In 1993, the Ultimate Fighting Championships (UFC) appeared on the sports and entertainment scene displaying the sport of Mixed Martial Arts (MMA) to the world. Initially creating a wake of attention throughout America in small isolated circles, the company and subsequently the sport of MMA waned throughout the late 1990’s, in part, due to the perceived brutality and political pressure led by Senator John McCain. Then, in 2001, Las Vegas casino moguls Frank and Lorenzo Fertitta, founders of Zuffa, Inc., purchased the nearly bankrupt company. With greater capital behind the company, reform in rules and a cable-television contract, amid other factors, the UFC exploded, drawing fans in droves.

When the first UFC event was held, the winner of the tournament risked health for a mere $50,000. The pay-per-view buys were a respectable 80,000 for a start-up organization and the event was held in a small venue. Since the Fertitta brothers purchased the company in 2000, the UFC has landed a re-occurring show on basic cable, sold out arenas worldwide and sold millions worth of apparel. They have enlivened the sporting world, delivering incredible entertainment and leaving viewers awestruck.

Although MMA has grown from a sideshow spectacle in the early 1990’s to an international success lead by the American-based UFC, one state has resisted the trend and intentionally closed its doors on MMA…well, at least in part.

As the law currently stands, New York does not allow live MMA competitions to take place within the state. Today, most states have accepted MMA, adopted uniform rules, created governing bodies and regulate the sport rather effectively. In the early days of MMA, it was quite the opposite. Most states outlawed MMA competitions, causing promoters to take their show on the road, which was dramatically detrimental to the growth of the sport. As previously mentioned, with Zuffa, Inc., behind the helm of the MMA ship, the sport has sailed to unprecedented growth and success.

Despite the growth, celebrity, financial gain, attention, popularity, etc. that MMA has garnered, New York, a state known for entertainment and sitting on the cusp of cutting-edge, not only to America but to the world, has not relinquished their seemingly awkward stance on MMA competitions.

As of today, MMA is found all over New York. There are gyms, seminars, fighters, trainers, rings girls and many more players in the MMA community. However, a live professional MMA competition itself is not allowed.

As one could imagine, given the monetary potential of New York, MMA promoters have been salivating for some time with the desire to hold MMA competitions in New York. Therefore, in response to New York’s uncompromising approach, the UFC filed suit in November 2011 alleging New York is violating the United States Constitution on grounds such as denying Freedom of Speech and Freedom of Expression, and Constitutional clauses such as the Equal Protection Clause, Due Process Clause, and the Commerce Clause.

What makes this pending litigation intriguing is the anticipation regarding which causes of action remain before the bench after the pleadings stage and, subsequently, which versions of scrutiny will apply to the situation at hand.

When a party brings a cause of action alleging another party’s conduct is unconstitutional, a specific level of scrutiny, depending on the conduct, is applied to determine if in fact such conduct is unconstitutional. The level of scrutiny that is applied depends on the nature of the conduct. The three levels of scrutiny are rational, intermediate and strict scrutiny.

In reverse order, strict scrutiny is the highest level of scrutiny and applies when a party – here the government – is allegedly discriminating against a “suspect classification” such as race or national origin, or a fundamental right is being encroached upon. This is not the case in the situation at hand.

The next level of scrutiny, intermediate, applies in more situations than seen in strict scrutiny. Intermediate scrutiny can apply when a party discriminates based on a “quasi-suspect classification” such as gender or sexual orientation. If a party is allegedly violating a classification governed by intermediate scrutiny, the party needs to show the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.

Finally, the least rigorous test, rational basis review, applies when no classification, suspect or quasi-suspect, is in force. Rather, this test requires that the governmental action be “rationally related” to a “legitimate” government interest.

Based on the causes of action contained within the UFC’s lengthy 100 page-plus complaint against the state of New York, all three levels of scrutiny tentatively apply. However, after the pleading stage, many claims may be dismissed due to legally deficient arguments and indefinite claims. The overall tone and substance of the complaint reads more like a persuasive thesis paper than a legal complaint, which contributes to the sometimes seemingly deficient arguments.

The most crucial claims alleged by the UFC are the claims founded in the First Amendment, i.e. Freedom of Speech and Expression. The UFC motivations are well-founded and most would agree the New York ban is outdated as it went into effect in 1997, the infant years of the UFC. Today, MMA has evolved significantly and there is little dispute that it is a safe sport, evidenced by only three states still upholding a ban on MMA. However, despite the fact that there are few opponents to the existence of MMA, the UFC’s course of action to overturn the New York ban has created some significant hurdles to overcome.

Unfortunately, for the UFC’s cause, this case will not be decided with public opinion, which surely would secure a KO win for the UFC. Rather, based on the way the UFC has constructed their complaint, the UFC will have to show that MMA has been so accepted into the mainstream that it is held in the same regard, or viewed in the same light, as an artist, dancer, or musician. The suit contends:

“Live professional MMA is clearly intended and understood as public entertainment and, as such, is expressive activity protected by the First Amendment. As is true of ballet, music, or theater, for an audience, attending a live MMA event is an experience that cannot be replicated on a screen.”

Are the courts ready to entertain this argument? Are the courts willing to say that a man who earns a living by punching another man in the head is comparable to a ballerina performing a pirouette or a sissonne? Is a fighter engaged in an expressive art form?

If the UFC’s First Amendment claims survive the pleadings stage and the courts are convinced MMA should be afforded First Amendment protection, then the heavy burden shifts to the state of New York to illustrate how the 1997 ban will pass the strict scrutiny test.

In next week’s installment of Caged Law, more light will be shed on how each respective level of scrutiny applies, and how New York, if necessary, will foreseeably overcome the applicable test.

Photo: New York City skyline (Mike Crawford)

This piece was authored by Chase Buzzell. You can find Chase via his LinkedIn Profile.

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