The UFC has a right to be irked when the product it traffics, namely MMA competition, is banned or not expressly permitted/regulated in a particular state. A great proportion of its income is directly or indirectly derived from live events which it airs on Pay Per View, may later sell television rights to, and which create legends of the sport. If the UFC only has a limited number of places where it can stage live events, depriving much of the country of the live experience, this may end up costing the organization billions in the long run. Clearly going into areas which will bring in new audiences thereby spawning new fans by the strength of the performances turned in by the fighters, is the best marketing a sport can get. Being present at the event, experiencing the excitement of two warriors locked in a cage, and the unpredictability of the combat, are all factors that help explain the almost 20-year ascent of MMA into sports big leagues. New York has not moved forward with passing regulations which permit MMA in that state, while the UFC sees a potential Klondike in that pugilistic state, hence the UFC has sued for a declaration.
UFC is seeking a declaration from the court that Mixed Martial Arts competitions are a right protected by the First Amendment, and must be allowed to be presented in a live exhibition (by the UFC or any other promoter). The crux of the argument made by UFC lawyers is essentially that MMA competition is analogous to various forms of expressive art, much like ballet, theater, or the other combative sporting contests such as Tae Kwon Do or Karate, all permitted in NY with some gray areas. Since, Mixed Martial Arts competition is a form of expression, and based in art, not permitting it within the state usurps the plaintiffs’ First Amendment rights to free speech and self-expression. There are other claims based in the 14th Amendment and interstate commerce, which may hold merit, but the 1st Amendment claim is the most original.
As essentially sound as that argument may be, and as strong an analogy to performing arts may be made with MMA, the initial hurdle for this suit to proceed are the justiciability doctrines; or whether or not a court is even permitted to hear this case, and whether the plaintiffs are the proper parties to pursue this claim. The burden is on the plaintiffs to show “standing”, which means that they have to show some injury, which may be pecuniary in nature, as in lost income from not being allowed to stage live events. They also have to show causation, which may be traced to the inaction of the state legislature. And finally, they have to show redressability, meaning the court hearing this case can actually resolve this conflict.
I foresee some potential problems in a court accepting this case for hearing, essentially because the court may view this dispute as a “political question”, which means that the state constitution has entrusted a different branch of government with resolving this issue, and the court cannot overstep its authority and presume to act as that other branch and resolve the matter. The court may be overstepping its powers by acting or it may not be able to craft the appropriate remedy even if it did choose to act; i.e., order the legislature to pass a law. It seems to me that since the legislature has chosen not to act to pass legislation regulating/allowing MMA in NY State, the court may view itself as being somewhat presumptuous in ordering the legislature to act by deciding that all of a sudden the legislature has been discriminating against a particular group of athletes, and violating the US Constitution. This injury may simply not be redressable by a court of New York. Additionally, acting in this case may open the doors to a flood of similar free-expression lawsuits by other sports and athletes who may want to claim legal protections under various Amendments; an untenable situation for the courts.
Mootness is another reason the court may decide to refuse to decide the question posed as to the constitutionality of the MMA ban. It appears that much of the legislature is supportive of the regulation of MMA, and a bill may be on the way, or perhaps has already been proposed by a member of one of the houses. If this is the case, a court is not likely to make the requested declaration, because if it did, its decision would mean little besides wasted time if the legislature immediately passed a bill regulating MMA, irrespective of the court’s verdict.
Finally, my personal speculation is that there are powerful organized sports associations such as NFL, NBA, NHL etc., putting sufficient lobbying pressure on legislators to hold the UFC sought legislation stuck somewhere in limbo and off the legislatures’ floor for a vote simply because the competition from UFC for the sports dollar would cut in deeply into any other sporting organizations’ pockets. This is not a difficult prospect to imagine; all large companies spend huge sums lobbying legislators to keep legislation which would cut into their bottom line away from passage. The regulation of MMA in NY State is only a matter of time, and I suspect the established sports leagues are only buying a few precious months. NY is a huge market, and the UFC may have brought a publicity suit, but in my opinion it was a smart move, and will put the pressure on the legislature publicly to put up or shut up. The UFC is sending a message to every state: MMA is here to stay, and the “brutality” and “violence” arguments against it no longer have merit due to its availability on television, and other violent media content pervasive in our culture.