The worlds largest mixed martial arts promotion company, Ultimate Fighting Championship, has been brawling with New York Attorney General Eric Schneiderman for two years, hoping to persuade a federal judge to lift a 1997 ban on MMA matches in the state. Schneiderman still hasn’t beat the case, but UFC’s lawyers at Morrison & Foerster barely managed to cling to the ropes (or stay in the cage, as it were) in a ruling Monday.
Southern District Judge Kimba Wood (See Profile) largely sided with the state in Monday’s decision, rejecting UFC’s claims that New York’s Combative Sport ban violates the U.S. Constitution’s First Amendment, and the equal protection and commerce clauses. Wood did, however, green-light the UFC’s claim that the ban is unconstitutionally vague as applied and therefore runs afoul of the due process clause.
The UFC and a collection of fighters, represented by Morrison & Foerster’s Jamie Levitt and professor Barry Friedman of New York University School of Law had argued that MMA bouts are a kind of performance, and that fighters convey a “message” to audiences about their determination and technique.
The judge clearly thought that argument was a stretch, at least as far as establishing standing for a First Amendment claim.
“Music, dance, and theatrical performance are protected because, whether amateur or professional, slap-stick or high-society, such activities are primarily intended to express a message to the viewer,” Wood wrote in Jones v. Schneiderman, 11 Civ. 8215. “Live professional MMA, by contrast, lacks such essential communicative elements.”
Wood had already whittled the case down in August 2012, rejecting the UFC’s original equal protection and due process claims. In that ruling, Wood concluded that the state had an interest in promoting public morality and protecting fighters when enacting the ban (NYLJ, Aug. 21, 2012).
Wood’s ruling undoubtedly trims the case further. But UFC called the mixed decision a victory for the sport in a statement Wednesday. And when we spoke with Levitt, she didn’t sound worried.
“We are extremely happy about the opinion,” Levitt said, pointing to the judge’s decision not to toss the plaintiff’s as-applied vagueness claim.
In allowing that claim, Wood cited statements by the state’s lawyers that the plaintiffs could abide by the ban and still promote a professional MMA event in New York if the event were sanctioned by an exempt organization, such as the World Karate Association. The state changed its position on that question in later briefing.
Levitt said the state’s shifting position shows that “the law is more random than it should be—more than if [MMA] was actually regulated like it is in every [other] state.” She added, “Right now it’s banned, but it’s not banned, which is the worst of all possible situations.”
John Schwartz represented the state. A spokesman for Schneiderman said the A.G.’s office had no comment on the ruling.
For the fourth straight year in 2013, the state Senate approved a bill legalizing mixed martial arts competition, but the Assembly balked at bringing the measure to the floor for a vote. The bill is A6505/S2755.
@|Ross Todd is a reporter for Litigation Daily, an affiliate of the Law Journal. He can be contacted at firstname.lastname@example.org.