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By Jaclyn Diaz
Leslie Smith, a mixed martial arts fighter who says her career was derailed after she tried to form a union, plans to appeal a decision that rejected her allegations of labor law violations by the UFC.
It’s a long shot, labor and employment attorneys and former members of the National Labor Relations Board told Bloomberg Law.
Smith’s case in front of the labor board was the topic of a recent panel discussion organized by the School of Management and Labor Relations at Rutgers University. Wilma Liebman, a former NLRB chairwoman, was a panelist.
“Unless they have powerful arguments, they don’t have great chances,” Liebman told Bloomberg Law, referring to Smith and her attorney. But the two can likely find success through other legal alternatives, Liebman and others said.
Smith filed a charge with an NLRB regional director that was dismissed. Her attorney, Lucas Middlebrook, said he understands that winning an appeal of the regional director’s decision will be tough. So he’s already exploring other options.
Smith already filed a wage claim with the California Labor Commissioner’s Office for allegedly unpaid expenses associated with her time with the UFC. That office enforces workplace labor standards across California, where Smith resides. A meeting with a state investigator is set for January, Middlebrook said.
The UFC declined to renew Smith’s contract in April, months after she started Project Spearhead, an association of professional mixed martial artists created to organize UFC fighters.
Smith filed the NLRB charge in May, alleging her contract was ended in retaliation for organizing. Smith also alleged that she and other fighters were misclassified as independent contractors for the UFC and should be considered employees of the organization. Unlike contractors, employees receive benefits such as health care and have certain protections under federal law.
The NLRB’s Philadelphia regional office notified Smith June 29 that the regional director found merit in the case and would be issuing a complaint against UFC. That changed when the case was sent to the Division of Advice at the request of the NLRB headquarters in Washington, D.C., Middlebrook said. The board’s general counsel, Peter Robb, recommended the Philadelphia office dismiss the case, which was done Sept. 19, he said.
The appeal will filed by the Oct. 3 deadline, Smith said.
“We lost this battle, but maybe that opens up more doors that can lead to a bigger opportunity,” she said.
The NLRB and the UFC didn’t immediately respond to requests for comment.
Liebman and William Gould, another former NLRB chairman, said this appeal will be especially difficult.
“It’s very unusual” for the board to reverse a regional director’s decision, Gould said. That’s particularly true when the general counsel has stepped in, as happened in this case, he said.
The facts of a case remain the same on appeal, and unless a mistake was made by a regional director in interpreting the law, the decision stands, he said.
Smith’s appeal will also go to the Office of Appeals at the NLRB, which is a division under the Office of the General Counsel.
“We’re appealing to the person who just rendered the punishment, but we have to do it,” Middlebrook said.
Smith is not without options, though. She can go to the state level, like she did in California, or the federal level, labor attorneys agreed.
Retaliation for protected activity complaints can be made to the state human rights commission, labor office, or to the Equal Employment Opportunity Commission, said Donald Schroeder, with Foley & Lardner LLP. California labor laws are worker-friendly, which could be to Smith’s benefit, he said.
If those remedies are exhausted, a lawsuit claiming retaliation under the Fair Labor Standards Act could also be filed, he said.
“Nothing would prevent her from going to federal court to file either individually or for a class action under the FLSA,” Schroeder said.
Middlebrook hasn’t ruled that out. Smith also filed a retaliation claim in the Golden State, but that was dismissed.
Her attorney also hasn’t ruled out filing a wage complaint with the state of New Jersey, where Smith’s contract with the UFC was terminated.
Smith is still collecting authorization cards from fighters and intends to take a representation petition to the NLRB.
A climate of fear persists among fighters because of how Smith was treated, and other fighters are concerned about their careers, she said.
Since leaving the UFC, Smith hasn’t joined another mixed martial arts promoter, but she continues to train with the hope of getting in the cage again.
“I feel like the fighters all need representation. I just see the path in helping UFC fighters,” she said.
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