reed failed to honor the scheduled meeting despite Ms. Smith having prepared and sent

3 her questions in advance and traveled, in person, to his office.

4 15) On or about January 4, 2018, Ms. Smith received e-mail correspondence from ZUFFA’s
5 Chief Legal Officer, WM. Hunter Campbell (hereinafter “Mr. Campbell”), which
6
advised Ms. Smith as follows:
7
Ms. Smith,
8
Reed Harris was kind enough to pass along your document of questions as it
9 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
10 let me know your availability.

11 16) Ms. Smith made multiple attempts to accept Mr. Campbell’s invitation to meet in

12 person to discuss her questions as it related to the Promotional Guidelines. However, a

13 meeting between Ms. Smith and Mr. Campbell never materialized due, in large part, to

14 Mr. Campbell’s unavailability.

15 17) On January 24, 2018, Ms. Smith sent a follow-up e-mail to Mr. Campbell, which
16 explained she still sought to have a meeting to discuss the unilaterally implemented
17 Promotional Guidelines, but her correspondence went unanswered and no meeting was
18 ever held to discuss Ms. Smith’s concerns.
19
18) ZUFFA was aware that Ms. Smith engaged in concerted and protected activity through
20
the direct correspondence referenced in Paragraphs 13-17 herein. In addition, and as set
21
forth in Paragraphs 5-11 herein, Ms. Smith’s position as President of Project Spearhead
22
and her efforts to unionize her fighting coworkers at ZUFFA was covered widely by
23

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1 MMA media outlets and through social media. Therefore, it would strain credulity for

2 ZUFFA to allege it was unaware of Ms. Smith’s protected activity.

3 19) On or about April 18, 2018, Ms. Smith sent ZUFFA representatives pictures of the
4 mouthguard she planned to utilize for her April 21, 2018 bout. The mouthguard
5 contained the words: “Project Spearhead” as well as the Association’s logo. Fighter
6
mouthguards are typically visible immediately before, during and after a fighter’s bout
7
and can be seen by the television and/or streaming media audience. ZUFFA was aware
8
Ms. Smith intended to utilize a Project Spearhead mouthguard less than forty-eight (48)
9
hours before ZUFFA took adverse action against her.
10
V. ZUFFA TOOK ADVERSE ACTION AGAINST MS. SMITH AND ZUFFA’S
11 ANIMUS TOWARDS HER PROTECTED ACTIVITY WAS A
SUBSTANTIAL OR MOTIVATING REASON FOR THE ACTION.
12
20) Ms. Smith was scheduled to fight on April 21, 2018 at UFC Fight Night 128 in Atlantic
13
City, New Jersey. Ms. Smith’s April 21 bout represented the last remaining fight
14
covered by her Promotional and Ancillary Rights Agreement (hereinafter “Promotional
15
Agreement”) with ZUFFA. The scheduled fight was also subject to a bout agreement
16
with ZUFFA, which required Ms. Smith to be paid an amount of money, which
17
represented her “purse” (show money) and an additional amount of money in the form
18
of a “win bonus” (win money). The bout agreement provided that the win bonus was to
19

20 be paid “if and only if” Ms. Smith was “declared the winner of the Bout pursuant to the

21 rules and regulations of the” New Jersey State Athletic Control Board.

22 21) The bout agreement required Ms. Smith and her opponent to weigh one hundred thirty-

23 five (135) pounds in accordance with the weigh-in procedures set forth by the New

Jersey State Athletic Control Board.

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1 22) On April 20, 2018, Ms. Smith weighed in within the permissible limits to satisfy the one

2 hundred thirty-five (135) pound requirement. However, Ms. Smith’s opponent weighed

3 in at 137.8 pounds, which was outside of the permissible limits. At this point, Ms. Smith
4 was under no contractual or regulatory requirement to continue with the bout against the
5 opponent who failed to make weight.
6
23) On the morning of April 20, 2018, Ms. Smith engaged in discussions with ZUFFA
7
regarding the possibility of adding two (2) additional fights to her existing Promotional
8
Agreement if ZUFFA wanted her to participate in the April 21 bout against the heavier
9
opponent that failed to make weight.
10
24) ZUFFA, primarily through its Chief Legal Officer, Mr. Campbell, refused to entertain
11
Ms. Smith’s request to add two (2) fights to her Promotional Agreement. Instead,
12
ZUFFA advised Ms. Smith, in writing from Mr. Campbell, that it had unilaterally
13
decided “to compensate Ms. Smith by paying both her show and win bonus for this
14
bout.”2 ZUFFA, through Mr. Campbell, also informed Ms. Smith, in writing, of its
15
position that the unilateral decision to pay the show and win bonuses “fully satisfied its
16
contractual obligations remaining under her Promotional Agreement.” ZUFFA, with
17
this written pronouncement, effectively discharged Ms. Smith from her employment.
18
25) Ms. Smith never agreed to accept the show and win bonuses as a quid pro quo for full
19

20 satisfaction of ZUFFA’s contractual obligations remaining under her existing

21
2
On April 6, 2018, ZUFFA President, Dana White, advised members of the media that the ZUFFA
22 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
23 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.

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1 Promotional Agreement. To the contrary, a representative of Ms. Smith replied directly

2 to the correspondence from Mr. Campbell and advised that Ms. Smith “would like to

3 fight” on April 21 and inquired whether it would be possible to “get her show and win
4 bonus for this bout and allow her another bout under her existing Promotional
5 Agreement.”
6
26) ZUFFA, through Mr. Campbell, rejected the option presented by Ms. Smith in
7
Paragraph 25 and advised her, in writing, that “the fight was no longer going to be
8
proceeding.”
9
27) Ms. Smith received another piece of correspondence from Mr. Campbell on the
10
afternoon of April 20, 2018, which advised her that ZUFFA had “decided to not exercise
11
its Right of First Negotiation and Right to Match any Fighter Offers” pursuant to the
12
Promotional Agreement. Moreover, the letter advised Ms. Smith that she would be
13
removed from the UFC registered drug testing pool administered by the United States
14
Anti-Doping Association, of which being enrolled is a prerequisite to fighting in the
15
UFC. ZUFFA removed Ms. Smith from its public rankings, of which she was ninth (9th)
16
in the world, less than forty-eight (48) hours after advising her she had been terminated.
17
28) There simply can be no dispute ZUFFA took adverse action against Ms. Smith, and
18
based on the facts set forth herein and those to be uncovered in the investigation into this
19

20 issue, ZUFFA’s animus toward Ms. Smith’s protected activity was the substantial or

21 motivating reason for the adverse action(s) taken against her.

22

23

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1
VI. CONCLUSION
2
29) Based on the facts set forth herein and those to be uncovered during the Board’s
3
investigation into this matter, ZUFFA committed an unfair labor practice and violated
4
Sections 8(a)(1), 8(a)(3) and all other applicable Sections of the Act when it took
5
adverse action(s) against Ms. Smith in response to her engagement in protected activity.
6
30) ZUFFA, through its unlawful actions against Ms. Smith, has further cultivated the
7
climate of fear currently existent within its fighter employees as it relates to engagement
8
in protected activity under the NLRA. Leslie Smith was one of the only UFC fighters
9

10 willing to openly exercise her rights to form, join or assist a union. ZUFFA, with the

11 termination of Ms. Smith, has delivered an unlawful message to the remainder of its

12 fighter employees, which is: dare to form, join or assist a union and you too will

13 accompany Ms. Smith not fighting in the UFC. This message contravenes the very

14 purpose of the NLRA and ZUFFA cannot be allowed to continue flouting the Act. No

15 person or entity is above the law.

16
Respectfully submitted on:
17
Date: May 2, 2018
18
By: __________________________
19 Lucas K. Middlebrook, Esq.
lmiddlebrook@ssmplaw.com
20 Nicholas P. Granath, Esq.
ngranath@ssmplaw.com
21 SEHAM, SEHAM, MELTZ & PETERSEN, LLP
199 Main Street, Seventh Floor
22 White Plains, NY 10601
Tel: (914) 997-1346; Fax: (914) 997-7125
23
Attorney for the Charging Party – Leslie Smith

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