Why Isn't There A Union In MMA?

Jonathan Daniel

Are fighters getting the short end of the stick in MMA? Is the answer a union? John S. Nash discusses what options are available to fighters with a pair of experts.

Fighter pay, or the lack thereof, has become a hot button issue within the UFC lately. Several former, and even some current fighters, have openly complained about the level of compensation in the biggest and most important promotion in mixed martial arts. The solution, invariably touted by many fans, and increasingly by fighters, is unionism. But is that the answer to the fighters' ills? And if so, why haven't we seen one yet?

Since my own knowledge on the subject is rather limited, I thought it would be prudent to speak to some people that could offer a little more insight. Therefore, I recruited the expertise of Dr. James B. Dworkin at Purdue University North Central, an authority on unionism in professional sports and author of Owners Versus Players: Baseball and Collective Bargaining; and Professor Zev J. Eigen, former labor relations Senior Counsel for Twentieth Century Fox Film Corporation and current labor law professor at Northwestern University who also contributed on Jonathan Snowden's article for Bleacher Report examining Eddie Alvarez's UFC contract.

Speaking first to Dr. Dworkin, I started our conversation by asking him why the subject of unionization is an important one for fighters and fans.

"I don't think the fans really care much if the fighters are in a union or not," Dworkin said, "but it makes a big difference to the athletes. Collective voice gives these athletes a better way to represent their interest with ownership."

One of those interests is obviously the payment. There has been a large amount written and said on the subject recently, with Tim Kennedy's interview, in which he claimed that even he - a fighter in the top 3% - could make more emptying trash cans, probably getting the most attention. Comments like these not only haven't sat well with the UFC brass, but they also annoy some fans, many of whom question why a fighter should expect to make more than any other blue-collar worker. For Dworkin, the answer is quite simple:

"It all boils down to supply and demand. I could go out on to the street here and talk to 100 young men, and most would probably say they would love to be a professional baseball player and make a million dollars, but the problem is they can't throw a ball, can't hit, can't run. The number of people that have these skills to perform this is very small. Given that it is such a scarce supply, you should be able to command a large wage for what you do. I imagine it is the same with fighters. That there aren't many people that can do what they do."

If there is a very limited supply of "people that can do what they do," why then are fighters not commanding higher wages? According to former UFC fighter Nate Quarry, the reason is simple: "They have next to no negotiating power whatsoever. One big organization basically dictates whatever happens."

The situation that fighters currently find themselves in is not unique to mixed martial arts or new to sports, according to Dr. Dworkin. "[MMA] sounds very similar to what you have in team sports," he explains. "In team sports, they have what's called a monopsony. What that means, instead of one seller, which is a monopoly, you only have one buyer of services and that is a monopsony."

By banding together as leagues, the teams of the Big Four major league sports are the dominant buyer in the world market for elite talent of their respective sports. One can argue that a nearly identical situation exists in MMA, but instead of a league, we find one company, the UFC, holding the dominant position over the market of elite level MMA.

What balances out the monopsonistic powers of the leagues in team sports is the fact that the players have established unions that give the players monopoly power over the sale of elite talent. That, of course, doesn't exist in MMA.

But is this a fair comparison since there are other promotions serving as competition? If fighters don't like what they're getting from the UFC, can't they just go fight for Bellator, World Series of Fighting, King of the Cage, or any one of the other numerous, albeit much smaller, promotions?

"Well yes," says Dworkin, "but it would be like telling a baseball player who plays for the Detroit Tigers that, if you don't like it, you can go play for a minor league team. They really are not the same thing."

That is the crux of the problem for many fighters. While there are other places to fight, the gulf between them and the UFC is so great that they almost constitute a completely different market, just as the minor leagues are not viewed as being in the same market as the major leagues, despite playing the same sport.

To demonstrate this, one only has to compare the UFC with the current number two, Bellator. The UFC has a television deal that is estimated to be worth $100 million a year, regularly sees multi-million dollar live gates, has major blue chip sponsors, lucrative merchandise and licensing agreements, and sells millions upon millions of pay-per-views every year. In comparison, Bellator's revenues from TV, gate, sponsors, and licensing are thought to be only a fraction of that, while their pay-per-view market is non-existent. The UFC's share of the MMA market in North America has been estimated to be as high as 90%, dwarfing all other promotions combined.

This type of disparity in power, says Dworkin, led to unionization in other sports. As an example of how profound a difference it can make, he points to what Marvin Miller and the Major League Baseball Players Association were able to accomplish in a few short years. Winning the right to free agency in 1975, they saw their pay as a share of total revenue climb from about 20% to almost 40% over the next five years as average salaries more than doubled.

According to Dworkin, the short career-span of an athlete makes it imperative that he maximizes his earning as much as possible. "What happens to the typical fighter that is 27 and his career is coming to an end? They don't have 40-year careers. For most, they have maybe five or six years in which to make money at best. I assume if you are one of these fighters, you don't have many alternatives or a better alternative. Basically, you would like to make as much money as possible in that short time span, and if management, or who ever the owner is, controls everything, how much are you going to make if it's take it or leave it?"

Many would answer they should then "leave it." This type of reasoning doesn't sit well with Prof. Eigen.

"Its just a silly thing to say," Eigen says, "to observe someone getting a bad deal and saying they must love it. It is true that employees will tolerate a bad deal because it is better than the alternative. For example, what if someone offered you the choice of getting beaten 100 times or getting beaten 50 times? If I only observed you making the choice to get beaten 50 times without observing you turning down the alternative choice of getting beaten 100 times, I might wrongly conclude that you love getting beaten. I know it's kind of a ridiculous example, but the point is, when you observe someone taking a bad deal you can't always say 'Well if they are taking that deal they must be happy.' Not true. You have to compare it to their alternative to the exchange. If the alternative to exchange for most fighters is no better than what they are currently getting, then what is their choice?"

A mistake many make, says Eigen, is focusing only on those doing the best. Figures like the number of millionaires the UFC has created (70 according to Lorenzo Fertitta) are not that informative, according to Eigen.

"I want to know how many fighters are earning approximately minimum wage fighting or even taking a loss because the costs of fighting are more than what they make. If the UFC made 70 millionaires, that's great. But if the other part of that is that the UFC also made 5000 people who are now penniless and have disabilities and can't work or have medical bills that are so crushing that they are now in debt, or are now living in significant pain and can't work anymore, then how important is the number of millionaires the UFC made? You kind of need to know that figure to figure out what is really going on."

The disparity in power between the fighters and Zuffa leads Eigen to one conclusion.

"Fighters really need a collective voice to assert and protect their rights and interests. One fighter cannot just stand up by himself and protect himself. It just can't happen. This is just classic labor law 101."

So, if the fighters in the UFC did decide to unionize, how would they do it? The rather straightforward process can be explained in three simple steps:

Step 1: Get at least 30% of the roster to sign authorization cards signifying their desire to be represented by a union, and then present these signed cards to a Regional Office of the National Labor Relations Board (NLRB).

Step 2: Once the NLRB has certified these signatures, they would hold and supervise an election during which the fighters could vote "yes" or "no" on unionization.

Step 3: If the majority voted "yes," then the fighters of the UFC would now have their own union, which could then immediately enter into negotiations with their employer on their behalf.

Unfortunately, as simple as that sounds, it would not be that easy. Two very important hurdles are in the way.

The first can be found in the very nature of the sport. "In baseball there are teams," Dworkin notes, "but if everyone is an individual player [in MMA], that makes it much more complicated." What Dr. Dworkin means is that, unlike in baseball or football, the athletes of MMA do not have the luxury of being together during pre-season and the long extended regular season, where they can gather to discuss the merits of forming a union, create organizing committees, plan strategies to collect the required signatures and win the vote, etc. Instead, the UFC has a roster of up to 400 active fighters spread across the far reaches of the globe, who rarely see each other outside of a handful of fellow UFC fighters in their gym or camp. Of this number, there is also a sizable amount of turnover. After every event, fighters are let go while new names are signed to the promotion. Convincing and obtaining the signatures of thirty percent of an ever-changing roster from around the world in the face of likely resistance from the owner is nothing short of a herculean task.

Even if the fighters could somehow accomplish this first step, it wouldn't matter, for the whole process would be stopped cold by the second hurdle: their status as independent contractors.

"[Being an] independent contractor is a big problem, because you can't form a union", says Dworkin. "You'd have to first challenge that status. They [the promoters] like the independent contractors because they can set all the terms and conditions."

While Eigen argues that UFC fighters should probably be classified as employees based on how restrictive their contracts are, as long as they're not, under federal law, independent contractors can not legally form a union. Any attempt to do so would be rejected by the National Labor Relations Board. Thus, the idea of an MMA Fighters' Union is dead before it's even born.

This doesn't mean the fighters are out of options, though.

"Another option," says Eigen, "which is open to independent contractors is an association. Fighters could look at this to gain some of the same benefits from a union."

A union is an organization of workers who act jointly to negotiate benefits and rights within their workplace. An association is a non-profit organization that promotes a profession by maintaining standards and advocating its interests. Because unions directly negotiate on behalf of the employees, they are allowed under the National Labor Relation Act to collectively bargain and strike if necessary. Neither of these tools is available to an association. That doesn't mean, though, that an association would have no impact on the fighters' current conditions.

"Having an association is going to give you better protections than having no representation at all," says Dworkin. "It could help them get better wages, better health coverage. Another reason is the safety issue. With concussions being a serious thing, you want someone representing their safety concerns issues other than the owners."

Jon Fitch brought up similar concerns during a World Series of Fighting press conference when he discussed what he would like to see changed in the sport.

"... giving fighters a voice, you know, because we don't get a say in rules, we don't a say in TRT use or marijuana use or anything that commissions decide. Everything is left up to promoters and commissions. The fighters need a voice somewhere. Our rights need to be represented, and our feelings need to be represented somehow."

An association could advocate for the fighters' position on a number of issues with legislators and athletic commissions, giving them a say on some of the most important matters for their profession.

An example of the type of legislation that an association could lobby for that would have a profound impact of the careers of its members would be something like a "Fighters Bill of Rights." Just as the Muhammed Ali Reform Act regulated some of the more egregious and exploitative business practices in boxing, an association could promote a Bill of Rights that regulates such contentious issues as the control of image rights, automatic contract extensions (such as the Champion's Clause), lengthy matching periods, non-guaranteed contracts, or anything else fighters find objectionable in their contracts.

All of these issues greatly affect the leverage and earning potential of each and every fighter, from those at the bottom of the card to those that headline. While individually fighters would have little chance of pushing through such regulations, collectively the association could lobby on their behalf, just as the UFC lobbies for its own interests. An added benefit is that, while the Ali Act is regularly ignored, a Bill of Rights would have the backing of an association to give it teeth.

"Fighters' Bill of Rights is a great idea," says Eigen. "It could come about without an association or a union, although its more likely with one, but the enforceability of it is something you really need a union or an association to make sure it happens. Because any standard or rule in those bill of rights without it being enforced is meaningless. Even if there are egregious breaches, fighters are in a bad situation without an association or union. What's a fighter going to do if something is bad for the fighter or a serious breach? ‘Sorry about that. Good luck, because you're never fighting for us again.'"

While an association could help give a voice to the fighters on a whole range of issues - testing, TRT exemptions, pay minimums, judging, refereeing, rule changes - it also could prove beneficial to the UFC with regards to their own lobbying efforts. "I imagine," said Eigen, "that it would be harder to argue against [sanctioning MMA] when it's the fighters advocating for it and not a lobbyist for a huge corporation looking to expand its market."

In comparison to a union, with its mandatory collection of signatures and NLRB supervised vote, the forming of an association is a much simpler process. All it really takes is for someone to decide that there needs to be a Mixed Martial Artists Fighters Association. (In fact, someone already did.) Of course, there's more to it than simply declaring one. Organizing, drafting mission statements, determining leadership, financing, and a host of other items still have to be taken care of, for it to be effective. An association's strength corresponds to the amount of support it has among the fighters.

An example of how another sport's players association was able to affect change is provided by the Association of Tennis Professional and their dispute with the Men's Tennis Council in the late 1980s. While under the guidance of the MTC, the professional game had seen a tremendous amount of growth and progress over the previous two decades. Prize money had skyrocketed, with the total amount paid out at the US Open having gone from $227,000 in 1974 to $4.3 million by 1988. At the same time, players were disgruntled, feeling abused by the International Tennis Federation and independent promoters, and frustrated by how small a voice they had in the sport.

During the 1988 US Open, after failed negotiations with the MTC, an impromptu press conference was held in the parking lot. There, ATP CEO Hamilton Jordan released a critique of the sport, "Tennis at the Crossroads," outlining the problems and opportunities facing men's tennis. One of the options available to the ATP was the formation of a new circuit, the ATP Tour. In a show of strength for the ATP and its new Tour, over 85 of the Top 100 players signed a letter of support.

By acting as a single-entity in conjunction with the tournaments, the ATP player members have been able to increase their compensation substantially since the inception of the current ATP structure in 1990. In fact, this year they pressured the four Grand Slam Tournaments into another pay hike, instituting a sizable, across-the-board increase in prize money.

Another option, in place of a union or association and which has been suggested by several fighters, is for fans to pressure promoters to improve conditions on their behalf. While Eigen understands why this would appeal to the fighters, he doesn't think much will come of it. "How many times have people tweeted or 'liked' something because they support a cause? Everybody feels good for a week or two, but soon we've moved on and nothing really has changed. If fighters don't come together to protect themselves, they shouldn't expect things to get better. While I don't think it hurts, and it probably does help a little bit, for the fans to be supportive while they try to do something very hard, in the end, if they want to make a permanent change to their condition, they have to do it themselves."

Neither should the fighters begin looking towards management for help. In fact, they can probably expect the opposite. "[The owners] probably would play hardball," says Dworkin, "because the bottom line is that it will cost them a lot more if these athletes do get organized."

Many fighters seem to think the owners are already playing tough.

According to Fitch, "they're absolutely terrified," while both John Cholish and Tito Ortiz say they're "afraid" to speak up. Why should fighters be afraid? Thanks to the UFC's contracts and their position in the market, along with the nature of the sport of MMA, they have a tremendous amount of leverage they can bring to bear upon a troublesome fighter. They have complete control over the scheduling of a fighter's next match, who his opponent will be, as well as his placement on the card. They also have the right to cut a fighter after any loss. Even if they never actually take advantage of any of these things, fighters are aware of their ability to do so, and act accordingly

"You don't hear anything," Nate Quarry told me during our conversation last month, "because if they complain about it, they're afraid they'll be labeled as not being a company man. And you do not want to be labeled as not being a company man. If you're not a company man, you worry they won't promote you. Won't push you. Your future, your career is dependent on visibility."

While there is no evidence that they were punishing him, the fact that Tim Kennedy, a fighter who received a lot of attention for his criticisms of fighter pay, was also the only fighter on UFC 162's main card to not receive a post fight interview, did not go unnoticed. Other fighters may worry about being bumped further down the card, where sponsorship money is much smaller, having to wait longer for their next fight, or being moved out of contention for title matches that are determined solely at the promotion's discretion. John Cholish confirmed to Bloody Elbow's Stephie Daniels that fighters were worried about receiving less advantageous match-ups or being cut if they spoke up. Other fighters have made the same observation, including Travis Browne, who told MMAJunkie that "[Todd Duffee] basically got cut for what he said" and Jon Fitch, who spoke of entering his fights with the "fear of losing my job," if he lost.

Even something like the UFC's discretionary bonuses, which are often presented as being done for purely altruistic motives, also give the promotion more leverage over its athletes. While most fighters express gratitude for receiving bonus checks that the company was not contractually obligated to pay, there is also the unspoken knowledge that since that money is not guaranteed, they come with strings attached. In his interview with Stephie, Cholish was specifically asked if he felt, "that these discretionary bonuses offer fighters an incentive to not speak up or make complaints?"

Cholish's answer: "... it could kind of be seen that way, 'If I say something or if I complain, what am I going to get?'" This is how some have read Dana White's recent suggestion to do away with bonuses; as a thinly veiled threat to fighters if they continue to gripe publicly about money.

According to Eigen, nothing will change for the fighters until someone or some group of fighters is willing to "bell the cat":

"It's like Aesop's parable, where a bunch of mice are worried about the cat that always comes around to eat them one at a time, every day. Finally, after they can't take it anymore they get together and come up with a great plan to stop it. They'll hang a bell around the cat's neck so whenever it comes around they'll be able to hear it trying to sneak up on them and they'll be able to run away. Great plan, but the hard question is who's going to risk her life to put the bell on the cat? If no one is willing to step forward and bell the cat, then nothing will ever change."

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