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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

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

BEFORE THE UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

* * * ZUFFA, LLC d/b/a, Ultimate Fighting Championship (“UFC”) -and- Leslie Smith

) ) ) ) ) ) ) ) )

UNFAIR LABOR PRACTICE

CHARGE AGAINST EMPLOYER

I. INTRODUCTION

1) Leslie Smith was the most vocal proponent of the need for her fighter co-workers in the

UFC to organize and bargain collectively in order to ameliorate the terms and conditions

of employment. She was, during all relevant times, the president of an Association,

Project Spearhead, which has been soliciting authorization cards from UFC fighters since

February of this year. The UFC was desperate to rid itself of one of the only fighters on

its roster willing to speak loudly about the benefits of unionizing while actively

organizing her colleagues. The UFC, blinded by its sheer arrogance and utter disregard

for its fighters’ Section 7 rights, effectively terminated Ms. Smith’s employment on April

20, 2018. The UFC’s decision to terminate Ms. Smith was based on the animus it held

toward her engagement in protected activity.

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II. PARTIES

2) The charging party, Ms. Leslie Smith (hereinafter “Ms. Smith”), was, pursuant to the

National Labor Relations Act (“NLRA” or “Act”), a statutory employee of ZUFFA, LLC,

d/b/a Ultimate Fighting Championship (hereinafter “ZUFFA” or “UFC”). Ms. Smith was

employed by ZUFFA as a professional mixed martial artist in the women’s bantamweight

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

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

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

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

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

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

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

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

does business under the name Ultimate Fighting Championship (“UFC”). ZUFFA is the

largest mixed martial arts (“MMA”) promotion in the world, and produces MMA

fighting events worldwide. ZUFFA is a statutory employer under the NLRA of the

MMA fighters that compete within its promotion1, and as such, employed Ms. Smith

from on or about April 2014 until she was unlawfully terminated in April 2018.

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 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 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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III. MS. SMITH ENGAGED IN CONCERTED PROTECTED ACTIVITY.

5) On or about February 9, 2018, Ms. Smith launched a union organizing drive named

Project Spearhead, intended to collect authorization cards from a minimum of thirty

percent (30%) of the professional MMA fighters employed by ZUFFA. In so doing, Ms.

Smith launched a website: www.projectspearhead.com, which was (and is) accessible to

public review. The Project Spearhead website, at all relevant times, plainly stated the

Association’s intended purpose as follows:

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

on the Project Spearhead website and accessible to public review.

7) Ms. Smith maintains and operates social media accounts on recognized social media

platforms such as Instagram and Twitter. Ms. Smith’s Twitter account (i.e., “handle”) is

@LeslieSmith_GF. On or about February 12, 2018, Ms. Smith posted the following

message on her publicly-accessible Twitter account:

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8) Ms. Smith’s launch of Project Spearhead and her efforts to organize her fighting

colleagues was covered in numerous media publications; including but not limited to,

print, audio and video coverage across multiple platforms beginning on or about

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

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

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

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

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

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

handle at conclusion of the message:

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

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

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

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

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

(“NLRB” or “Board”).

11) Ms. Smith also engaged in direct face-to-face and voice-to-voice protected union

organizing activity with her fighter colleagues following the launch of Project Spearhead

in February 2018 and continuing to and through the date of this filing.

12) Ms. Smith was involved in an active union organizing campaign at the time she was

terminated by ZUFFA on or about April 20, 2018. Ms. Smith, aside from her role as

President of Project Spearhead, was the most publicly vocal proponent of the need for

her fellow ZUFFA-employed fighters to submit authorization cards and unionize. Ms.

Smith was unquestionably engaged in protected activity as that term is construed under

Section 7 of the NLRA. Ms. Smith was publicly active in the exercise of her rights

under the Act to effectively communicate with her co-workers regarding self-

organization.

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

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

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

Guidelines,” which were unilaterally amended and issued by ZUFFA to its fighter

employees in December 2017.

14) Mr. Reed Harris, ZUFFA’s Vice-President of Athlete Development, advised Ms. Smith

he would be available to meet on or around December 27, 2018. Mr. Reed requested

that Ms. Smith provide her questions regarding the Promotional Guidelines in advance

of any meeting. On or about December 27, 2017, Ms. Smith sent a list of questions to

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

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

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

15) On or about January 4, 2018, Ms. Smith received e-mail correspondence from ZUFFA’s

Chief Legal Officer, WM. Hunter Campbell (hereinafter “Mr. Campbell”), which

advised Ms. Smith as follows:

Ms. Smith, Reed Harris was kind enough to pass along your document of questions as it 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 let me know your availability.

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

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

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

Mr. Campbell’s unavailability.

17) On January 24, 2018, Ms. Smith sent a follow-up e-mail to Mr. Campbell, which

explained she still sought to have a meeting to discuss the unilaterally implemented

Promotional Guidelines, but her correspondence went unanswered and no meeting was

ever held to discuss Ms. Smith’s concerns.

18) ZUFFA was aware that Ms. Smith engaged in concerted and protected activity through

the direct correspondence referenced in Paragraphs 13-17 herein. In addition, and as set

forth in Paragraphs 5-11 herein, Ms. Smith’s position as President of Project Spearhead

and her efforts to unionize her fighting coworkers at ZUFFA was covered widely by

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

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

19) On or about April 18, 2018, Ms. Smith sent ZUFFA representatives pictures of the

mouthguard she planned to utilize for her April 21, 2018 bout. The mouthguard

contained the words: “Project Spearhead” as well as the Association’s logo. Fighter

mouthguards are typically visible immediately before, during and after a fighter’s bout

and can be seen by the television and/or streaming media audience. ZUFFA was aware

Ms. Smith intended to utilize a Project Spearhead mouthguard less than forty-eight (48)

hours before ZUFFA took adverse action against her.

V. ZUFFA TOOK ADVERSE ACTION AGAINST MS. SMITH AND ZUFFA’S ANIMUS TOWARDS HER PROTECTED ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING REASON FOR THE ACTION.

20) Ms. Smith was scheduled to fight on April 21, 2018 at UFC Fight Night 128 in Atlantic

City, New Jersey. Ms. Smith’s April 21 bout represented the last remaining fight

covered by her Promotional and Ancillary Rights Agreement (hereinafter “Promotional

Agreement”) with ZUFFA. The scheduled fight was also subject to a bout agreement

with ZUFFA, which required Ms. Smith to be paid an amount of money, which

represented her “purse” (show money) and an additional amount of money in the form

of a “win bonus” (win money). The bout agreement provided that the win bonus was to

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

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

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

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

Jersey State Athletic Control Board.

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

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

in at 137.8 pounds, which was outside of the permissible limits. At this point, Ms. Smith

was under no contractual or regulatory requirement to continue with the bout against the

opponent who failed to make weight.

23) On the morning of April 20, 2018, Ms. Smith engaged in discussions with ZUFFA

regarding the possibility of adding two (2) additional fights to her existing Promotional

Agreement if ZUFFA wanted her to participate in the April 21 bout against the heavier

opponent that failed to make weight.

24) ZUFFA, primarily through its Chief Legal Officer, Mr. Campbell, refused to entertain

Ms. Smith’s request to add two (2) fights to her Promotional Agreement. Instead,

ZUFFA advised Ms. Smith, in writing from Mr. Campbell, that it had unilaterally

decided “to compensate Ms. Smith by paying both her show and win bonus for this

bout.”2 ZUFFA, through Mr. Campbell, also informed Ms. Smith, in writing, of its

position that the unilateral decision to pay the show and win bonuses “fully satisfied its

contractual obligations remaining under her Promotional Agreement.” ZUFFA, with

this written pronouncement, effectively discharged Ms. Smith from her employment.

25) Ms. Smith never agreed to accept the show and win bonuses as a quid pro quo for full

satisfaction of ZUFFA’s contractual obligations remaining under her existing

2 On April 6, 2018, ZUFFA President, Dana White, advised members of the media that the ZUFFA 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 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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Promotional Agreement. To the contrary, a representative of Ms. Smith replied directly

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

fight” on April 21 and inquired whether it would be possible to “get her show and win

bonus for this bout and allow her another bout under her existing Promotional

Agreement.”

26) ZUFFA, through Mr. Campbell, rejected the option presented by Ms. Smith in

Paragraph 25 and advised her, in writing, that “the fight was no longer going to be

proceeding.”

27) Ms. Smith received another piece of correspondence from Mr. Campbell on the

afternoon of April 20, 2018, which advised her that ZUFFA had “decided to not exercise

its Right of First Negotiation and Right to Match any Fighter Offers” pursuant to the

Promotional Agreement. Moreover, the letter advised Ms. Smith that she would be

removed from the UFC registered drug testing pool administered by the United States

Anti-Doping Association, of which being enrolled is a prerequisite to fighting in the

UFC. ZUFFA removed Ms. Smith from its public rankings, of which she was ninth (9th)

in the world, less than forty-eight (48) hours after advising her she had been terminated.

28) There simply can be no dispute ZUFFA took adverse action against Ms. Smith, and

based on the facts set forth herein and those to be uncovered in the investigation into this

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

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

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VI. CONCLUSION

29) Based on the facts set forth herein and those to be uncovered during the Board’s

investigation into this matter, ZUFFA committed an unfair labor practice and violated

Sections 8(a)(1), 8(a)(3) and all other applicable Sections of the Act when it took

adverse action(s) against Ms. Smith in response to her engagement in protected activity.

30) ZUFFA, through its unlawful actions against Ms. Smith, has further cultivated the

climate of fear currently existent within its fighter employees as it relates to engagement

in protected activity under the NLRA. Leslie Smith was one of the only UFC fighters

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

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

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

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

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

person or entity is above the law.

Respectfully submitted on: Date: May 2, 2018

By: __________________________ Lucas K. Middlebrook, Esq. lmiddlebrook@ssmplaw.com Nicholas P. Granath, Esq. ngranath@ssmplaw.com SEHAM, SEHAM, MELTZ & PETERSEN, LLP 199 Main Street, Seventh Floor White Plains, NY 10601 Tel: (914) 997-1346; Fax: (914) 997-7125

Attorney for the Charging Party – Leslie Smith