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Searchable text of UFC’s lawsuit against New York
By Zach Arnold | November 15, 2011
FIFTH CAUSE OF ACTION
THE LIVE PROFESSIONAL MMA BAN IS UNCONSTITUTIONALLY IRRATIONAL
(Due Process Clause of the Constitution of the United States)
Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 292 as if fully set forth herein.
At all times relevant herein, Defendants have acted, and are acting, under color of state law.
The Due Process Clause of the Constitution of the United States prohibits the government from intruding on liberty without rational reason. Government actions that are irrational or arbitrary are forbidden.
These requirements are especially important when government action deprives one of his or her liberty to engage in a chosen occupation altogether, rather than merely regulating that occupation.
New York’s Live Professional MMA Ban infringes on constitutional liberties: the liberty to participate in activities one would like, to earn a living doing so, to display those activities in public, and to be seen doing so, and to watch live what one chooses to watch. But for the Live Professional MMA Ban, Plaintiffs would—as they allege above—engage in a range of MMA activities in New York, from promoting to fighting to attending and watching to covering on blogs or working on film for the media,
The New York State legislature claimed to be regulating MMA in part for reasons of safety, but this argument is flatly belied by what the legislature did—and did not even try to do. MMA is not illegal in New York. Thousands of people throughout New York have engaged in MMA for years. All that is plainly unlawful is the live performance of professional MMA. Thus, even if MMA were so unsafe as to render it incapable of regulating—which it is not—the Live Professional MMA Ban is simply irrational because it allows for the physical conduct of MMA to occur in New York, but not its live performance.
Moreover, because the Ban is too vague to interpret, countless New York businesses and individuals are possibly in violation of the Ban by virtue of the “advances” and “profits from” provisions. These business owners and individuals run gyms that offer MMA training, train amateurs and professionals, sell tickets, sell advertising, advertise, film, broadcast, write about professional MMA, sell MMA regalia, and engage in numerous other activities that may be said to advance or cause them to profit from professional MMA. Yet, it is simply irrational to believe all of these activities are so threatening as to require criminal sanction when numerous other New York businesses—for example, those that sell weapons, or sell violent videos to youth—are entirely lawful.
Fighter safety does not justify the complete ban on professional MMA, for any safety concerns could be addressed as they are in most other states through regulation. Pronouncements about dangers inherent and unavoidable in professional MMA were not true at the time the Ban was enacted and since have been continually proven not to be true. There are countless professional MMA matches each year. And yet, the injury statistics are entirely in line with, or more favorable than, numerous activities tolerated in New York, including sports that are regulated and other activities that are permitted without regulation.
Nor does concern with the perceived message of MMA justify the Ban. Violent messages permeate countless aspects of life in New York—from the nightly news on TV, to violent movies in theaters, to violent song lyrics on the radio—and yet, live professional MMA is singled out by the state legislature for prohibition.
The impact that watching MMA events may have on children also does not justify the Ban, as the Supreme Court made clear in Brown v. Entertainment Merchants Association, U.S._, 131 S. Ct. 2729 (2011). This is not only because “speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it,” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 252 (2002), but also because, were this its only concern, the State could easily bar children from attending live MMA events (as it currently does for boxing and wrestling matches). See N.Y. Unconsol. Law § 21. In addition, under the Ban, children can watch MMA on network and PPV television, learn MMA techniques at a local gym, and play with MMA toys. The Ban, therefore, does not shield children from exposure to MMA.
Thus, New York’s Live Professional MMA Ban is arbitrary and irrational, and violates the right to constitutional liberty.
SIXTH CAUSE OF ACTION
THE LIVE PROFESSIONAL MMA BAN UNCONSTITUTIONALLY RESTRICTS INTERSTATE COMMERCE
(Commerce Clause of the Constitution of the United States)
Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 303 as if fully set forth herein.
At all times relevant herein, Defendants have acted, and are acting, under color of state law.
The Commerce Clause of the Constitution of the United States grants Congress the power “[]t]o regulate Commerce … among the several States.” U.S. Const. art. I, § 8, cl. 3. This clause has long been understood to create a “dormant” or “negative” authority for courts to strike down certain laws that interfere with interstate commerce. The Live Professional MMA Ban runs afoul of the dormant Commerce Clause in at least three ways.
First, the Live Professional MMA Ban discriminates against interstate commerce. By banning live professional MMA, but not amateur MMA, the Ban can be read to permit local businesses to train fighters and foster MMA participation, while prohibiting national businesses from promoting and staging professional events. New York has a thriving MMA industry.
Numerous gyms throughout the state offer MMA training to countless amateurs. Many non-sanctioned martial arts regularly hold competitions and exhibitions in New York. The Javits Center hosts the MMA World Expo every year, which involves all aspects of MMA, from business seminars to training to panel discussions on the future of MMA. Yet, New York continues to bar out-of-state-produced MMA events, such as those produced by Plaintiff Zuffa.
Second, the Ban’s broad language prevents the numerous interstate products and services required for a live professional MMA event from entering New York’s borders. Yet, while barring this commerce from New York, the State achieves absolutely no local benefits—not even its stated goal of banning the perceived violent message of MMA. MMA is broadcast regularly throughout New York on television and is readily available to children and adults alike. Children and adults train at MMA gyms, and stores in the state sell MMA toys. Furthermore, if limiting children’s exposure to MMA were the motivation of the Ban, New York could simply set an age limit for attendance at live events. The Live Professional MMA Ban likewise does not improve fighter safety. As indicated above, countless New Yorkers participate in MMA, including MMA classes and instruction, sparring, and fighting, with no state regulation whatsoever. Indeed, if the Ban has had any effect, it is fostering more dangerous underground MMA bouts. The only fighters whose performance is banned are the well-trained, medically supervised professional fighters. If the State was interested in safety, it would have regulated live professional MMA, not instituted a total ban.
Finally, the Live Professional MMA Ban exerts, or could exert, an extraterritorial effect on interstate commerce because of the vagueness of the statute and its uncertain enforcement. MMA events regularly occur outside the State of New York, and many New Yorkers attend those events annually. Yet, because of the Ban’s broad prohibition of the “advancing” of professional MMA, it is understandable that advertisers and merchandisers might limit their exposure in the New York market. This, in turn, may affect advertising and merchandising that occurs in neighboring states where live professional MMA is entirely legal.
SEVENTH CAUSE OF ACTION
THE 2001 LIQUOR LAW IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS
(First Amendment to the Constitution of the United States)
Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 309 as if fully set forth herein.
At all times relevant herein, Defendants have acted, and are acting, under color of state law.
In 2001, the New York Alcoholic Beverage Control Law was amended to ban alcohol-serving venues from hosting events at which contestants “deliver kicks, punches or blows to the body of an.opponent or opponents” (the “2001 Liquor Law”). N.Y. Alco. Bev. Cont. Law § 106(6-c)(a). The law thus also bans—and specifically references—combat sports such as MMA. Id. § 106(6-c)(b) (“The prohibition contained in paragraph (a) … however, shall not be applied to any professional match or exhibition which consists of boxing, sparring, wrestling, or martial arts and which is excepted from the definition of the term `combative sport’ contained in [the Live Professional MMA Ban]”). Thus, while the Live Professional MMA Ban appears to apply only to professional, i.e., compensated fighters, the 2001 Liquor Law applies to both compensated and uncompensated live MMA fights.
Based on the legislative history, the 2001 Liquor Law was aimed at preventing intoxicated customers from fighting—something very different from professional MMA. The broad scope of the 2001 Liquor Law, however, effectively prohibits venues throughout New York from hosting sanctioned, regulated, safe performances of MMA, while it explicitly excludes from its scope boxing, sparring, wrestling, or martial arts that are excluded from the definition of “combative sport” in the Live Professional MMA Ban.
Although Plaintiffs take no issue with the intent of the 2001 Liquor Law, the statute sweeps too broadly by prohibiting live professional MMA in any arena that serves alcohol. For this reason, the 2001 Liquor Law is challenged solely as applied to the live performance of professional MMA.
Just as the Live Professional MMA Ban violates the First Amendment by restricting the expressive conduct of live professional MMA, so too does the 2001 Liquor Law as applied to the Plaintiffs, through its restriction of the performance of live MMA in virtually all venues in New York that serve alcohol. Such a restriction prohibits the fighter Plaintiffs from participating in bouts in front of live audiences and expressing their message to spectators in New York, and it prohibits MMA promoters, such as Plaintiff Zuffa, from promoting live MMA events in New York.
For the reasons stated above regarding the Ban, the 2001 Liquor Law, as applied to live professional MMA, is unconstitutional and violates Plaintiffs’ First Amendment rights and their Fourteenth Amendment rights to the equal protection of the laws.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the following relief be awarded:
(a) A declaration that the Live Professional MMA Ban, as applied to Plaintiffs, violates the First Amendment to the Constitution of the United States;
(b) A declaration that the Live Professional MMA Ban violates the First Amendment to the Constitution of the United States because it is overbroad and facially invalid;
(c) A declaration that the Live Professional MMA Ban violates the Due Process Clause of the Constitution of the United States because it is unconstitutionally vague;
(d) A declaration that the Live Professional MMA Ban violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States;
(e) A declaration that the Live Professional MMA Ban violates the Commerce Clause of the Constitution of the United States;
(f) A declaration that the 2001 Liquor Law as applied to Plaintiffs’ live performance of professional MMA violates the First Amendment to the Constitution of the United States;
(g) An injunction preventing Defendants or any other officer, department, or entity of the State of New York from enforcing the Live Professional MMA Ban or the 2001 Liquor Law against Plaintiffs’ live professional MMA promotions;
(h) An award of attorney’s fees and costs pursuant to 42 U.S.C. § 1988(b) to Plaintiffs for the prosecution of this action; and
(i) Such other and further relief as this Court deems just and proper.
Dated: New York, New York November 15, 2011
Of Counsel:
Barry Friedman
40 Washington Square South Room 317
New York, New York 10014-1005
Phone: 212.998.6293
Fax: 212.995.4030
[email protected]
MORRISON & FOERSTER LLP
By: Jamie A. Levitt, Leah A. Ramos, Jonathan C. Rothberg
1290 Avenue of the Americas
New York, New York 10104-0050
Phone: 212.468.8000
Fax: 212.468.7900
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
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Topics: Media, MMA, UFC, Zach Arnold | 12 Comments » | Permalink | Trackback |
I don’t know if this will be successful, but it’s an interesting way to go about it. The UFC tried to work with lawmakers, and it failed. This seems like a logical next step.
We all know MMA will be sanctioned in New York eventually…. just depends on when.
All the press is for the first cause of action. But the heart of the lawsuit is the second cause of action.
All seems sound and vaild to me, everyone knows its a revenge deal by the culinary union for union breaking in Nevada.. Which makes the whole ban invalid and illegal. 😀
Pretty slick.
🙂
I’m not sure if I admire it or despise it.
But at worst it does seem like fair game.
I’d love to hear what prior rulings exist that make people outside the MMA bubble believe it has a snowball’s chance in hell.
Cute, but this lawsuit will go nowhere.
They have a good case for a vagueness claim, which is their second cause of action. The law bans “advancing MMA.” This could mean anything from putting up a UFC billboard in Times Square to standing outside the legislature with a sign that says “legalize MMA now.” The latter is unquestionably protected speech, and the law is so vaguely written that it is unclear whether it is allowed or not. As they point out in the complaint, even filing this suit might be criminal activity under the law.
The first claim is novel but I don’t see it having much traction.
http://mmajunkie.com/news/26124/ufc-on-fox-peaks-with-8-8-million-viewers-for-velasquez-dos-santos-title-fight.mma
So all that talk about the fight not having as many viewers as Kimbo were completely off base, we have a new most watched fight in American MMA history.
The big question is will that fight turn new viewers into PPV buys and will they tune in next time. Of course the first show was going to pop a huge number.
I don’t think a badass one minute KO is going to turn anybody off. If they were tuning in, that’s probably the sort of thing they wanted to see.
Zach,
The Sonnen dog and pony show is so tired at this point. God bless you for listening to that drivel.
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