Update on Zuffa vs. New York lawsuit

December 18, 2011

Defense counsel for New York has made its appearance and were granted extra time to file its answer to the Zuffa’s lawsuit. The court will allow attorneys for the New York Attorney General and the New York County District Attorney until January 11, 2012 to respond.

As for the Zuffa’s Complaint, MMA Payout takes a comprehensive look at each cause of action.As many of you recall, Zuffa filed suit against the state of New York citing its ban on MMA is unconstitutional. We have taken a look at the complaint and break down Zuffa, et al.’s claims.

The thresh hold issue for Zuffa’s first and most noteworthy claim in this lawsuit is whether MMA deserves First Amendment protection. In its Complaint, Zuffa goes into detail as to why it believes MMA should be protected speech. Essentially stressing the “arts” in Mixed Martial Arts.

Via the Wall Street Journal:

While the arts are protected, no court has ever directly confronted the question of whether athletes have a First Amendment right to be seen in action, said Barry Friedman, a professor at New York University School of Law who is representing the plaintiffs.

In response to this novel argument, the Zuffa Complaint offers this:

“MMA fighters participate in live events for the same reason that an actor plays a crowded hall, a figure skater skates in front of thousands of live fans, a ballerina dances at Lincoln Center, and a band plays in a packed auditorium: because they want todemonstrate their skills before a live and appreciative audience, and interact with that audience during the event. (from paragraph 123 of the Complaint)

“Live professional MMA is not just a sporting event; it is also entertainment and theatre. (from paragraph 124 of the Complaint)

However, opponents will counter that allowing a professional athletic sport First Amendment protection will open the floodgates of litigation for other sports to file suit on these grounds. The implication is that the protection is unfounded and the result of allowing MMA this protection would cause a glut in the judicial system.

Friedman counters this argument as he states in the WSJ article that MMA should be distinguished from other sports as he compares martial arts to dancing.

Breakdown of Zuffa’s Causes of Action:

1. The Live Professional MMA Ban violates the First Amendment

In this claim, Zuffa argues that the Live Professional MMA Ban (“MMA Ban”) is a content-based restriction based on the perceived violent message. (paragraph 238). Zuffa points to the legislative history of the MMA Ban as reason to argue that the purpose of the ban was due to the violent content of MMA. (paragraph 240). Hence, Zuffa concludes that New York misperceives the proper message of MMA. (paragraph 242)

Here, Zuffa argues that since MMA is public entertainment, it is thereby protected by the First Amendment.

Assuming that the court agrees with Zuffa and that it should be protected under the First Amendment, we look to how a Court would analyze the MMA ban. Courts require that governmental regulation of speech protected under the First Amendment be “content neutral.” A “content neutral” law is one that applies to all speech regardless of its message.

According to Erwin Chemerinsky’s treatise on Constitutional Law (something that all law students are familiar with), the requirement that the government be content-neutral in its regulation of speech means that the government must be both viewpoint neutral and subject matter neutral. Viewpoint neutral means that the government cannot regulate speech based on the ideology of the message. For instance, a law cannot regulate against a political ideology but not regulate its opposing view. Subject matter neutral means that the government cannot regulate speech based on the topic of the speech. Thus, a law cannot inhibit one particular subject.

In these interpretations, the government is allowed to regulate speech if there is a legitimate state interest. Its plausible that New York argues that the ban was necessary due to the violent nature of the sport and the safety issues related to MMA.

2.  The MMA Ban is Overbroad and violates the First Amendment

In this claim, Zuffa argues that the MMA Ban is so broad that it regulates certain things that it cannot, by law, regulate. “A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.”  (Chemerinsky)

Zuffa examines the language in the MMA Ban law and indicates how the law was drafted makes things such as attending a “UFC viewing party” or litigating this lawsuit illegal. Zuffa also cites other examples where the law can be construed broadly to make legal conduct and speech illegal.

3. The MMA Ban is Vague on the face of the law and violates the Due Process Clause

“A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. Unduly vague laws violate due process whether or not speech is regulated.” (Chemerensky)

Zuffa points to terms in the MMA Ban which it argues are vague. Zuffa recites relevant portions of the law in paragraph 260 of the Complaint

Section 2 of the Ban states that “[n]o combative sport shall be conducted, held or given within the state of New York.” N.Y. Unconsol. Law § 8905-a(2). Both criminal penalties and civil liability are imposed upon “a person who knowingly advances or profits from a combative sport activity.” § 8905-a(3)

Key terms, “combative sport activity” and “professional match or exhibition” which triggers the analysis for the ban are not defined in a way which would provides definitive guidelines.

Zuffa argues that the practice of martial arts at martial arts schools in New York may or may not be affected by the MMA Ban (paragraph 262). Zuffa concludes that there is confusion in the law regarding exemptions for martial arts schools and/or clubs.

In addition, while the triggering provision in the law appears to be whether an MMA match is a “professional match or exhibition,” the ban appears to restrict amateur fights. (paragraph 268).

4. The MMA Ban is Unconstitutional as it violates the Equal Protection rights of the Plaintiffs under the 14th Amendment

Similar to the first three causes of action, Zuffa argues that New York does not have a rational basis for its blanket ban of professional mixed martial arts in the state. It states that New York does not articulate the reasons for the ban. While safety and messages of violence may be interpreted as the reasons for the law, Zuffa contends that these reasons fall flat since other forms of martial arts are legal in New York and studies show that MMA is a safe sport. In addition, Zuffa argues that there is no rational reason that it bans MMA even though there are other violent forms of speech (i.e., video games, violent movies and music lyrics) that are not regulated.

5. The MMA Ban is Unconstitutional as it violates the Due Process Clause

This cause of action relates to the right that the Due Process Clause in the Constitution prohibits the government from “intruding on liberty without rational reason.” Here, Zuffa argues once again that the MMA Ban is vague and overbroad and does not address the purpose for the law.

6.  The MMA Ban Unconstitutionally restricts interstate commerce

This cause of action relates to what lawyers term the “dormant commerce clause.” State and local laws cannot place an undue burden on interstate commerce. Zuffa argues that the MMA Ban stifles interstate commerce on three fronts.

First, since the MMA Ban is only a ban on professional MMA and not amateur MMA, New York may have MMA training, gyms and exhibitions but New York bars out-of-state businesses from promoting professional events.

Second, the language of the law is so broad that “numerous interstate products and services” required for a live professional MMA event are barred from New York. Here, the argument is that the law does not address the perceived purpose of the law, which is to ban the “violent message of MMA” and improve fighter safety. Zuffa argues that there are no benefits to the ban and states that the ban has forced individuals to turn to “underground” MMA. It also indicates that if the perception of violence was at issue, New York could have found an alternative to a complete ban on MMA. The Complaint suggest it could have an age limit for attendance in live events.

Finally, Zuffa argues that the MMA Ban could have an “extraterritorial effect” on interstate commerce as the vagueness of the statute and uncertain enforcement may leave advertisers and merchandisers to limit its exposure in the New York market. As an extension, it could burden advertisers and merchandisers in neighboring states.

7.  2001 Liquor Law is Unconstitutional as applied to plaintiffs

This cause of action relates to Zuffa’s claims related to the MMA ban as the 2001 Liquor Law prohibits the sale of liquor at both professional and amateur MMA events. It follows that if the MMA ban is unconstitutional, the provision of the 2001 Liquor Law would be unconstitutional as well.

It will be interesting to see if counsel for New York attempts to dismiss Zuffa’s Complaint. The lawsuit attempts to break new ground in the area of First Amendment protection and with that, we may see a motion to dismiss this case before it gets anywhere.


The information in this post is opinion only. 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 article, 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 to send me e-mail containing confidential or sensitive information.

4 Responses to “Update on Zuffa vs. New York lawsuit”

  1. Jose Mendoza on December 19th, 2011 3:26 PM

    Good work Jason! Should we make this post an open invitation to every MMA Lawyer out there? 🙂

  2. Jason Cruz on December 19th, 2011 9:32 PM


  3. Joseph Todoroff on December 21st, 2011 5:15 PM

    did someone say mma lawyer????

    — joseph t. todoroff II esq.

  4. Jose Mendoza on December 21st, 2011 7:27 PM

    Sure did Joseph! Feel free to chime in! 🙂

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