Legal No Holds Barred: The UFC Takes on New York in a Battle for MMA's Future

Jonathan Snowden@JESnowdenCombat Sports Senior WriterFebruary 10, 2013

Dana White promotes an event in New York ( Michael Cohen/Zuffa LLC)
Dana White promotes an event in New York ( Michael Cohen/Zuffa LLC)

The UFC is facing the fight of the company's life this Wednesday in U.S. District Court Judge Kimba Wood's Pearl Street courtroom, leading a group of plaintiffs contesting a 1997 law that made the sport of mixed martial arts illegal in the state of New York.

It's a battle that has raged for years, quietly at first, but publicly and in earnest in 2007 when the UFC began to attack New York's ban in the press and in the legislature, pumping millions of dollars into the state in attempt to bring the sport to the historic Madison Square Garden.

No one knows exactly how this fight will end. But it may have begun in Tulsa, Oklahoma with a Kenpo Karate expert named Keith Hackney. Six times on that fateful night in December, 1994, Hackney's fist was raised. Six times it fell, finding its mark again and again, targeting an opponent lying flat on his back.

There's nothing unusual about that on its face. Today we see that kind of action on network television, not just prime time on the Fox family of networks, but heavily advertised during NFL football games as well. Even back in 1994, when Hackney took on Joe Son in the first round of the fourth UFC tournament, the nascent sport was already well on its way to being a pay-per-view mainstay.

What was different in this case was the target of Hackney's blows—Son's unprotected groin. As each blow landed the audience and even the battle-hardened announcers couldn't help but cringe. Hackney's attack was undeniably brutal, but, at the time, well within the rules of engagement.

"I didn't bite or eye gouge anybody. They were the only things you weren't allowed to [do], but if you did it, you'd just lost $1,000," Hackney told Sherdog,com. "But nobody said anything about groin shots. I'd probably do some different things today."

Those six punches did much more than weaken his opponent, allowing Hackney to win the bout with a choke in less than three minutes. They became, captured for all time on video tape, the clearest and most visceral example of the sport's potential brutality. When politicians came in earnest to take on the sport, as it was inevitable they would, the Hackney assault was always among their most powerful pieces of evidence.

Senator John McCain used it, along with a handful of the other ultra-violent clips, to help lead a nationwide campaign against the new sport, sending letters to all 50 governors urging them to ban what he called "human cockfighting." And McCain was not alone. Hackney's testicular assault was also a key piece of New York State Senator Roy Goodman's campaign against the sport.

Goodman told his fellow Senators according to a written transcript of their debate in early 1997:

In the particular film to which I refer, which I will show you gladly in my office, or at least unhappily in my office since it's quite revolting, there is a deliberate effort to take a fist and to pummel directly the vital parts which are situated between the legs of one contestant. It is done repeatedly and viciously. It is done with no other intent than to visit the worst kind of injury upon the opponent.

With Hackney's inadvertent help, Goodman was able to make his case. Then Governor George Pataki and New York City Mayor Mayor Rudy Giulani joined Goodman to take their anti-MMA rhetoric to the press, most notably The New York Times, and to the people.

''I think extreme fighting is disgusting, it's horrible," New York Mayor Rudy Giuliani said at the time. "I happen to be a boxing fan, have been all my life. And I know there are issues regarding boxing, and they are serious ones. But this is way beyond boxing. This is people brutalizing each other.''

What had started as an argument with the athletic commission about how to regulate the sport had suddenly become something else entirely. On February 7, 1997, after the Athletic Commission imposed an onerous set of new rules, including a demand for the UFC to construct a 40-foot Octagon on three days notice, the promotion moved their 12th event from New York to Dothan, Alabama.

Weeks later, the sport was banned outright in the state of New York.

"We felt like observers at our own funeral," former UFC executive Campbell McClaren told me in Total MMA. "...Everyone really jumped on the bandwagon and they quickly passed legislation banning us.  We later found out...that it was done in a very illegal and bogus manner...we were still f*cked. It didn't matter."

In the years since, the UFC has taken major steps forward to protect fighter safety. By the end of 1997 they had eliminated the groin strikes Hackney found so effective, and by 2000 were being regulated by neighboring New Jersey. Nevada soon followed, and with them, the world.

New York is the last major market that bars the UFC, which has tried and failed to address the issue through the legislative process. Every year, MMA fans are hopeful New York  will finally join the 45 other states that have legalized and regulated the sport. And, every year, after passing in the State Senate, the proposed bill is stuck in a bureaucratic morass of the State Assembly, failing to make it to the floor for a vote.

 UFC attorney and New York University Law Professor Barry Friedman told me when the lawsuit was first advanced in 2011:

They've had difficulty with the legislative process. It's not that they're losing in the legislative process—they can't even get the thing up to a vote in the Assembly. It's not uncommon, if you can't get the legislative process to work, to go to court. And that's what we did. We've been talking about it since February, but the UFC really wanted to give it all that they could through another legislative round. And they did, with the same outcome they've had in the past. And so we moved forward with the lawsuit.

In August, two of the UFC's seven counts, its reasons to invalidate the New York law, were rejected by Judge Wood, who decided there was a rational basis for the law, both in 1997 and today. Left in limbo were five other counts, all of which will be decided in court on Wednesday.

Of the remaining constitutional claims, Friedman sees great potential in the idea that mixed martial arts is an artistic expression protected under the First Amendment. Citing Bruce Lee, among others, in their claim, the UFC lawyers believe that a fight is much more than a fight. It's creative expression protected by the law:

For First Amendment purposes, there is an essential difference between banning conduct in all circumstances and banning that conduct (as is done here) only when it is done for the purpose of entertaining a live audience. Murder is illegal in New York, whether it is done by amateurs or by professionals, whether it is done in public or in private, and whether an exempt organization sanctions it or not. The State's approach to MMA is entirely different because it allows the conduct generally, and only prohibits that conduct when it is performed with the intent to entertain an audience. Countless people lawfully do MMA every day in gyms across the State; they watch it on pay-per-view and even on the big screen at Madison Square Garden. The State makes MMA a crime only when it is performed for the purpose of entertaining a live audience.

The UFC believes the law to be overly broad, seeking to subject not just the competitors and promoters of the event but anyone who “knowingly advances or profits from a combative sport activity” to criminal penalties. While Senator Goodman denied that was the law's intent, others in the 1997 Senate session believed the law could be read that way.

According to the transcript, Senator Rick Dollinger told Goodman during debate:

I understand...that you as the sponsor did not intend to affect pay per view. But there's nothing in this document that would prevent the prosecution of Time Warner or MSG for putting on pay per view an ultimate fighting match because the language is broad enough.

Senator Franz Leichter echoed those sentiments. "It's not a carefully drafted bill," the Senator said in discussion. "...[T]his bill would seem to imply that any activity in this state related to ultimate fighting, wherever, in Alabama, New Jersey, and so on, could be a criminal act."

The plaintiffs also argue that vague language and 15 years of uneven enforcement have created a law that is nearly impossible to interpret. Lou Neglia’s “Vengeance at the Vanderbilt” shows, for example, included professional bouts and were promoted without issue in the state between 1998 and 2002. On occasion, officials from the Commission sat ringside while amateur MMA matches took place right before their eyes.

After 2001, this same kind of amateur MMA was considered illegal and the State Athletic Commission made great efforts to shut down smaller shows. Legitimate shows fled to neighboring New Jersey and Pennsylvania. In New York, while fights continued, they were carefully hidden from the long arm of the law.

Jim Genia, a long-time MMA journalist who literally wrote the book on New York's underground fight scene, has seen the climate shift once again, as a pro-MMA Chairwoman Melvina Lathan has taken over the Commission's reigns:

Depending on where you live in the state, it’s now possible to take in an MMA event live. There are shows sprouting up on the sovereign territory of Indian Reservations, and amateur MMA competitions are kicking off in ice skating rinks and in armories — all of them happening pretty much unmolested by an athletic commission that went from “search and destroy” mode to laissez-faire in seemingly the blink of an eye.

Former Commissioner Jack Prenderville disagrees with Lathan's contention that the Commission can't ban amateur MMA. And it wasn't just MMA events that got caught up in the confusion. In 2007, the Athletic Commission's General Counsel Hugo Spindola attempted to ban a Pillow Fight League, writing "These types of events clearly do not meet the strict requirements and statutory definitions of either boxing or wrestling...and would be barred.”

It's a confusing history of enforcement, but how couldn't it be? It's a bill that bans "combat sports" without defining what that term means, and allows vague exceptions for "martial arts" without defining what that means either. No one quite understands exactly what is allowed and what isn't as made clear by each Athletic Commission regime reading the law in a slightly different way. 

It's a history that should lend a promoter anything but confidence. UFC president Dana White, however, is keeping the faith.

White told the media at UFC 155:

I plan on being in New York in 2013 for the UFC's 20th anniversary. That's my goal. We're working hard on it like we always were. Our goal is to get into New York in November for the 20th anniversary at Madison Square Garden. We got a card planned. We got some stuff planned...We'll see what happens.


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