Labor lawyer Lucas Middlebrook recently joined Wrestling Inc. Managing Editor Nick Hausman on The Wrestling Inc. Daily to discuss unionizing in the professional fighting world. Middlebrook has worked with numerous leagues to help their talent unionize, specifically referees in the NBA and MLS.
“I serve as counsel to the National Basketball Referees Association, which is the union that represents the NBA referees,” Middlebrook said. “My firm has been representing them for a little over ten years. I also represent the Professional Soccer Referees Association, or PSRA, which is the union that represents the Major League Soccer officials. That one is actually very interesting because in the 2012, 2013 time period, that group did not have a union, and they were treated as independent contractors.
“That group took it upon itself, they heard through the grapevine that we represented the NBA referees and reached out. I actually assisted with their organizing drive, and they went through a contested election at the NLRB (National Labor Relations Board), they collected cards, they went through with an election, and they were certified as the representative in 2013. They are actually on their second collective bargaining agreement now. Their terms and conditions have ameliorated quite significantly since prior to being non-union.”
From there, Middlebrook has gone on to represent UFC fighters, which has served as a gateway into working towards unionizing mixed martial artists.
“I also have represented some fighters in the UFC. I represented Nick Diaz in 2015. That was not with respect to union issues but instead I represented him in front of the Nevada Athletic Commission after Nick had tested positive for marijuana in his fight with Anderson Silva,” Middlebrook said. “From that representation, I got involved in an organizing drive of fighters at the UFC called the Professional Fighters Association, or PFA. That involved a baseball agent by the name of Scott Boras. That percolated along for a little while, and that’s where I met Leslie Smith, who was a former fighter in the UFC who then started her own drive in the UFC. I also represented Leslie when she filed a charge with the National Labor Relations Board after she was let go for what we believe was her union activity at the UFC.
“I also represent a number of unions in the airline industry. The Southwest Airlines mechanics, the Southwest Airlines flight attendants, mechanics at Alaska Airlines, and some others as well.”
Middlebrook gave some insight into Leslie Smith’s unique case with the UFC, noting that there are some inconsistencies with how it progressed through the system.
“That was a first for me, to initially be told at the regional level,” Middlebrook said. “Without getting too deep into the murky details, when you file a charge at the NLRB, it’s filed at the regional level. So the NLRB is divided across the country at these different regions. You file based on the region that is appropriate, you know, where the wrong occurred or where the employer is located, or something along these lines. And so in Leslie’s case, we had filed in Region 4, which sits in Philadelphia. And so what happens is that region assigns an investigator. And then that investigator investigates the charge, they speak with both parties, and then eventually they come up with a recommendation. That region then decides whether they are gonna issue a merit determination, which is essentially, ‘Yes, your charge has merit. We, the NLRB, will file a complaint against the employer in the event that you can’t reach a settlement.’
“So we, when I say we I mean Leslie and myself, were advised in June or July of 2018 by an investigator that they were prepared, they being Region 4, to issue a merit determination in Leslie’s favor on two important issues: One, a merit determination that UFC fighters were misclassified as independent contractors, and two, that Leslie had been retaliated against because of her union activity. So you can imagine that Leslie was elated, we were very happy, but unfortunately that happiness lasted for about a total of eight hours. That same day I got a call back from the investigator that DC, specifically the Division of Advice, which at the time was headed up by a former general counsel Peter Rob, who has since been fired since Biden took office, and they took the case. After Region 4 had said, ‘We’re going to issue a merit determination and have some settlement, we will issue a complaint against the UFC.
“And then it stagnated for a few months. I did have a two-hour meeting in DC with Peter Rob and I think about six other NLRB attorneys, which interestingly enough, they would not let Leslie attend, by the way. Unfortunately, they dismissed, I say the Division of Advice, the dismissal actually came on Region 4 letterhead, but it came like it was actually written by the Division of Advice. Unfortunately, our only appeal rights after that went right back to Peter Rob, who we believe had penned the dismissal letter initially. As you can expect, our appeal was denied as well.”
Later down the line, Middlebrook recalled running into a former NLRB chairman who was equally as confused with the convoluted ruling of Leslie’s merit determination.
“Interestingly enough, Leslie and I did a panel discussion shortly around that time period at Rutgers School of Labor Relations, and the third member on that panel was a former chair of the NLRB,” Middlebrook said. “And she had some interesting thoughts, including that she had not seen such a situation where the region had made a merit determination, and that it was taken away by Division of Advice.”
Since then, many things have begun to change. Middlebrook noted that since Joe Biden took office as President of the United States, the Division of Advice has gone under serious internal reconstruction.
“What happened was literally on the day Biden was inaugurated, the Biden Administration sent a letter to Peter Rob saying, ‘You have 24 hours to resign, or you’re going to be terminated,’” Middlebrook said. “And he refused to resign, so they terminated him. So then what happened was his deputy attorney general took Rob’s position, and then that person received a similar piece of correspondence from the Biden Administration, which was, ‘You have 24 hours to resign.’ I’m not sure whether that person resigned or was fired, but essentially what they did was they named an Acting General Counsel, because it is a senate confirmation position.
“So the Acting Attorney General used to be the regional director out of Chicago, which interestingly enough, was heavily involved in the decision making process of the case, if you’ll remember, when the Northwestern football players tried to unionize, which initially had favorable results for those football players but was eventually overturned by the entire NLRB. That individual is now the Acting Attorney General at the NLRB, and we just saw today that the White House has nominated Jennifer Abruzo to fill that position permanently. She has worked in the NLRB previously, and I think her most recent position was counsel at the Communications Workers of America, which is a pretty sizable union in the country.”
With new administration being brought in, the question of re-trying Leslie’s case has arisen. While Middlebrook is unable to comment on their future plans, he did confirm that the two are “discussing [their] options.”
“Leslie and I are currently in discussion over that issue, so I can’t really comment on our plans and our strategy related to that,” Middlebrook said. “But I can leave you with this, Leslie and I are discussing our options.”
You can follow Lucas on Twitter @lkmiddleb. You can find the full audio and video from Lucas’ interview embedded below.