By Carla Varriale
The sport of mixed martial arts (“MMA”) is no stranger to controversy, particularly in New York. New York remains the lone state where professional MMA bouts are illegal. Amateur MMA, conversely, is legal but not subject to regulation. Banned since 1997 (when the sport was markedly different and lacked many safety requirements that are present today), MMA supporters have unsuccessfully tried for the past five years to lift the ban through the legislative process. While the legislative process has stalled, a federal lawsuit is picking up steam and could unravel New York’s ban.
Against the backdrop of the latest failed legislative effort (or, more accurately, the failure of the New York Assembly to vote on legislation after it passed in the Senate), the New York City Bar Association’s Committee on Sports Law hosted a panel discussion on the efforts to sanction professional MMA in New York. The panel included Senator Liz Krueger (D-Manhattan), “Raw Combat” author and journalist Jim Genia, Peter J. Kiernan, former Counsel to the Governor of New York State, 2008-2010 and Justin E. Klein, Esq. of Saterlee Stephens Burke & Burke, LLP.
Sen. Kreuger, an outspoken opponent of the sport, cited her concerns about the risk of injuries, particularly traumatic brain injuries and decried the “dehumanizing” aspects of the sport. Sen. Krueger admitted that she had only watched the sport on television and that she has never attended a professional or an amateur MMA fight. She acknowledged that the sport has evolved from the sort of “no holds barred” or “extreme” fighting that was banned in 1997. The sport has not evolved enough, however, for her to vote in favor of legalizing it.
The panel discussed changes in the sport, including the Unified Rules of Mixed Martial Arts and the introduction of weight classes and other safeguards that have made the sport safer, although it remains a full contact sport. Sen. Krueger noted that she would reconsider her opposition to lifting the ban if her safety concerns were addressed.
Sen. Krueger dismissed claims that permitting professional MMA bouts in New York would generate revenue for New York State, particularly upstate. To the contrary, she expressed a concern that disabled MMA fighters could require medical care for which there was no insurance or a fund in place and that these fighters could ultimately become the responsibility of the State. She rationalized that instead of injecting revenue into the State, lifting the ban could burden the State’s fragile finances. She also posited that lifting the ban would not generate any “new” dollars for New York. Instead, she theorized that professional MMA events would simply siphon consumer dollars away from other entertainment activities in New York.
She likened the MMA proponent’s arguments that lifting the ban on professional MMA would lead to increased revenue, particularly in economically starved upstate counties, to the sort of arguments made for bringing casinos to New York. According to Sen. Krueger, the economic promises never came to fruition and she believed the economic arguments for legalizing professional MMA would be similarly empty.
Author and journalist Jim Genia noted that because of the way the 1997 ban was drafted, there is a loophole that New York has acknowledged. While professional MMA is banned, amateur MMA is permitted. However, amateur MMA is not subject to coherent regulation. A strange twilight presently exists whereby amateur MMA fighters in New York are exposed to enhanced risks because of the lack of regulation or oversight. For example, the panel noted, a fighter can compete as an amateur in New York without being screened, examined or tested as the fighter would be, even in a neighboring state like New Jersey. This means fighters can compete at the amateur level in New York regardless of whether they have recently sustained a concussion or whether they have an illnesses such as Hepatitis C or HIV. These athletes are exposed to conditions that are not present in any other state except New York. In the absence of proper regulation or oversight, Mr. Genia noted that amateur MMA in New York is less safe than it could or should be.
In order to address this dangerous twilight, Sen. Joseph A. Griffo (R-Rome) proposed a bill (S.4877) that would, for the first time, establish rules and regulations for amateur MMA bouts in New York. The Griffo bill would have vested the New York Athletic Commission with the oversight of amateur bouts. Among other things, it would establish a medical advisory board and would prohibit fighters who suffered a knockout or technical knockout or who were rendered unconscious from participating in a match for 90 days. It would have required promoters to provide insurance for participants and reimburse athletes for medical, surgical and hospital care. Although the Griffo bill also passed a Senate vote in 2014, it also was not voted on by the Assembly. Sen. Krueger offered that amateur MMA should also be banned and that banning the sport completely would address all of the safety concerns expressed by the panel.
Former Counsel to Governor David Paterson, Peter Kiernan offered his political perspective. He opined that the merits of the proposed MMA legislation had little to do with the reasons it had stalled. He noted that as long as the Speaker of the Assembly Sheldon Silver has his thumb on an MMA bill, it would not reach the floor of the Assembly for a vote, no matter how meritorious the legislation may be. Twilight, it seems, will continue in New York indefinitely so far as the legislature is concerned.
However, the erstwhile legislative efforts may be moot. New York’s ban is also the subject of a lawsuit that is winding its way through the U.S. District Court for the Southern District of New York. In Jones v. Scheniderman, 11 Civ. 8215 (KMW), the leading promoter of professional MMA and a group of professional and amateur MMA athletes and fans have challenged New York’s ban on MMA. Among other things, plaintiffs contend that the ban is impermissibly vague with respect to professional MMA and amateur MMA. The District Court has already held that given the failure to define the words “professional” or “amateur” within the ban and New York’s haphazard interpretation, the Court must determine whether the ban should be struck down because of as-applied vagueness. The District Court will determine whether the ban fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits and increases the likelihood of arbitrary or discriminatory enforcement. The parties are poised to submit their respective summary judgment motions on these issues this summer. Depending on the District Court’s ruling, years of twilight may soon end in New York. With respect to MMA, the fight is not over.
Carla Varriale is a Partner at Havkins, Rosenfeld, Ritzert and Varriale, LLP in New York where she concentrates her practice on sports and recreation law. This summer, she is leading Columbia University’s School of Continuing Education’s “The MMA Project”, a unique class dedicated to the legal and policy issues underscoring MMA, particularly New York’s ban on professional MMA. She can be reached at carla.varriale@hrrvlaw.com.
