BY:  ANTHONY DEFRANCESCO

On November 15^th, 2011, the Ultimate Fighting Championship (“UFC”) filed a lawsuit against New York State officials challenging the constitutionality of the state law banning live professional mixed martial arts (“MMA”) events and associated activities (the “Ban”). [1] Currently, forty-five states regulate MMA via their respective state athletic commissions.  Three state athletic commissions (New York, Connecticut and Vermont) do not regulate MMA, and two states (Alaska and Wyoming) actually lack regulatory bodies to do so. [2]

For years, the Ultimate Fighting Championship has lobbied the New York State legislature to overturn the 1997 Ban on mixed martial arts fighting and, while the NY State Senate has passed bills to sanction MMA on multiple occasions, these measures continually die in the Assembly without being afforded a floor vote.  This repetitive legislative history has prompted the UFC to adopt a new strategy in the form of a federal lawsuit in the U.S. District Court for the Southern District of New York.

The suit “challenges the Ban for violating numerous provisions of the United States Constitution, including the First Amendment, the Equal Protection Clause and the Due Process Clause.” [3] “Specifically, the lawsuit alleges the Ban infringes upon the rights of the fighters who want to publicly exhibit their skills as professionals and express themselves before a live audience, the rights of fans who would like to experience live professional MMA events, and the rights of those who train, publicize or otherwise advance MMA in New York.” Id. The UFC is basically arguing that a live professional MMA event is both sport and theater, thereby making it a form of free speech that should be protected by the First Amendment of the Constitution.

The UFC’s suit also raises an interesting argument based on a recent Supreme Court decision in Brown v. Entertainment Merchants Association, a landmark case that struck down a California law enacted in 2005 that bans the sale of certain violent video games to minors without parental supervision. [4] The relevance of this case to the UFC’s lawsuit stems from the fact that the Ban was partially passed because MMA allegedly promotes a “message of violence” that could be dangerous for children. In Brown, the Court found that video games are a distinct medium of communication protected by the First Amendment. Id. Therefore, video games (like mixed martial arts events) communicate ideas—and even social messages—and state legislatures are constitutionally prohibited from creating “new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.” [5] If the Court finds that one of the primary purposes of the Ban was in fact an effort to prevent the spreading of a message of violence, the UFC’s arguments based on Brown may have a major effect on the case.

On November 12^th, 2011, just three days prior to the filing of the lawsuit, FOX became the first broadcast network in history to show a live UFC event, and the landmark telecast reached an estimated 8.8 million viewers. As the sport continues to grow globally, New York, a state that has hosted some of the biggest sporting events in the U.S., remains the last major holdout. In the end, only time will tell whether the UFC will prevail on the merits of the case, but the organization’s attorneys have certainly crafted a creative and detailed complaint that provides the full history of MMA, breaks down the sport’s rules and elements of safety, and strongly rejects the notion that mixed martial arts conveys a primarily violent message. The complaint alone is a document that truly details the realities that mixed martial arts fans around the world have long known to be true, and that is an accomplishment in and of itself.

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