Last weekend on MMA Nation, Luke Thomas (editor-in-chief of www.bloodyelbow.com) interviewed former UFC welterweight champ Matt Serra. During the interview Thomas asked Serra, a New Yorker, about his contributions to the effort to legalize MMA competitions in NY State. During the interview Serra mentioned that he didn’t understand the opposition in NY, as all of the legislators he spoke with seemed receptive (or at least not hostile) to the idea of legalized MMA competitions. After hearing the interview I decided to take a look at the situation in NY.
Legal Situation in NY: In a nutshell, MMA is currently illegal in NY State due to a ban on “combative sports” contained in section 5-a of Chapter 912 of the unconsolidated laws of NY. The ban was enacted in 1997 with the support of then-Gov. George Pataki. NY law allows professional boxing, sparring, wrestling, and “martial arts” matches or exhibitions, but “combative sports” are forbidden. “Combative sports” are defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver kicks, punches or blows of any kind to the body of an opponent or opponents.” Chapter 920, section 5-a. Notably, “martial arts” are defined as professional matches or exhibitions sanctioned by certain organizations (e.g. U.S. Judo Association) that are specifically named in the statute. On January 15, 2009 a bill was introduced in the NY State Assembly (Bill No. A02009) that would lift the ban, allowing and regulating professional MMA competitions in the Empire State. As far as I can tell, the Bill is still in the Committee on Tourism, Arts and Sports Development, which will consider the bill and decide whether to refer it to the General Assembly. A similar bill died in the Committee last year.
The Opposition: The main (or at least the most vocal) opponent of legalizing MMA is NY Assemblyman Bob Reilly. Assemblyman Reilly’s position is explained in a report he prepared, entitled “The Case Against Ultimate Fighting in New York State” (Report). The Report is available at numerous websites – I turned up a copy at http://www.mmaweekly.com/blog/ReillyMMA.pdf. Unfortunately, the Report has a fair share of errors ranging from apparent typos (e.g. the report refers to Lorenzo and Frank “Fertilla” instead of Lorenzo and Frank “Fertitta”), to more substantive errors, such as referencing and basing arguments on the rules of the now defunct Pride organization (an MMA organization that was based in Japan, not the US). But what was most interesting to me (as a legal geek) was the way Assemblyman Reilly kicked off his case against MMA. Specifically, in a Section entitled “Ultimate Fighting is Violent,” Assemblyman Reilly begins by stating:
“Defining the violence in ultimate fighting in many ways mirrors the observation of Justice Potter Stewart in his attempt to define pornography when he stated “I know it when I see it”. The Justice was distinguishing between true art and pornography – the same pornography that some people would justify by calling a form of art. So with ultimate fighting – although some would justify it as a form of athletic art, most people ‘know violence when they see it’ and are appalled by the violence of ultimate fighting. Proponents often claim that opponents simply aren’t educated about the sport and once they understand it they will approve of it. This report hopefully dismisses any such claim.”
Report at 6. It is interesting that Assemblyman Reilly chose to quote Justice Stewart’s concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964). Jacobellis was a First Amendment obscenity case, where the Supreme Court was tasked with deciding whether the State of Ohio could ban the showing of a film that it deemed obscene. Contrary to Assemblyman Reilly’s characterization, however, Justice Stewart was not attempting to simply define “pornography” in his concurring opinion. Rather, he was trying to define a subset of pornography that the government could constitutionally proscribe. Specifically, Justice Stewart “reached the conclusion [that] under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. . . . I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Jacobellis, 378 US at 197 (Stewart, J., concurring)(emphasis added).
So, Justice Stewart was not attempting to define simply any old pornography, but rather that narrow subset of pornography (i.e. “hard-core pornography” or obscenity) that was not entitled to constitutional protection. While legalizing MMA doesn’t involve the same constitutional issues as Jacobellis, it would seem that if any loose analogy to the case can be drawn it is that the appropriate question from a legislative standpoint is not whether MMA is violent. It is violent. And so are many other legal sports such as football, boxing, hockey, etc. Under the reasoning in Jacobellis, the appropriate question would seem to be whether MMA is so uniquely violent that it should be illegal. This is where Assemblyman Reilly’s analysis falls short. Specifically, it does not adequately explain why the violence that exists in MMA is unique and distinguishable from the violence that exists in any other contact or combat sport. Some of Assemblyman Reilly’s arguments are addressed below.
- “While there exists injuries in virtually every sport, only in ultimate fighting is injury to an opponent an objective of a contestant.” Report at 6. Boxing is legal in New York, and the last time I checked the objective of a boxer is to punch his or her opponent. Punching people causes injury. Since punching someone will invariably injure them, isn’t boxing in the same boat as MMA? Don’t boxers and MMA fighters have exactly the same “objective” when throwing a left hook?
- “The rules of ultimate fighting which actually promote violence and offer little protection to the fighters are examined in the next section.” Report at 7. This was actually a good idea (i.e. attack the rules of MMA), but unfortunately the Assemblyman focused on attacking the wrong rules (i.e. the Pride rules, which don’t apply to professional MMA competitions in the US).
- “Various studies have concluded that ultimate fighting is more dangerous than boxing.” Report at 7. While referring to “various” studies, the Report only describes one study that directly compares injuries in boxing to injuries in MMA. The study, conducted at Johns Hopkins, apparently reported a higher incidence of “injuries” in MMA when compared to boxing. But the Report does not provide a definition of what the researchers considered an “injury,” or how much higher the incidence of injury was in MMA when compared to boxing. As Johnny C. Benjamin (an orthopedic spine surgeon and assistant clinical professor) points out in a recent article, what Assemblyman Reilly failed to mention is that virtually all of the injuries reported in the Hopkins study were minor (cuts, scrapes, bruises and minor fractures). No major injuries or deaths were reported in the study, with the most serious injuries being eye pokes (no serious impairments of vision were reported). See http://www.huffingtonpost.com/johnny-c-benjamin/mma-legalization-in-the-s_b_188945.html
- “[T]he first priority is to award a fighter for his/her effort to knock out and opponent or have an opponent submit rather than a judgement of offensive and defensive skills. This speaks directly against the argument proponent’s use that ultimate fighting is a demonstration of skills rather than a violent fight.” Report at 11. The second sentence seems to assume that executing a knockout or submission, during an admittedly violent struggle, does not entail a demonstration of skill. A lot of boxing, mauy thai, jiu jitsu, judo, and sambo practitioners would disagree. Not sure I need to say much more about that one.
- And on, and on, and on . . . you catch my drift.
From what I can gather, Assemblyman Reilly thinks MMA should be illegal because . . . well . . . because he doesn’t like it. While that is a perfectly good reason to change the channel or not buy a ticket, it’s not a good reason to outlaw a sport.