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UFC Athlete Outfitting Policy pushes boundaries of what it means to be an independent contractor

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Let's posit a very common scenario.

My kitchen sink is broken. I don't know how to fix it, so I call a plumber. On the phone, he or she collects information about the nature of the problem, my address and other essential items to determine if and how they can help me. They decide they can and I formally request their services. When they arrive, they do so in their own car wearing their own clothes. I do not tell them how to perform the job, only what I need done. They give me a rough estimate of costs, but note it's merely an estimate. We agree to the terms of labor and within an hour or so, my sink is fixed. I pay the plumber, sign any requisite paperwork and they go on to their next house call where someone else's kitchen sink needs fixing.

This is what can be described as a standard interaction with an independent contractor. Notice what I didn't do. I did not tell them how to perform the job, I did not provide health insurance, I did not prevent them from working for others and, perhaps least important but most relevant for our purposes, I did not require them to wear a uniform. I did none of those things because legally, I can't. Unless I want to make that plumber an employee, I'm not allowed to put those kinds of restrictions on them.

This may all sound like technical distinctions that don't matter. Depending on your level of fandom, maybe it doesn't. As it applies to the average UFC fighter (technically designated as an independent contractor), this is a critical difference that profoundly affects their life. Numerous federal and state tax withholdings, pensions, anti-discrimination protection, unemployment insurance claims, worker's compensation coverage, healthcare law compliance, and much more all become relevant once you're an employee.

In short, an employee is under stricter work-related guidelines than an independent contractor, but is also entitled to certain things an independent contractor is not, all of which has to be secured and provided by the employer. That's why many business try to avoid having 'employees' as the costs associated with it can be significant (here's a helpful primer on understanding the difference between independent contractors and employees).

On Wednesday, Bleacher Report obtained a copy of the new UFC Athlete Outfitting Policy. These are a series of guidelines and requirements created solely by the UFC for UFC fighters as it pertains to the new UFC-Reebok apparel deal. The document contains a fair amount of innocuous details, but also an eyebrow-raising number of requirements:

  • "Each fighter's corner people are also required to wear Reebok material, and they will receive the gear upon check-in. If a fighter's corner refuses to wear the product, their fighter will be subject to 'penalties, fines and may be removed from the fight.'"
  • "For weigh-ins, fighters must select from the walkout product given to them upon check-in."
  • "Fighters are responsible for replacement costs for lost merchandise. If a fighter does not wear the merchandise, they will be subject to penalties ranging from monetary fines all the way to being removed from the fight. Each penalty will be based on the individual infraction."
  • "In addition to all fight week-related activities, fighters must also wear Reebok apparel for any UFC-produced show. This includes (but is not limited to): Road to the Octagon, UFC Embedded, UFC Tonight, UFC Countdown, Ultimate Insider and The Ultimate Fighter."
  • "The Athlete Outfitting Policy also means the end of in-cage sponsor banners."

To recap, we have here independent contractors who are provided with accident insurance, sign exclusivity contracts and given mandates about what to wear at every UFC-related (work) activity. This may still fit the definition of what it means to be an independent contractor. After all, it's not hard and fast rules that create the difference, but more a composite sketch. Nevertheless, one gets the feeling if this all does comply, it does so at the margins. None of this even remotely resembles our very typical plumber interaction from before.

In UFC's defense, it's worth pointing out they are not calling what the fighters wear a 'uniform'. They classify it instead as ‘Fight Week gear,' ‘Fight Night kits,' or 'UFC fan gear'. They're not necessarily wrong to do so. In one important respect, the Reebok apparel fighters wear isn't, well, very uniform at all. A few fighters have uniquely branded clothing. Most others will get some measure of customization in terms of type, e.g. board shorts vs. compression, or at least a color scheme that differentiates them. It's not as if they're all wearing the same shirt and pants only differentiated by size.

Yet, the undeniable fact is fighters are being told explicitly what to wear. They are required to do so within the confines of a unique line of apparel made entirely by a single brand. There is no opt-out clause.

Moreover, the ubiquity of the apparel-wearing requirements in all things UFC activities bleeds into territory of telling fighters how to do their jobs. Fighting in the Octagon is only one of many other requirements. One also wonders on what basis the UFC is able to mandate cornermen wear Reebok apparel when said cornermen do not work for the UFC as either independent contractors or employees.

If this entire point seems technocratic, just understand the issue is control. The more control an employer has over what labor does and how they do it, the more labor moves into employee territory. The more labor becomes employees, the more they are entitled to a wide ranging number of federally-mandated protections and benefits.

Others have raised concerns with the UFC-Reebok deal as it relates to sponsorship payouts. The program goes into effect in July, so we won't know how relevant those concerns are until then. It is entirely conceivable any resentment or questions about the confines of this new policy will die off if sponsorship money is high enough. That argument will have to wait until another day.

By the way, if you're wondering how, say, the NFL handles all of this, the answer is simple. For starters, players are employees of teams. Second, while NFL requirements on what is permissible to wear are famously strict, the rules are created in partnership with a players union. Through formal representation, the athletes essentially consent to and help shape eventual protocol.

The UFC, on the other hand, finds itself in uncharted territory. It has created an apparel policy without the participation of its athletes. In so doing, it has changed the method and potential payout of sponsorship dollars. It has also helped push the boundaries of what it means to be an independent contractor by raising questions on what they can be reasonably told to do. If fighters as independent contractors are to go this far to comply, are they actually employees? And if they are, aren't they entitled to a series of benefits independent contractors are not? Depending on the answer, it could have a profound impact on the UFC.

In the short run, this new policy means little. After all, we are months away from July. In the long run, however, this could eventually be viewed as one of the most pivotal decisions in company history.

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