• Ultimate Fighting - It's Like "Swan Lake" - How Come You Can't SEE That?
  • December 1, 2011
  • Law Firm: Proskauer Rose LLP - New York Office
  • Swan Lake, one of classical ballet's most beloved works, has men leaping around on a stage. So does mixed martial arts or "MMA."

    Swan Lake has characters with weird names (Prince Siegfried, The Master of Batons). So does mixed martial arts. (The Dragon, The Thrashing Machine).

    Swan Lake has drama and violence.  So does mixed martial arts.

    There's a difference between Swan Lake and MMA, though. Swan Lake is performed regularly on stages in New York State, but MMA is not. That's because mixed martial arts effectively is banned under New York Unconsol. Law § 8905-a(2), enacted into law in 1997. The law prohibits live matches of "combative sports," a term defined in such a way as to expressly carve out "boxing, wrestling and sparring," and certain specified forms of permitted martial arts. Remaining within the ban is any sport in which the "contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents."

    In Jones, et al v. Schneiderman, No. 11-8215 (S.D.N.Y. filed Nov. 15, 2011), Zuffa LLC, d/b/a Ultimate Fighting, a major promoter of mixed martial arts, and a group of MMA fans, fighters, trainers and others involved in the sport are looking to overturn the statutory ban. The MMA lawsuit plaintiffs argue that MMA matches are "expressive activity" protected under the First Amendment of the U.S. Constitution. That's the same argument that the American Civil Liberties Union has made to protect the rights of pole dancers and erotic performance artists. Barry Friedman, a constitutional law professor at New York University who is one of the attorneys representing the plaintiffs, made the comparison to dancing explicit: MMA is "martial artistry.... The nature of martial arts is a lot like dancing."

    The plaintiffs' complaint, a 105-page essay on the benefits of MMA to individuals and to the economy, makes numerous other legal arguments supporting the plaintiffs' position:

    • The statutory ban on MMA is unconstitutionally overbroad and facially invalid, because it so broadly criminalizes conduct directed at promoting or profiting from "combative sports" that it sweeps in constitutionally protected activities;

    • The ban is unconstitutionally vague, because it is impossible to determine precisely what "combative sports" activities are prohibited;

    • The ban violates the plaintiffs' right to equal protection of the laws, because it is singled out and treated differently from other similar sports events and activities;

    • The ban violates due process of law because it is irrational and arbitrary;

    • The ban unconstitutionally restricts interstate commerce; and

    • A component in the law added in 2001 to prohibit combative sports matches at venues that sell alcoholic beverages is unconstitutional as applied to live performances of MMA.

    Perhaps the plaintiffs will succeed in convincing the federal courts that MMA is an expressive activity entitled to the same constitutional protection as a performance of Swan Lake. They are no doubt hoping for more success than MMA fighter Chuck Liddell had with a different set of judges and another kind of dancing.