In 1997, New York passed N.Y. Unconsolidated Law §8905-a, a statute that prohibits professional “combative sports,” including mixed-martial arts (MMA) events and associated activities. Even speech that promotes MMA is barred. On Nov. 15th, after more than a decade of failed efforts trying to have the law repealed via legislative means, several plaintiffs filed suit in the SDNY challenging the constitutionality of the statute. They include (1) Zuffa, LLC, d/b/a the Ultimate Fighting Championship (UFC), the largest promoter of MMA in the U.S., and (2) several MMA fighters, including Ms. Gina Carano, often called the “Face of Women’s MMA,” #16 on Maxim Magazine’s 2009 “Hot 100” list, and, hopefully, an incurable future stalker of mine. They allege that the law, which targets only pro MMA and exempts boxing and standard martial arts altogether, violates several constitutional protections, including the freedom of speech and equal-protection clause. The UFC wants to stage events in New York, regardless of how that is made legal. Says UFC Vice President Mark Ratner, "Every arena small and big has been asking us to come, and it's just nonsensical that the sport has not been approved yet." Mr. Ratner likely will get his wish soon. The law looks to be doomed, either through judicial action or via the lawmakers and other forces that brought it to life.
1. History and Growth of MMA
MMA, which involves both striking and grappling, often is described as a combination of boxing, Greco-Roman wrestling, and at least a half-dozen different martial arts, including kickboxing, jiu-jitsu, and judo. Fighters face off in a boxing-type ring and score points by landing blows. As in boxing, MMA matches end when one combatant (a) "taps out" - meaning he or she leaves the ring voluntarily – , (b) is knocked out, or (c) when time expires, at which judges select the winner.
MMA traces its roots both to Greek and Roman sport of Pankration, which featured a combination of grappling and striking skills, and the various forms of martial arts that evolved in East Asia over a millennia ago. In the 19th and early 20th centuries, it remained a minor sport in many parts of the world, but steadily gained momentum in Japan and Brazil. The late Bruce Lee is sometimes called the “father” of MMA because he combined the best of boxing, karate, judo, and other martial arts to create “the style of no style.” In 1990, Mr. Arthur Davie, a Los Angeles advertising executive, former Marine, and fan of MMA since seeing a bout between an Indian wrestler and a Thai boxer when on leave during duty in Vietnam, began exploring the idea of whether MMA could be brought to the greater world stage. In 1993, with the help of several people, including the Gracies, a famous Brazilian family known for its dominance of Vale Tudo ("anything goes" in Portuguese), Mr. Davie “officially” introduced MMA in the U.S.
During its early years in the U.S., MMA was a lightly-regulated and self-described “no holds barred” sport. It offered a feral, non-stop, all-body combat alternative to the hands-only and regularly-boring boxing, which often involved bouts dominated by opponents leaning on one another in something akin to a slow and sweaty prom dance. MMA was limited to pay-per-view and obscure cable channels. Over the next 15 years, it steadily grew, not only in terms of popularity, but in organization, safety, and professionalism. In 2008, CBS introduced MMA to network TV via an EliteXC event that drew 6.8M viewers. FOX recently inked a seven-year deal with UFC and hosted a network event that peaked with 8.8M viewers. MMA now reportedly appears on television in 155 countries and in 22 different languages. In January, approximately 1.4 million people watched a single MMA event on pay-per-view that reportedly grossed $110 million. HBO is now allegedly interested in airing MMA events. No longer a pariah sport, it is now sponsored by the U.S. Marines, Dodge, and Harley-Davidson.
2. Of Politics and Pugilists
MMA’s early efforts to gain popularity created a polarizing effect that ultimately led to the creation of §8905-a. Having no advertising budget, it promoted the “savagery” of MMA and adopted catch phrases such as “no rules” and "Two men enter. One man leaves." In so doing, it created shock value that turned legitimate press into free advertising. MMA was the real version of the fake “wrestling” that Americans had been watching for decades. Like a highway accident, the MMA fascinated some and repulsed others. Unfortunately, the “others” included concerned a large block of NY legislators, who compared MMA to cockfighting. ''I think extreme fighting is disgusting. It's horrible," New York Mayor Rudy Giuliani said at the time. “[T]his is way beyond boxing. This is people brutalizing each other.'' Others politicians jumped on the bandwagon, and the law passed quickly.
Depending on whom you believe, other forces beyond the anti-violence crowd were at work. New York was, and is, a world hub of professional boxing, having hosted at Madison Square Garden some of the greatest boxing matches of the 20th century. Some supporters of MMA claim that NY politicians were overtly influenced by some of the most powerful people in the boxing industry, who viewed MMA as a threat to boxing’s future. Former UFC promoter Campbell McLaren alleged that the enacting of the law “was done in a very illegal and bogus manner.”
3. Legal Arguments
The plaintiffs argue that the ban is unconstitutionally vague, irrational, and violates various other protections, including the freedom of speech, the freedom of expression, the commerce clause, and the equal-protection clause.
• Irrationality and Equal Protection
The plaintiffs claim that the law, if it ever was rational, is now really irrational because the claimed impetus for §8905-a, i.e., protecting professional MMA athletes from a no-rules barbarity, is all but gone. They assert that today's professional MMA bouts are highly monitored and governed by new rules for fighter safety, including weight classes and timed rounds. UFC even provides accident insurance for its athletes and covers injuries suffered both inside and outside of the gym or arena. The plaintiffs also argue that MMA is actually safer than other, more mainstream contact sports, such as boxing, ice hockey, equestrian sports, football, and rodeo, all of which are legal in New York. Further, they contend that with grappling and wrestling such an integral part of MMA, many fighter's careers can last much longer than those of boxers because fighters do something other than throw punches to the head and body. Further, unlike football, opponents have to fight face-to-face, vastly reducing the likelihood of a blind-side hit.
If supported by substantial evidence, all of this raises substantial equal-protection issues. During a February 2011 interview with MMA radio, NY Assemblyman Robert Reilly (D-Latham), the loudest anti-MMA voice in the state, appeared to have conceded as much: “Well, . . . I do want to not be, um . . . too contentious when I say this. . . . but today I don’t think professional boxing . . . would be legalized in many states today because of the danger to the fighters.”
• Nonsensical Law
The logic behind other aspects of the law is elusive. Why does it only apply only professional MMA? Says Barry Friedman, one of the plaintiffs’ attorneys, "Amateur bouts under the statute seem to be fine. It's just professionals that are banned, so it sort of doesn't make any sense on its own terms." Why is the mere promotion of professional MMA banned under the law? Will New York citizens wilt if they see an ad for an MMA bout? They already are able to watch MMA on television. If the goal is to protect the populace from violent images, NY may as well try banning many other violent things, including violent movies, TV shows, and video games.
• Freedoms of Speech and Expression
According to Atty. Friedman, no court has ever directly confronted the question of whether athletes have a First Amendment right to be seen in action. “It’s martial artistry,” he said. “The nature of martial arts is a lot like dancing.” "The First Amendment protects what's called expressive conduct, which is doing physical things that express ideas, with anything from a parade to a dance being protected. Our argument here is that mixed-martial arts constitute expressive conduct. I can't think of another example of a sport that's safe and regulated, and has been banned."
Even if the law is found not to infringe on the freedoms of speech and expression, it is difficult to argue that it does not impinge upon personal liberties. All pro MMA athletes are adults who freely choose to participate and operate in a controlled private environment. As one online commenter stated, “What are we trying to do, protect fighters from themselves? What's next, New York legislating the amount of force used in hockey checks or football tackles? Get the hell out of the way and let these adults do what they want to do. The money [that pro MMA could bring to NY] is a secondary benefit. Our liberty to do what we want, accepting the consequences, is the more important issue.”
4. Time for Law to “Tap Out”
In one way or another, §8905-a is on its way out. If the SDNY does not reject the statute, for one or more of the following reasons, others soon will succeed in having MMA exempted from it.
First, in the midst of the worst national economy since the Great Depression and an NBA season that appears to be lost, New York, generally, and the Madison Square Garden owners and workers, especially, need every dime they can collect. As stated by UFC CEO Lorenzo Fertitta, "Denying fighters the chance to exhibit their training and skills before a live audience and denying thousands of New Yorkers the ability to watch their favorite fighters perform live is not only an injustice to them, but to the local markets that would reap tremendous economic benefits from hosting competitions.” Said Derek Crouse, of bleacherreport.com, “For a city that loves to tax everything, why wouldn’t they jump on the golden goose of the UFC, whose popularity is skyrocketing faster than anything in sports?” Finally, with state budgets being slashed and all state employees being asked to do more with less, don’t the offices of the NY Atty. General and NY Dist. Atty. of New York and have better things to do than defend this statute?
Second, the forces of business that donate to political campaigns eventually will convince NY lawmakers to rewrite the law. With both CBS and FOX supporting MMA, other large media entities will not be far behind. Further, expect the news arms of both companies to start reporting about the “ridiculous” NY law. And if one needed any further sign that the Apocalypse is upon the supporters of §8905-a, on November 5th, USA Today reported that Don King is entering the realm of MMA. That’s THE Don King - the face of boxing promotion for the last half-century and an ardent critic and detractor of MMA for the last two decades. King now calls MMA a "sophisticated barbarism," and stated "I'm looking forward to doing [MMA], too, and creating a competition between the UFC and whatever I call the MMA company that I put together." He predicted that MMA will complement, but never overtake, the "sweet science" of boxing. Ignore the sweet hype. This is the functional equivalent of boxing leadership facing reality and throwing in the towel.
Third, where economics and business lead, politics generally follow. As a group, New York Republicans largely have supported MMA for years. Several efforts to overturn the ban through legislation have stalled out for various political reasons, including the latest attempt over the summer. In May 2011, the New York State Senate, which is slimly held by Republicans voted overwhelmingly (42-18) in favor of a bill that would sanction pro MMA, but the bill stalled in the Assembly Ways & Means Committee, which includes Mr. Reilly and reportedly is controlled by Democrats. Mr. Reilly and his colleagues find themselves on an increasingly- lonely island. Even the most liberal Democrats in the country are pushing for pro-MMA’s entry into New York. In 2010, Harry Reid, Democratic Senator of UFC’s home state of Nevada, told the AP that UFC bouts were well-regulated “fair street fights” with “somebody watching every move [the athletes] make.” He added, “I'm going to see what I can do to help [professional MMA] in New York. I'm aware of the issue, . . . I know a few people in New York[, and] I'm going to see if I can talk a little sense to them.” So far, sense has not prevailed.
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP, Chair of DRI's Sports Law & Entertainment Group and member of the Sporting Goods Manufacturers Association’s Legal Task Force. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He also is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees.