Zuffa appeal offers opportunity for court to address First Amendment issue in sports

Earlier this month the UFC filed its appeal brief to the Second Circuit Court of Appeals with respect to its dismissed lawsuit against New York.  The appeal focuses on Zuffa’s claims that MMA is protected by the First Amendment and that Plaintiffs have standing to press their challenge that the law prohibiting MMA in the state is unconstitutionally vague.

For those that are subscribers to the Sports Business Journal, I provide a lengthier in-depth analysis of the implications of Zuffa’s First Amendment appeal as a guest columnist in this week’s edition.

This past spring Judge Kimba Wood of the Southern District of New York dismissed Zuffa’s lawsuit which attempted to overturn the law banning professional mixed martial arts in the state.  The UFC retained former U.S. Solicitor General Paul Clement to handle the appeal which was filed this spring in the Second Circuit.

The two primary issues that Zuffa focuses on in its appeal is its First Amendment claim that MMA deserves free speech protection and that the statute is unconstitutionally vague.

We will focus on the First Amendment appeal in this post and address the vagueness claim in another post later this week.

In its appellate brief filed on August, it argues that live entertainment, including MMA is presumptively entitled to First Amendment protection when performed in front of a live audience.  This is based on the belief that implicit in the statute prohibiting MMA in New York according to Clement, is that the New York law restricts live MMA but does not prohibit the practice of MMA in gyms and training facilities across the state.  Thus, the district court, as Clement writes “missed the forest for the trees.”  Essentially, Judge Wood evaluated the law banning pro MMA in the state from the aspect as to whether MMA is inherently expressive when not part of a live performance.  Clement asserts that it is “backwards” rationale.  “As the Supreme Court has confirmed time and again, performing before an audience is what brings conduct that might not otherwise be expressive within the scope of the First Amendment,” writes Clement.  The brief goes on to further argue that “a law that singles out for prohibition public exhibitions of perfectly lawful conduct is plainly problematic…”

It’s clear that MMA falls within the ambit of free speech and so Clement argues that the state of New York cannot contend that the message MMA live events convey is not entitled to First Amendment protection.  He goes on to argue on behalf of the UFC that the district court dismissed the First Amendment claim, in part, due to the fact that even though live MMA conveyed a “particularized message,” it must be “understood by those viewing it.”  Clement negates the belief citing the fact that whether the conduct involves lives performance before an audience, the case law suggest that there is no other need for further inquiry.  As stated above, the law specifically addresses live MMA and since the law specifically seeks to regulate live MMA, there should be no further evaluation as to whether the audience will understand the particular message.

The response brief from New York will be filed the first week of November.  At that point, the UFC will have a chance to reply to the response brief.

Payout Perspective:

The appeal before the 2^nd Circuit will not be decided until sometime in 2016 (if that) as the appellate court does not have a hard timeline to make a decision.  If the court determines that MMA deserves First Amendment protection, it could have bigger implications than just MMA as one might conclude that sports in general could receive First Amendment protection.  Moreover, it may impact technology like live streaming phone apps such as Periscope and Meerkat.  If MMA, and sport by extension, is determined to have First Amendment protection, then what would prohibit an individual from live streaming an event for others to watch online?  Another broader issue also addresses the intersection of a league’s intellectual property versus First Amendment protection.  We have seen leagues and its sponsors attempt to use Periscope with the eventual hope of monetizing it and take advantage of its content.  If the general public is allowed to stream sporting events using their phones, leagues and sponsors face an issue.

Although this was not brought up as a big issue, MMA Fighting’s Marc Raimondi was prohibited from using Periscope during fight week leading up to UFC 189.  It was later clarified to him (according to Raimondi in a subsequent tweet) that he just could not Periscope during the actual night of the fight.  For those wondering, I had reached out to the UFC to see if it had an official policy on live streaming its events.  I did not receive a response.

MMA Payout will keep you posted on the appeal.