New York MMA Proponents file Lawsuit to Legalize the Sport Zuffa, LLC Spearhead’s Efforts in Class Action
By Bryanna Fissori
Legal Analyst
MMA proponents have been battling in the New York political arena for nearly 15 years since the 1997 ban of the sport. After numerous attempts to pass legislation lifting the prohibition proved unsuccessful, including one in the most recent session, it is time for a new approach. Zuffa, LLC., parent company of the Ultimate Fighting Championship (UFC) has spearheaded a lawsuit along side a number of MMA professionals and fans who are affected by the ban.
Plaintiff include: Zuffa LLC d/b/a Ultimate Fighting Championship, Jon Jones, Gina Carano, Frankie Edgar, Matt Hamill, Brian Stann, , Danielle Hobeika, Beth Hurrle, Donna Hurrle, Steve Kardian, Joseph Lozito, Erik Owings, Chris Reitz, and Jennifer Santiago.
The two defendants named in the suit are New York State Attorney General Eric Schneiderman and Attorney General for the City of New York Cyrus Vance. These men are responsible for enforcement of the ban.
The plaintiffs assert that the ban “violates numerous provisions of the United States Constitution, including the First Amendment, Equal Protection Clause, Due Process Clause and Commerce Clause.
The heart of the law suit hinges on the successful establishment of mixed martial arts as a form of free speech, placing it under the mighty protection of the first amendment. The case asserts that MMA is both a sport and theater for entertainment purposes, comparing fighters to actors, figure skaters, ballerinas and bands;
“Fighters express themselves in every aspect of the live performance-from the entrances they stage and the walkout music they select, to the clothes they wear, to the way they conduct themselves inside the arena and toward their opponent. Fans come not just for the fights, but also for this entire unified show.”
Barry Freidman is the attorney representing the plaintiffs and he attests that this is the first time he has heard of an athlete asserting a First Amendment right to entertain, but also states that it is not necessary for all sports. Then nature of MMA is unique because it is blend of styles which he referred to as “martial artistry.”
The complaint delves into great detail of the history of MMA and its progression trickling down from each traditional form art such as Muay Thai and Jiu Jitsu to the combining of the pieces to create early Jeet Kun Do and Vale Tudo before transitioning into modern day MMA. The 123 page dissertation which comprises the complaint does not even assert specific causes of action until page 83 or so. It is actually a great read for anyone interested in understanding the roots of the sport and may give readers a better grasp on the topic than many of the books out there specifically designed for that purpose. Subject matter also includes history of the progression of popularity, safety and regulations, the message of MMA, underground MMA, why fighters fight and numerous other areas of interest.
As for the actual grievances the plaintiffs assert seven causes of action;
1. The Live Professional MMA Ban is Unconstitutional as Applied to Plaintiffs
The crux of this cause of action is that the ban itself was unconstitutional because the ban was set forth based on content and message of the sport. In the complaint the plaintiffs clarify the message of the sport as one much different than that of the sport in 1997. It also asserts First Amendment protection .
“. . .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 cause of action fails to expressly link the plaintiffs to the ban in section, though it is easily implied from the previous section about the individual plaintiffs and their connections to the sport.
2. The Live Professional MMA Ban is Unconstitutionally Overbroad and Facially Invalid
“The Live Professional MMA Ban is written so broadly that, in addition to prohibiting the constitutionally protected activity of professional MMA fighters and fans, it also prohibits myriad other forms of speech and expression that are protected by the First Amendment, both inside and outside of New York.”
The letter of the is so prohibitive that it makes the “advancing” and “profiting from” MMA illegal in the state, which the complaint points out, could subject violators to civil and criminal penalties for selling MMA t-shits, writing letters to legislators to repeal the ban, lecturing on the sport, hosting a party to watch event on television or writing for an MMA blog.
There is no doubt as to the over-broadness of the language and the impossibility of regulating such prohibitive stipulations.
3. 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.”
The law does not actually have an express stipulation against amateur bouts being held, though it has been implied that such events constitute a violation. It is also vague regarding whether training in New York for events elsewhere is illegal.
4. The Live Professional MMA Ban Violates Plaintiffs’ Rights to Equal Protection of the Laws
“Further, the Ban explicitly exempts a variety of martial arts, including judo, tae kwon do, karate, and kenpo. There is no basis whatsoever in the legislative history for discriminating between these sports and MMA, and the medical evidence supports no such discrimination. Indeed, MMA essentially is a combination of martial arts, all of which are allowed and regulated in New York. Individually, they are all legal; together, they are banned.”
The cause of action asserts that under the 14th Amendment, generally “likes” shall be treated “alike.” Thus, differentiating MMA from other martial art forms, which are the foundation of the sport and carry similar if not the same safety risks is unreasonable. Though this is true, the court may also choose to remember assertions throughout the complaint that MMA is unique from other sports.
“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.”
5. The Live Professional MMA Ban is Unconstitutionally Irrational
The purpose of the Due Process Clause is to protect liberties from irrational restriction. This section re-asserts the reasons why the ban itself was irrational and claims that upholding it is a violation of the Due Process Clause.
“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. But for the Live Professional MMA Ban, Plaintiffs would—as they allege above—engage in a range of MMA activities in New York, from promoting to fighting to attending and watching to covering on blogs or working on film for the media.”
6. The Live Professional MMA Ban Unconstitutionally Restricts Interstate Commerce
The Commerce Clause expressly grants Congress the power to regulate commerce “among the several states.” Under the umbrella of the Commerce Clause is the Dormant Commerce Clause which is doctrine generally adopted by the Supreme Court and serves to prohibit a state from passing legislation that improperly burdens or discriminates against interstate commerce.
The complaint asserts a three-fold violation of the clause.
1. Competitors train in New York, but national business is not allowed to enter despite the thriving industry in the state.
2. The products and services that accompany a live MMA show are not permitted which achieves no local benefits.
3. Advertisers have limited exposure to New York markets thus causing them to have to restrict their business to surrounding states.
7. The 2001 Liquor Law is Unconstitutional as Applied to Plaintiffs
This cause of action is in response to a law essentially declaring the MMA events canoe be held in a venue that serves alcohol.
“Just as the Live Professional MMA Ban violates the First Amendment by restricting the expressive conduct of live professional MMA, so too does the 2001 Liquor Law as applied to the Plaintiffs, through its restriction of the performance of live MMA in virtually all venues in New York that serve alcohol. Such a restriction prohibits the fighter Plaintiffs from participating in bouts in front of live audiences and expressing their message to spectators in New York, and it prohibits MMA promoters, such as Plaintiff Zuffa, from promoting live MMA events in New York.”
The plaintiffs are asking for an injunction preventing enforcement of the Live Professional MMA Ban and attorney’s costs.
Though the language of the complaint sticks closely to issues surrounding the 1997 ban of the sport, it is widely known that controversies surrounding the “message of the sport” or “safety of the fighters,” were not the only reasons legislation to lift the ban has been repeatedly stalled.
Toward the closing of the New York legislative session this summer UFC President Dana White expressed his belief there were other politics aside from those of the elected officials at play on the issue and it is a widely accepted theory throughout the industry and political realm. Zuffa LLC., is the largest non-union gaming corporation in the country and is owned by UFC owners Frank and Lorenzo Fertitta. White publically asserted his conviction that the Culinary Union is behind much of the anti-MMA effort in New York through funding and coercing with political leaders.
It is no secret that the Culinary Union is continually at ends with Station Casinos, which are also owned by the Fertittas. A few month ago the Culinary Union issued a memo confirming anti-MMA sentiments for the State of New York and outlined reasoning related to the dominant position of Zuffa in the industry and the lack of a fighter’s union. The have also requested Federal Trade Commission investigation of the company.
It is likely that a significant part of the plaintiffs’ motivation for filing suit is an attempt to bypass the influence of the Culinary Union and their “support staff” in the New York State Capitol. This will undoubtedly be test of their powers of persuasion.
The wait between and during legislative sessions has been painfully slow for all New York MMA fans and professionals. Don’t expect the court system to move any faster. In the mean time keep training, keep hoping, keep the faith that someday soon we are all going to be standing in line a Madison Square Garden for the big show.