Last week, I talked with Lucas Middlebrook on the basics of unionization in combat sports. Here’s a full transcription of that interview. Part 3 of this series, The Unionization of Boxing, will be out later this week and will be my perspective of all the information provided by Middlebrook in conjunction with the rumblings of unionization in boxing that I’ve heard.
What can a union provide for boxers?
A union could provide-let me back up. If you are certified by the National Labor Relations Board, or if you are, what they call “voluntarily recognized,” by the employer, under the National Labors Relations Act, then that employer or entity has a legal obligation to bargain in “Good Faith,” with the union over Terms and Conditions of employment. And that is not just a “term” it is legal terminology, so it is not enough for an employer to just sit down at the table and go through the motions. That is referred to as “Surface bargaining,” that is illegal. So there is a whole host of items that go into bargaining and good faith. Take a step forward, typically a collective bargaining agreement is going to contain wages obviously, or compensation is going to be included, comprehensive healthcare included within, post-employment benefits like potentially a pension or 401K, a defined contribution plan, drug testing is a mandatory subject of bargaining so the procedure, what drugs are tested, if there’s a review process. Then you can have non-mandatory subjects of bargaining included in a CBA as well such as travel reimbursements, hotel rooms, things along these lines. It can really solidify the Terms and Conditions of Employment and make it a two way street as oppose to management simply implementing what they choose to implement.
Can you explain the basic consecutive steps athletes need to take in order to form an effective union?
Yeah. So the basic step is you have to send essentially assemble an entity whether it’s you name it an association or an organization or a union. So the first step is to come up with a name so to speak and form an entity and then and then the next step. Probably the most crucial step is educating those that may or may not be interested as to what unionism entails what the process is what could be negotiated. You know things along those lines. What protections there are under the applicable federal law which is the National Labor Relations Act. There are protections against recrimination from employers from actually organizing not just being involved in the union but to put trying to put one together as well but probably the most crucial step is once you get through all that is collecting what they refer to as authorization cards. And these are just one page cards which an individual signed saying that they authorized that entity to file for representation petition with the National Labor Relations Board and if the group is currently un-represented by a union then what you have to do is at a minimum you have to get thirty percent of the workforce to sign these cards and once the N.L.R.B. confirms that you’ve made that requisite showing of interest they will then call for an election. And once you have an election essentially everyone who is affected gets to vote yes or no on the union and the union will need fifty percent plus one of the votes to then be certified by the National Labor Relations Board
You briefly mentioned a trade association, what is the difference between a union and a trade association? Which one in your in opinion is better for combat sports?
As long as the evidence is there that you are in fact statutory employees and not independent contractors. Then I believe the union is the most effective route to go because the difference is that if you’re a certified union then the employer or the management they have a legal obligation to bargain with you and if they do not or if it seems like they’re not willing to reach agreement you can file that bad faith bargaining charges with the National Labor Relations Board and there’s quite a bit of oversight from that entity, if you’re a trade association there’s no legal obligation for anybody to bargain with you over anything and take it a step further, If as a trade association you were to coordinate some sort of concerted withholding of services or a strike, So to speak. If you’re not a certified union you can actually be sued under the Sherman Antitrust Act. If the evidence is there for employees as opposed to a independent contractor I would always advise going the route of the of the Union.
What evidence would there [have to] be to, because to my knowledge boxers along the lines of UFC fighters they are independent contractors and not necessarily employees, so what are the steps to prove they are employees…What would those steps look like?
Yes so it doesn’t come down to labels. So even though the U.F.C. and I and I would imagine some boxing contracts label these individuals as independent contractors that’s not the controlling test if you were to file authorization cards with the National Labor Relations Board it would be incumbent upon the management group or the promotion to argue that you are not statutory employees so the burden would actually be on them not on the union seeking to organized. And the NLRB looks at an eleven factor test to determine whether you are in fact employees or independent contractors and the statute is construed liberally to lean in favor of a finding of employee status and a lot of what the N.L.R.B. looks at is the amount of control that the entity has over the individual the potential for the individual to secure other employment outside of the other similar employment outside of the entity without there being some restriction. So you know you look at for instance in the U.F.C. The fighters are told when to fight where to fight what they can wear what they cannot wear they’re not allowed to fight for any other entity or association things along these lines. So there’s every bit of indication that that under the N.L.R.B. they would be found to be employees and I’m not as familiar with how the boxing world operates. For instance I don’t know if you’re boxing for P.B.C. is that the exclusive promotion that you’re allowed to box under during the terms of contract and that’s just an answer…Just a question I don’t know the answer to at this point you may know.
Now would an exclusive TV Network contract, like certain fighters such as Sergey Kovalev who have an exclusive deal with HBO; he’s not allowed to go fight on Showtime or CBS, so could that be construed as the same thing, a restrictive contract?
That’s interesting. I mean I guess who… when he gets his paycheck who is that coming from? Is that coming from H.B.O?
I do not know that to be honest.
It would really boil down to where, who’s paying these fighters who’s paying their boxers right so who is giving them their 10-Are they getting a 1099. I would assume they’re getting a 1099 when they get their wages as opposed to a W-2. But on a 1099, with what entity is responsible for the payment, and then work backwards from there to determine what the entity is and then figure out what control that entity is has over the boxers, and is it enough control and discretion to make an argument that they are in fact employees and not independent contractors and so for instance or not to get too much into the legal ease of this but there was a 2014 decision by the by the National Labor Relations Board which involved Federal Express drivers which had always been classified as independent contractors and they went through these eleven factors and found and this was actually even less control than you see certainly in the UFC and maybe even with boxing because these individuals they leased their own trucks they were allowed to go work for other entities but they found that the Fed Ex still had a significant amount of control over those individuals to be declared employees. That was kind of a shift because in that decision it was always a ten-factor test before that, they added the eleven factors which actually made it easier to produce a finding of employees status. The law certainly has gone in that direction. That could certainly change next year once Mr. Trump may have the ability to appoint three new members to the National Labor Relations Board.
Who knows with that, right?
You’ve mentioned on twitter earlier today in reference to former UFC strawweight champion Carla Esparza having to sell her Harley motorcycle she won on the ultimate fighter, “will take grassroots unionizing led solely by fighters w/o outside influence. Get to the bargaining table and fix the profession.” Now obviously you are talking about MMA here but I think this can be ascribed to and fitted with boxing as well. Now do you think an union or association can do it without any corporate donor-ships…fighters that are usually underpaid have enough to do this without outside influences?
It’s a great question and it may required a twofold answer is the reasoning behind the tweet… That I’ve seen…unfortunately even in the MMA world, I’ve seen these drives start and fail because in order to in my mind in my experience in order to succeed the individuals who are going to be affected by a potential collective bargaining agreement or the union itself need to be the ones making the decisions within the organization and if you have entities or individuals associated that have ulterior motives then it could be led astray in the wrong direction. I think it really succeeds when those who are going to be affected are the ones leading the charge and the ones making the decisions now with that said obviously unions are going to hire professionals whether it’s labor lawyers or down the road labor economists So that’s you know they’re not going to they’re not going to go to the table without you know professional representation but the but the individuals the fighters, they should be the ones making those decisions who to hire who to fire now in terms of financing so to speak. If you’re a labor union in this in this country you’re subject to a statute called the Labor management Reporting and Disclosure Act which actually has significantly strict guidelines as to what money can and can’t go in out of a labor union. So from the ground up for instance let’s say you had an established union and I always use the Teamsters just because it’s a well known union and they’re very large in this country but if you had a union like the Teamsters That said we do organize the U.F.C. fighters. Well the Teamsters, which has deep coffers, obviously could use their money to start an organizing drive. Now if you didn’t want to be affiliated with a larger union which has its downsides then really it’s got to come from donations from within the group and that’s typically how the union organizing drives especially independent unions start out so certainly there’s not a lot of money at the forefront until you start collecting dues and that’s just the reality of the situation so my firm helped the major league soccer officials unionized from the ground up. They didn’t have a union on the property they put together a union they went to the N.L.R.B. process in election and they negotiated their first C B A and they didn’t have a lot of money to begin with either and so we wrote off a substantial amount of legal fees which probably is not the best business practice but you know it is as an as a labor firm you know we believe in the process and getting the representation but now there are very successful union three years in so and that’s a much smaller group that’s only a group of about seventy six individuals so if you’ve got a number of fighters on board. You know obviously the ones not making as much money couldn’t donate as much money to the cause maybe it’s a very small amount and maybe it’s nothing but maybe fighters with a little extra money to spare would put in a little to the to the till just to get the union going but that’s pretty typical of independent unions that start from the ground up is they’re not going to have money at the beginning. So they’re going to do a lot on their own and hopefully there’s individuals or professionals out there who believe in the cause as well and put in some pro bono work up front.
Does a grassroots union need big name fighters/boxers to sign on in order to truly make change…can it be jus the undercard guys?
Yeah, it’s a great question and a question I’ve been asked before. There’s definitely some individuals out there that think, “Oh you got to get the big names on first.” And I think from press coverage and a media perspective that certainly helps because that’s a story. And you know if you had I mean if you had Deontay Wilder or you had a Conor McGregor and they were leading the charge that’s a big story but then in another respect if you think about it in the inverse you know it wouldn’t surprise me so much if Conor McGregor did that because he’s at a point where he’s got substantial leverage with the U.F.C. just based on who he is and what he’s done. And so he’s not going to be in as much fear of recrimination as someone who’s fighting on an undercard and feels that they can be cut anytime. So I think actually if you were to if you were to establish a union and it started out with these undercard fighters and they did a majority of the leg work and they demonstrated to their colleagues that this was a fighter driven organization that I feel actually in the long run that would probably be the more the stronger union platform than to just rely on big name value and…
And flash upfront, I guess it sells a good story but remember the goal is to get a functional union that is going to get on the property and then once you’re in then you hold an election for an executive board and at that point maybe the big name individuals put their name in like the National Basketball Players Association. Chris Paul is the president LeBron James is the first vice president but it wasn’t always like that for a while you had you know middle of middle road or tear players serving on the union’s board so I actually think in the long run it could be more effective to get the individuals who are willing to put in the time the effort to construct it from the ground up and I think that would create a stronger entity going forward.
Paul Gift, of BloodyElbow.com, recently put out an investigative piece on the Golden Boy/Al Haymon deposition, have you seen it?
Oh no I have not.
I’ll send you a link it’s pretty fascinating. There’s an excerpt from Michael Ring, who works with PBC, and he basically said PBC has tried to be like the UFC in a sense, and a goal for PBC and boxing to end up like a league, like the NFL.
Excerpt: “There were conversations in which analogies were drawn with the UFC because obviously they’ve had success, to a degree. So there were dynamics of it that were discussed. But I—once again. I would say that we discussed the league-like model and the idea of a league and the idea of rights fees for a league as a crucial element of making this project work…I think in an ideal model, there’s a minimum amount that would be paid to the fighters and then there’s a sharing arrangement like the NFL.” Michael Ring
I wanted to get you opinion on if PBC turns and boxing turns into more of a league, would that actually make it easier to unionize?
No question. Absolutely because then you’ve got a single entity that you can focus on that you’re going to have a much stronger ability to make an argument that that their employees and not independent contractors and then once you get in and you do unionize you’re dealing with a single entity management and at that point then you would look to negotiate a revenue split like you see with most other professional sports which is typically 50/50. Except in combat sports it’s not even close to that from everything that I’ve read.
Yeah and obviously you know we don’t have that much information to look at because these companies are private corporations but there are some…
That’s another good point. You’re right about that and then under the National Labor Relations Act the union has the ability to request all relevant information to negotiations process or the grievance process and that doesn’t per se include all of the financial information but if an employer or a management-if they plead poverty at the negotiating table. So if the union makes a proposal for some sort of compensation or revenue sharing package and the response is, “we can’t afford that.” Then at that point it triggers your right to have them open up the books.
Interesting. There are some in the industry that say boxing can’t unionize. There’s no single major promoter, it’s too fragmented, and it already has the Ali Act, etc. etc. so in your opinion will boxing ever get unionized?
I do agree that I think it would be more difficult than the path that’s going on with the U.F.C. right now just because you do have that single entity you can focus on and it does seem in boxing there’s just a number of different promoters and promotions and what I would be interested in is there a consistency in where these boxers are getting paid from and but if as you mentioned the sport does move more toward a U.F.C. model or a single entity model then I don’t think that that the statement that they’ll never unionize would even be remotely close to being true I think. If that was the path that the sport would take and I think that would be the perfect time for the athletes to really get serious about unionizing and then if an analysis of the present state demonstrated that that the legal odds of painting employees status and unionizing were not in their favor I think at a minimum they could put together some sort of you know boxers Association, and get individuals included in the association they wouldn’t be able to negotiate for anything up front but at least you’re now building the solidarity that you would need to at some point to maybe turn into a union and there’s also other things you could do as an association you could pool your money and you could go to an insurance broker and try to, depending on the number of people that are involved, you know get better deals on medical insurance and things of that nature. So you know an association would help on the front end and then once you’ve built the trust in that association. If there were a path to unionize then you’ve already done all of that legwork and it would be a much quicker path than you see the MMA fighters are struggling with right now.
As someone who spent their adult life striving for athletes to get rights, what do you have to say to the people that discredit unionization as potentially ruining the consumer product due to the lack of monetary surplus in the industry compared to the NFL or NBA?
I would disagree because the money-It’s not as it’s going to take additional money to make that happen. It just means that the people at the top of the UFC are not going to be getting as much of the revenue so this new ownership group would not be making as high of profits to line their pockets that the money would just be shifting directions from the very few at the top taking away all of the hundreds of millions of dollars to a spreading or an equaling of that money over the fighters and I actually think it would result in a better product in the long run because you’re going to have fighters who now are currently struggling and they may have to be working two or three different jobs. They are in some cases actually paying to fight in the U.F.C. once they pay their trainers and their gym fees and their coaches. And you’re making $10,000 and $10,000 and if you lose you’re coming away with $10,000 before taxes so I think if you had a workforce of fighters who didn’t have to worry about where that next paycheck was coming from or whether they were going to have health care or post employment retirement benefit, that you’re going to actually have a better athletic product or that you will put in front of the fans and at that point the U.F.C. will start bringing in more money and everyone will prosper from it. So I think in the long run it will create more stability within the sport than what we see right now.
When boxers read this, and start to actually think about making progressive changes in their sport, what are the steps they should be taking right now?
I would say that the first step of someone who’s potentially interested is to learn more about the process of becoming unionized and if you do become unionized the bargaining process and what that could mean in the protections that are involved because the more that I talked to UFC fighters who didn’t really understand the process and that’s not surprising. I mean most of this country doesn’t understand the unionizing process. This country is not as heavily unionized as people think and the union numbers have been dropping over the years. So that’s the first step because I realized in talking to the U.F.C. fighters that that once they understood the process and what the bargaining situation entailed in the legal leverage you could pull they seem to become more and more comfortable with the concept and the idea so I would say education educating yourself is the first step and you know listen my e-mail address is on-line and you know I would welcome anyone if they’re interested to shoot me an email and I’ve taken the time, my own time, to talk with a lot of U.F.C. fighters and I would certainly pick up the phone and talk to anyone who had some questions.