Shifting the Legalization Debate in New York

On Wednesday, December 1, 2010, I coordinated a discussion on the legalization of mixed martial arts (“MMA”) in New York for the Sports Law Committee of the New York City Bar Association.  The participants included:  (1) New York State Assemblyman Bob Reilly, who is widely considered the voice of the opposition to the legalization of MMA in New York; (2) Nick Lembo, Deputy Attorney General for the State of New Jersey, Counsel to the New Jersey State Athletic Control Board, and involved in the drafting and passage of the Unified Rules for Professional Mixed Martial Arts as New Jersey, in 2000, was the first North American jurisdiction to fully legalize and completely regulate mixed martial arts events; and (3) the members of the Sports Law Committee, i.e., lawyers who represent sports leagues, athletes, and who are in-house counsel for various sports teams and leagues in New York.

The discussion was civil and all participants were respectful, which I think is important to advance the cause no matter how much I may disagree with certain opinions.  The Committee meetings are closed-door and so I will not go into the specific discussions that occurred at the meeting in this article.  However, I can say that the arguments against legalization were the same arguments that Assemblyman Reilly has articulated in other forums, including recently in a Fight Week interview, and Assemblyman Reilly was credibly challenged by both Mr. Lembo and the members of the Committee.

Mr. Lembo had a wealth of knowledge concerning the regulation of MMA – and the lack thereof in New York – and Mr. Lembo did a very nice job addressing Assemblyman Reilly’s arguments.  After the meeting, I had a lengthy discussion with Mr. Lembo about MMA regulation in New York and we discussed one interesting point that Mr. Lembo raised in response to a question during the meeting concerning revenue to New York if MMA were legalized.  Specifically, Mr. Lembo stated that MMA should be regulated because it is a sport, if for no other reason, and while we can all agree that revenue is a good benefit, it is a tangential benefit and should not be central to the movement towards legalization.

By way of background, the main argument – or at least main publicized argument – for legalizing MMA has been the revenue that it will bring to the state.  See e.g., King, David, Punching, Kicking and Wrestling for Revenue, Gotham Gazette, April 7, 2010.  Indeed, a provision in the Governor’s proposed Executive Budget this year would have lifted the ban on MMA in New York for the revenue that purportedly would be generated for the state.

This main argument, however, has been problematic in the fight for legalization.  At the outset, I am not talking about Assemblyman Reilly’s nonsensical economics argument, i.e. his claim that it “ultimately saves [New York] money by not having this sport in New York.”

It is simply not credible to suggest that New York would lose money if the sport was legalized.   For those interested, Assemblyman Reilly’s argument for how the state would lose money if MMA was legalized was articulated in a recent political debate transcribed below:

And why those who advocate this violent and vicious sport for the reason that it will bring money to this state, I, in fact, claim it will not. The owners of ultimate fighting who have recently spent $174,000, giving that money to various legislators and political parties and have paid their lobbyists $10,000 a month for a number of years are in fact in bankruptcy court in Las Vegas at this very moment to the tune of $7 billion. These are the people who some people advocate bringing in to New York.

Notwithstanding the fact that Zuffa is just one promoter (albeit the one promoter that has been up in Albany pushing for legalization), it simply defies logic to suggest that the state would lose money if MMA was legalized in New York and Reilly, to my knowledge, has never fleshed out this argument and so we are left with Reilly’s clear implication that Zuffa’s alleged financial wherewithal could hurt the state’s coffers with no factual or logical argumentative basis.

That said, there is also no question that legalizing MMA in New York would do very little to close the tremendous budget gap plaguing this state.

To be clear, the estimated budget gap for 2011 in New York was upwards of $8B and the Governor’s Executive Budget this year estimated only approximately $2M in direct revenue to the state if MMA was legalized.

Moreover, even under the Zuffa commissioned study that estimated “economic” impact to the state if MMA was legalized, i.e. a figure that would include economic impact to hotels, restaurants, bars, venues, employment to staff and organize events etc., the amount of economic impact was $11.3M for an event “Downstate” and $5.3M for an event held “Upstate.”  Zuffa estimated putting on 2-3 events in New York a year.

Up to $35M a year (it could be more with some other promotions or less depending on where in New York Zuffa held the events) is real money, but let’s be honest with ourselves and recognize that with an $8B deficit this amount is highly unlikely to turn many heads up in Albany and is not the type of money needed to make a compelling argument for legalization based on economics alone.

Moreover, the economics argument is a straw man for the opposition.  For example, New York State Senator Liz Krueger, who is not nearly as invested or knowledgeable about MMA as Assemblyman Reilly, had this to say:

How can we legalize a sport which has shown time and again to have tragic consequence for its participants? Because promoters and even the State can make money off of it? I’m sorry, but no price will make up for the damage this will do to the New Yorkers who partake in this sport.

Senator Krueger has gone further in a Wall Street Journal interview stating that there are a lot of things that could bring money to the state, but that does not mean that all of these things should be legalized.  Similarly, Assemblyman Reilly has hinged part of his argument against the economics on the fact that we could legalize dog fighting and prostitution (like Nevada he jabs) to make money.

While these attempted analogies are weak (or inept), there is still some appeal to the argument that money can’t be the deciding factor when making determinations on controversial issues.  Which leads me back to the earlier dilemma—the MMA lobby has framed the debate in a way that is both not compelling on the numbers (i.e., a maximum of around $35M with a deficit of over $8B) and easily undermined as a practical matter (i.e. ignoring objections based on the violent nature of the sport – yes, the sport is violent — because money will come to the state).

While money should not fall from the debate entirely, it is my view that the debate needs to be re-focused with an emphasis on the sport itself.  A sport that is simply traditional martial arts (and Olympic sports) rolled into one with a significant, developed body of rules, clear and strict medical requirements and requirements that ambulances and doctors are available at the event, referees that are knowledgeable about the sport, and incredible athletes like Georges St. Pierre, Frankie Edgar, and Randy Couture that understand the sport and know how to defend themselves in all areas, including once the fight hits the ground.

The question then becomes how we re-frame the debate.

The answer I propose is to first tap into an underutilized resource in the debate and that is the wealth of knowledge possessed by experienced individuals who have been involved with the sport (and the evolution of the sport) such as:  (1) Mr. Lembo; (2) Dr. Sheryl Wulkan, the lead MMA Physician for the New Jersey State Athletic Control Board, the American Association of Professional Ringside Physicians Ringside Physician of the Year winner for 2010, and a New Yorker; (3) Jeff Blatnick, the Olympic wrestling gold medalist, a long time NJ judge, a New Yorker, and tireless advocate for the sport who played a crucial role in the drafting of the Unified Rules and the push toward legalization;  (4) Ring of Combat promoter and Brooklyn school owner Louis Neglia, who has promoted 33 MMA events since 2000; (5) local gym owners and renowned trainers and coaches such as Renzo Gracie and Phil Nurse of New York City and Ray Longo of Long Island;  and (6) local athletes like Matt Serra, Dave Branch, Nick Pace and John Cholish.

Second, with the right core of these knowledgeable individuals, the debate can be shifted to focus on some of the real issues that warrant legalization, including, inter alia, the statistical safety of the sport based on experience when properly regulated and when proper medical protocol is followed and the proliferation of underground fight clubs and the safety and welfare issues that these fight clubs present that could be curbed if MMA is legalized.  See e.g., Abramson, Mitch, Back alley fights abound as New York heads toward bill to legalize MMA, New York Daily News, June 6, 2009 (“Since the show was unregulated with no state commission oversight, there was no advertising, no physicals, no drug-testing, no rules, no ambulance waiting outside and no one to tell Wall that it might not be a good idea to treat his cauliflower ear himself”).

As Mr. Lembo can tell you (he has been actively involved in educating legislators across the country about the sport), it is this type of ground level movement that has led to legalization in states across the country and there is no reason to think that New York is any different.  It will take time, but the sport needs to be credibly presented as a sport with a tangible impact on New Yorkers and not simply a revenue line-item.

If you read my earlier article, A History Lesson (or History’s Lesson) on Mixed Martial Arts in New York, you will recall that the media had a large impact on the complete reversal in Albany in 1997 that led to the current ban on MMA.  What better way to engage the media than with legitimate information from local individuals involved in the sport and local stories about how the sport (and the ban) is impacting New Yorkers.  Numbers are nice, but when they are divorced from New Yorkers, they are simply not that compelling.

Justin Klein is an attorney at Satterlee Stephens Burke & Burke LLP in New York City where he concentrates his practice in commercial litigation and represents clients in the fight industry.  He regularly addresses current legal issues that pertain to combat sports, including efforts to legalize MMA in New York, at his Fight Lawyer website.  He is a licensed boxing manager with the New York State Athletic Commission as well as the founder and Chairman of the Board of the New York Mixed Martial Arts Initiative, a non-profit organization that gives inner city youth the opportunity to experience the emotional and physical benefits of martial arts training.  Justin lives in New York City where he trains in jiu jitsu and boxing.

DISCLAIMER

The information in this post and on my site consists of my opinion only, i.e., it is not the opinion of my employer or anybody else. In addition, and because this is my opinion, it is not intended to be (and is not) legal advice or an advertisement for legal services. This post provides general information only. Although I encourage interested parties to contact me on the subjects discussed in the articles, the reader should not consider information on this site to be an invitation for an attorney-client relationship.  I disclaim all liability in respect to actions taken or not taken based on any contents of this post. Any e-mail sent to me will not create an attorney-client relationship, and you should not use this site or my site to send me e-mail containing confidential or sensitive information.