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Deconstructing Zuffa’s Lawsuit Against New York

Things have been moving slower than molasses in terms of getting MMA sanctioned in New York, so today Zuffa pulled out another weapon in their arsenal: the lawsuit. Steve gave you the heads-up on the suit earlier, so I’m here to give you a breakdown on this nuclear bomb that’s been activated in the Empire State – and make no mistake, a lawsuit that implores the federal judicial system to take action against a state is no precision instrument meant to galvanize; it’s a weapon of mass destruction meant to leave devastation in its wake. If you want a law that empowers an athletic commission to regulate a sport, the nice, friendly route is to lobby, secure votes and let the system runs its course. The hard-ass route, which is far and away what this is, ensures that legislators are left grumbling. And a grumbling legislator can be bad. Very, very bad. But we’ll get to that later. Now, the facts…

The crux of the lawsuit is that “A live professional MMA event is both sport and theater”, and as such, it’s a form of free speech that should be protected by the First Amendment of the Constitution. As per the current law on the books, live professional MMA events are banned – which means the law is inhibiting something the Constitution protects. We’ll delve into this more in a bit as well, but let me lay down a bit more basic info first.

The plaintiffs (i.e., the parties on whose behalf the suit is for), are as follows:

  • Zuffa LLC – They’re the folks who own the UFC (duh), and their vested interest in having the sport sanctioned in New York is obvious;
  • Jon Jones – The UFC’s light-heavyweight champ, who’s also a New York resident;
  • Gina Carano – The most prominent female fighter in the world, her message about the positives of MMA for women is being blocked by New York’s professional MMA ban;
  • Frankie Edgar – The UFC’s lightweight champ, who resides in New Jersey and would for sure be fighting in Madison Square Garden if the UFC came here;
  • Matt Hamill – A former UFC fighter, Hamill is a New York resident and sports bar owner who’d likely host MMA events if the law allowed;
  • Brian Stann – A decorated Marine, Stann’s positive MMA message is being impeding by the ban;
  • Danielle Hobeika – A grappler and amateur MMA fighter, Hobeika has an MMA photography website based on Chicago-area events, and would have something similar for New York-based events if it were sanctioned here;
  • Beth and Donna Hurrle – These sisters run the website “Gals Guide to MMA”, are New York residents, and have to travel out of state to see live shows;
  • Steve Kardian Kardian is an experienced New York-based MMA coach and trainer;
  • Joe Lozito – An MMA fan who used techniques he’d seen on UFC pay-per-views to subdue a knife-wielding murderer on the subway, Lozito is your Joe Q. Public who’s benefitted from watching the sport. He, too, would like to see events in New York live;
  • Erik Owings – Owings is a former MMA fighter who now runs an MMA school in New York City;
  • Chris Reitz – An MMA fan, Reitz trains and would like to compete in amateur MMA in New York (his home state); and,
  • Jennifer Santiago – A former competitor in the stand-up organization the World Combat League, Santiago is a fan of MMA.

The defendants named in the suit are Eric Schneiderman, who is the State Attorney General, and Cyrus Vance, who’s the Attorney General for the City of New York. These guys are the men responsible for enforcing the law that bans pro MMA and prosecuting the law’s violators.

There are seven causes of action cited in the suit. A cause of action is the point of law that’s allegedly being violated and the argument in support of that assertion. They are as follows:

  • The Live Professional MMA Ban is Unconstitutional as Applied to Plaintiffs – The First Amendment protects free speech, and live pro MMA is a form of free speech that is being infringed upon by the New York State law banning it. Some quotes: “The Live Professional MMA Ban bars professional MMA in front of live audiences based on its content. The legislative history of the Ban, including innumerable statements by legislators and other public officials before and since the Ban took effect, make plain that the Ban was adopted in response to what was perceived to be the violent message of MMA.” Also, “live professional MMA – and all of the related aspects before and after the fight itself – has an expressive content that fighters intend to convey and that fans understand and achieve.” Further, “live professional MMA is clearly intended and understood as public entertainment and, as such, is expressive activity protected by the First Amendment.” This section of the suit goes on to state that “New York misperceives the proper message of MMA.”
  • The Live Professional MMA Ban is Unconstitutionally Overbroad and Facially Invalid – “The Live Professional MMA Ban is written so broadly that… it also prohibits myriad other forms of speech and expression that are protected by the First Amendment, both inside and outside of New York.” What this part focuses on is the text of the law, which, in addition to banning pro MMA matches from being conducted, held or given, makes illegal the “advancing” of pro MMA and the “profiting from” it. On its face, this means that anyone who a) writes to state officials asking them to repeal the ban; b) gives a lecture on the sport; c) sells MMA t-shirts; d) writes for an MMA blog; e) holds a UFC viewing party at a bar; f) broadcasts an MMA pay-per-view event outside of New York into the state; or g) advertises an MMA event on a billboard in the state could be construed as advancing the sport, and is therefore committing a crime. Of course, the aforementioned acts are done just about every day in New York. Is the law on the books meant to chill these Constitutionally-protected acts?
  • The Live Professional MMA Ban is Unconstitutionally Vague – “The Live Professional MMA Ban is written with such breadth and lack of clarity that the citizens of New York, including a number of the Plaintiffs, are unable to tell what is illegal in New York, what is permitted, what they have the liberty to do, and what they may not do.” This is another textual argument, and it points to how the law says nothing about amateur MMA events, and how, although the athletic commission has vowed to shut down underground events where the competitors are unpaid, the legal basis for that prohibition is unclear. As per the law, that “unclearness” could extend to the prosecution of a) fighters training in MMA to compete in amateur events in state or out of state; b) gym owners who train MMA fighters; c) selling tickets online to out-of-state bouts; d) advertising in New York for out-of-state bouts; or e) selling MMA clothing. Are all of these things supposed to be banned as well? No one has a straight answer – which makes the law unconstitutionally vague.
  • The Live Professional MMA Ban Violates Plaintiffs’ Rights to Equal Protection of the Laws – The Fourteenth Amendment is where the “Equal Protection of the Laws” Clause arises, and it applies here because in New York, sports like boxing, wrestling, kickboxing and judo are allowed, but MMA is not. Why should MMA be treated differently? Also, if safety is the reason, why does the law specifically ban only pro MMA bouts? “It is simply irrational to ban only live professional MMA – which is regulated throughout the United States – on safety grounds, and yet permit MMA’s component martial arts, as well as many other sporting events and other activities far more dangerous than professional MMA.” As for banning MMA for its message of violence, “It is also irrational under the Equal Protection Clause to ban live professional MMA because of its perceived message. Even assuming the message of MMA is solely one of violence… still there are numerous other activities neither regulated by nor banned by New York that send blatant messages of violence.”
  • The Live Professional MMA Ban is Unconstitutionally Irrational – “New York’s Live Professional MMA Ban infringes on constitutional liberties: the liberty to participate in activities one would like, to earn a living doing so, to display those activities in public, and to be seen doing so, and to watch live what one chooses to watch.” Whenever the term “constitutional liberties” is used, you know what’s being alleged is a “due process” violation; that’s the bottom line of this argument. Also cited here is the 2011 Supreme Court ruling in Brown v. Entertainment Merchants Association, which shot down a California law banning violent video games because video games – with their storytelling and social messages – are a form of free speech. With its storylines, rivalries, varied cage entrances and pre- and post-fight rituals, MMA is similar, and therefore, as per the suit, protected.
  • The Live Professional MMA Ban Unconstitutionally Restricts Interstate Commerce – The Supreme Court has the Constitutional authority to strike down laws that interfere with interstate commerce, and the MMA ban impedes interstate commerce in three ways. First, by banning live professional MMA but allowing amateur MMA, the law fosters local participation at the expense of national businesses stuck on the outside looking in. Second, “the Ban’s broad language prevents the numerous interstate products and services required for a live professional MMA event from entering New York’s borders.” Third, while MMA is legal and sanctioned in neighboring states, New York’s ban could be affecting advertiser’s exposure to New York markets – which in turn could be affecting their exposure in those neighboring states.
  • The 2001 Liquor Law is Unconstitutional as Applied to Plaintiffs – This one is pretty straightforward. There’s a law on the books, separate from the live professional MMA ban, which prohibits the sale of alcohol at both pro and amateur MMA events. If pro MMA bouts are eventually allowed, this law has to go.

As relief for all of these harms caused upon the plaintiffs, the suit asks for an injunction preventing the defendants (or any other representative of New York State) from enforcing the pro MMA ban (and the liquor law).

So, the heart of the matter is that New York’s ban on live pro MMA bouts is a violation of the First Amendment, and that MMA – with its live show pageantry and the inherit message fighters are imparting on their fans – is a form of protected free speech. Does the argument hold water? Sure. It goes to great lengths to paint MMA as something more than just a sport thick on brutality, that there’s a message of skill and honor and camaraderie being delivered in the cage beyond one fighter simply bashing in the head of another. And if, as the legislative history suggests, New York State banned pro MMA because of its “message of violence”, well, Brown v. Entertainment Merchants Association certainly is supporting case law as to the unconstitutionality of that. Ultra-violent video games like “Grand Theft Auto” are protected by the Constitution; in theory, so too should MMA be.

“MMA has a message, and it was the politicians’ dislike of what they believed that message to be that led to the Ban,” says the suit, and it goes further to quote Deputy Attorney General Robert Farley (in a 1996 legislative hearing on the topic) as saying, “In particular [MMA] sends a dangerous message to our youth at a time when we are searching for ways to effectively communicate with them the need to resolve conflicts peacefully.” Sounds like a slam-dunk, no? It could be. At the very least, it’s compelling.

However, let’s say this suit succeeds. Then what? This is where the nuclear bomb analogy comes in. When you cajole and coax a legislature into making a law, you usually get a law that’s user-friendly. But if you do an end-run around the legislature, and force it to make a law, that law that might not be the best thing for you. A 20% gate tax on all live shows written into the statute? It can happen. A similar astronomical pay-per-view tax? Other prohibitively expensive costs? Yup, it all will go in there, too, guaranteeing that no local promoter can ever afford to do an MMA event in the state while Zuffa visits maybe once every ten years. That’s what a lawsuit can get you. Unfortunately, as lobbying was getting us closer by about only an inch a year, a suit is what we’ve got.

Hopefully it all plays out in our favor. At the very least, though, it forces the issue, and all those against the sport being sanctioned but content to just sweep the matter under the rug (see: Sheldon Silver) will now have to defend their positions.

Some other tidbits in the suit include:

  • The underground fight scene in New York is referenced many times. There’s even a three-page discourse on its existence.
  • Unsure as to how safe MMA is compared to other sports? The suit goes to great lengths to compare and contrast. And I’m glad I don’t play ice hockey.
  • The suit enumerates the leading MMA newsites and blogs, and included amongst Sherdog, MMAWeekly, MMAJunkie and MMAFighting is MMAConvert. Huzzah!

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