Thursday, February 14, 2013

Professional MMA Gains a Bit More Ground in NY

Yesterday afternoon I sat in courtroom 18b of Manhattan Federal Court as the lawsuit regarding the constitutionality of New York's MMA ban finally went to trial. In the surprisingly quiet courtroom sat only a handful of observers including veteran journalist Jim Genia, host of Darce Side Radio Mike Stets, TNT Fight Series promoter (and plaintiff) Don Lilly, UFC Associate General Counsel Timothy Bellamy, some legal interns, and a few others.

On November 15, 2011, multiple plaintiffs backed by Zuffa, LLC (parent company of the UFC) filed their complaint that New York's ban of live professional MMA was unconstitutional on several counts. Since then we have seen a paper chase of motions to dismiss, amended complaints, amended motions, and finally yesterday's oral arguments in front of Judge Kimba Wood.

Most of the arguments yesterday were essentially oral regurgitation of the written complaints and dismissal motions from the past year. But even in this, the plaintiff's legal team of Barry Friedman and Jamie Levitt launched verbal surgical strikes on a clearly under-prepared John M. Schwartz, who was representing the office of Attorney General Eric Schneiderman. New York had not sent their A team to argue this case. From the opening statements when Judge Wood asked each side to describe for her what exactly Mixed Martial Arts is it was obvious that Schwartz, who could barely define the sport, was not well prepped.

The Perry Mason moment arrived when the topic of Constitutional Vagueness was raised in relation to New York's allowance of amateur MMA unregulated by the NY Athletic Commission and the state's history of flip flopping with regard to interpretation and enforcement of the ban. The current position the state took at the trial is that under the ban's language, amateur MMA does not fall under the jurisdiction of the current law or the NY Athletic Commission; that the current law only bans professional combat sports (MMA & Muay Thai); and that professional combat sports have a legal pathway if sanctioned as a martial art by one of the third party sanctioning bodies named in the current law.

Many refer to this as the "loophole" which has long been the legal foundation behind the existence of the unsanctioned Underground Combat League and more recently allowed sanctioned amateur MMA and professional Muay Thai to be hosted in New York State. In truth, it is no loophole at all. It is simply the law as written. It only seems a "loophole" because it is crazy to think that a law banning a sport would also include a legal pathway to allow the same sport. But, this "loophole" is not news. Justin Klein, among others have been noting the presence of this legal pathway for years. The big question has always been whether a promoter would risk prosecution for hosting a pro MMA show in NY.

While the "loophole" has been known to exist by pretty much everyone in the NY MMA community, the state has only recently acknowledged it on the record as a result of this lawsuit and has historically shut down events in spite of it (using state alcohol laws). During the trial yesterday Friedman skillfully posited a question to Schwartz regarding which of the state's many legal interpretations he would stand behind on the record in front of a judge. In short, Friedman asked if the state would simply clarify that holding a professional MMA event under the sanction of one of the exempt martial arts organizations was legal and if it would result in prosecution by the AG's office; concluding that if that was the case then there was no need for a lawsuit at all. Schwartz, looked blindsided.

The ball was in Schwartz's court. Judge Wood, also seeing the logic in Friedman's question (and a way to end the trial) pushed for an answer from Schwartz. What was clear to all in the room, including Schwartz, was that professional MMA was legal in New York if sanctioned by a third party organization. Would he simply state it for the record on behalf of the AG's office? The other critical question was whether or not the state would prosecute a promoter who held an event here under the "loophole." For many long torturous minutes Schwartz danced on egg shells, clearly not wanting to be the man who opened the MMA floodgates in NY. In truth, he had no authority to answer any questions about future prosecution. He was going to pass that buck to someone higher up the food chain at the AG's office.

Seeing that Schwartz would not answer the question, Judge Wood ordered both parties to gather the persons needed to make such decisions, arrange to meet before a Magistrate Judge and settle this once and for all. She gave a deadline of two weeks to arrive at a settlement or else it was back to court for everyone to conclude the trial.

Where does this leave us?

In essence we have on record that live professional MMA could be legally hosted in NY if sanctioned by one of the exempt martial arts sanctioning bodies (WKA, USA Judo, PKF, etc). But, we knew this already, didn't we? The critical question is whether or not the state will stand behind this interpretation of the law and not prosecute a promoter who hosts an event. This will be the meat of the settlement talks. My guess is that Attorney General Schneiderman will make no guarantees regarding future prosecution and toss the ball back to the plaintiffs as if to say "Host an event and find out." So, in the end, this really will come down to whether or not a promoter and sanctioning body want to take that risk.

So, regardless of whether this case is dismissed or not, it seems pretty apparent that a promoter who is willing to take a significant risk can hold a professional MMA event here just as the WKA has done with professional Muay Thai, despite the ban remaining in place. But, there is concern with this as well because the language of the ban as addressed in the trial precludes regulation by the NY Athletic Commission. Discussed at length in court yesterday were the safety issues surrounding the ban, lack of involvement by the commission, and poor oversight by many of the sanctioning bodies operating in NY. Entered into evidence was the recent Association of Boxing Commissions letter damning NY on their poor handling of combat sports.

In the end, we are in a critical "wait and see" moment. Will the parties settle? Will the case go back to court for a decision from Judge Wood? Will these events prompt the legislature to finally pass legislation? After all, no legislator likes to have the court make an end run around them. And if there is a settlement or judge's decision that brings NY sanctioned professional MMA that operates outside of the jurisdiction of the state athletic commission (and the state tax collectors), I suspect Albany will act quickly to pass subsequent legislation lifting the ban and providing terms for regulation.

Many people are getting excited thinking MMA has come to New York. We are definitely closer, but we still have to wait and see.

Stephen Koepfer
Coalition to Legalize MMA in NY

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